Education Law

A TEACHER'S CLASSROOM SPEECH MAY BE PROTECTED BY THE FIRST AMENDMENT

Timothy Gilsbach — Tue, 19 Jan 2010 10:14:43 -0500

In a case out of the Northern District of California, Sheldon v. Dhillon (N.D.Cal. Nov. 25, 2009), a court has held that teachers may enjoy First Amendment Protections for things they say in class. In Sheldon, a community college teacher alleged that she was terminated from her employment as a result of an in class discussion regarding heredity and homosexual behavior. While there was significant dispute over what was actually said during the class discussion, the court found that the teacher had First Amendment protections for her speech and cited to several other court decisions that held likewise, including decisions involving both college level and school age level teachers. However, the court cautioned that an employer could discipline an employee, despite any First Amendment concerns, if they could show that the discipline was “reasonably related to legitimate pedagogical concerns.” The lesson seems to be that a teacher’s speech in the classroom is protected, but if teachers start saying things that might be clearly inaccurate or outside the scope of instructional speech, an employer may be able to discipline and that determination may be very fact specific.

TWO YEARS MAY REALLY MEAN TWO YEARS ... MAYBE

Timothy Gilsbach — Mon, 11 Jan 2010 15:01:19 -0500

In a new case out of the Middle District of Pennsylvania, Baker v. Southern York Area School District, the District Court applied in a Section 504 FAPE case a strict two year statute of limitations, borrowing the statute of limitations from the IDEA. Looking to a recent case from the Third Circuit, P.P. v. West Chester Area School District, discussed below, the Court simply looked to the filing date of the Complaint and limited the claims to two years prior to that date. However, it appears that there continues to be cases all over the map on how to apply statute of limitations in IDEA cases. It appears that will likely to continue until the issue is decided by the Third Circuit.

AND NOW A WORD FROM OUR READERS...

Timothy Gilsbach — Fri, 08 Jan 2010 09:50:31 -0500

Happy New Year to our readers! As we start 2010, I thought it would be a good opportunity to take a look back at some of the comments we received to some of the 2009 postings.

In response to my posting in July predicting that now Justice Sotomayor would be friendly to school districts in the area of special education, our own Karl Romberger responded that he disagreed and that she likely would not be that friendly to public schools. Naturally, that elicited a response from Nancy asking which is which. The short answer is that has yet to been seen. As I advised in my original posting, trying to guess how a judge turned justice might rule in a particular area is always risking business. I suppose we will just have to wait and see.

In response to my July posting on a case out of the Ninth Circuit related to a blog operated by a teacher and the finding that this does not qualify as protected speech, Michael wrote “[i]t is a shame that we are allowing this type of case law to be put in place.” He further notes “[a] blog is essentially a public journal and it is not the government’s place to judge the quality or content of a private writing.” I believe the court’s view was more that employees of public entities do not have the right to say whatever they want in public about their work and then once that speech begins to have an adverse effect on work, the limits of the protection have been breached.

On my blog posting back in October related to a case out the Ninth Circuit that found that teachers who complain about the treatment of disabled students also qualify for the protections of the ADA and Section 504, even if the teacher is not disabled, Mekei wrote “Very interesting. As a parent I observe that often times, the special ed teachers et al, are considered second class citizens among the other teachers.”

Finally, in response to my posting in late December on Least Restrictive Environment, Rick responded “[s]chools use LRE as an inexpensive way to ‘dump’ special ed kids in a mainstream classroom and let them try to keep up with the rest of the class.” He further notes “schools are relying on law enforcement personnel to handle simple behavior problems that would be taken care of in a special ed classroom.” Rick’s comments only seem to underscore the ongoing debate on how to apply the LRE concept.

As always, the blog welcomes your comments, questions and suggestions and, from time to time, we will try to respond to them.

Providing the Least Restrictive Environment in Special Education: It's Easy to Say, not Always Easy to Apply

Timothy Gilsbach — Wed, 30 Dec 2009 11:57:46 -0500

The issue of providing special education services in the least restrictive environment, also known as mainstreaming, is an area of law in which the basic legal principles may be easily stated, much like the elements of torts. But in practice, it can be difficult to apply and raises not only legal concerns, but also philosophical and educational concerns.

The mainstreaming requirement provides that children with disabilities should, to "the maximum extent appropriate," be "educated with children who are not disabled." See 20 U.S.C.A. § 1412(a)(5)(A). While there may be disagreement about whether this mandate has been met in a particular case, Pennsylvania school districts have met this legal requirement overall.

Mainstreaming can be a complex issue over which parents of students with disabilities often disagree. Its application to particular cases tends to be fact-specific and is an issue that courts, hearing officers, parents and school districts have sometimes struggled with. As the U.S. District Court for the Eastern District of Pennsylvania noted in Greenwood v. Wissahickon Sch. Dist. , there is "inherent tension between the [IDEA's] goal of mainstreaming a disabled student and its requirement to provide an individualized educational program meeting the student's special needs."

In addition, the U.S. District Court for the Western District of Pennsylvania, in Leighty v. Laurel Sch. Dist., emphasized that the focus is on providing the student's education in an "appropriate educational environment."

A review of several recent cases in this area reveals that parents of students with special education needs take diverging views, with some demanding more restrictive placements than those offered by the local school district and others saying districts have not done enough to mainstream their children. These cases illustrate the complexity of the issues faced by school districts in attempting to meet this mandate.

One series of cases demonstrates that parents of students sometimes seek a placement that is more restrictive than that suggested by the school district, primarily in the form of a private placement. For example, in the case of Leighty , the parents of a disabled student sought to have the district pay for a private placement recommended by their expert, a notion that was rejected by the court, which found that the district had educated the student with inclusion into regular education and that approving the private placement at district expense would be inconsistent with the mainstreaming requirements.

In the Eastern District case of Daniel S. v. Council Rock Sch. Dist. , the parents of a student with a specific learning disability placed the student at a private school and then sought tuition reimbursement, contending it was an appropriate special education placement for the student. The court rejected the request for reimbursement, finding that the school district had offered the student a special education placement that included inclusion in the regular education setting and in which the student had previously made educational progress. Accordingly, the court found that the more restrictive environment chosen by the parents was not appropriate.

Finally, in the Eastern District case of Sinan L. v. Sch. Dist. of Philadelphia , the parents of a disabled student sought tuition reimbursement for placement at an out-of-state residential placement, when the district had offered a placement at a private day school. In applying the mainstreaming requirement, the court explained that a residential placement is inappropriate when a less structured environment, such as a day school, will meet the student's needs.

A second series of cases outlines the view that some parents hold of the need for more inclusion than provided by a school district. In the case of Lauren P. v. Haverford Sch. Dist. , the Eastern District was faced with a case in which the school district offered an autistic student a part-time placement in regular education and part-time placement in learning support, or a special education placement, while the parents sought full-time placement in a regular education placement with supports. In upholding the school district's offered placement as appropriate, the court noted that the school district had fully considered the possibility suggested by the parents and considered a "continuum of alternative placements" as part of the process in reaching its conclusion, including fully considering the possibility of accommodating the student full-time in the general education environment. The court further explained that in considering these various options, the school district found that the student would not make progress in math and language arts if placed in the regular education classroom, but would in the learning support classroom, and that outweighed the benefits of mainstreaming the student.

In Greenwood v. Wissahickon Sch. Dist., the parents of a student who was diagnosed with severe mental retardation and static non-progression encephalopathy sought to have the student put in regular education classes with supports. The court found that the school district had made significant efforts to provide the student with a meaningful benefit from inclusion in the regular education classroom, but that the student received little, if any, educational benefit from the inclusion. The court upheld the placement provided by the district, finding that any further inclusion would hinder the student's own educational progress.

Thus, in order to comply with the requirements of mainstreaming, school districts should consider all possible placements for a student — including placement in a regular education classroom — make an effort to make mainstreaming work as much as possible and, most importantly, ensure that the placement provided offers the student an opportunity to learn. School districts do not have an obligation to mainstream students when doing so would impede their ability to learn.

Overall, the statistics show that school districts in Pennsylvania are well aware of the mandate to provide special education in the least restrictive environment. Nationally, the trend shows that in 1999 about 6.5 percent of special education students were placed outside of the public school setting and that number was down to just over 4 percent by 2005. Pennsylvania is near the national average, according to the Pennsylvania Department of Education, which found just over 4 percent of special education students statewide were placed outside of the public school in 2007 and 2008. Looking to the amount of time that special education students spend outside of the regular education classroom, nationally, close to 25 percent of special education students spent more than 60 percent of their time in a school outside of the regular education classroom in 1989, while that number was down to just under 17 percent in 2005. In Pennsylvania, that number was lower than the national average at close to 11 percent in 2007 and 2008. It is clear that Pennsylvania school districts are not only aware of their mandate to provide special education in the least restrictive environment, they make a diligent effort to meet that mandate and have had success.

While parents of special education students and school districts may agree to disagree over how to meet the mandate of providing special education in the least restrictive environment or whether that mandate has been meet in a particular case, in this area of the law, not only are Pennsylvania's school districts aware of the requirement, they have clearly made a diligent effort to meet it.

This blog posting originally appeared in the December 29, 2009 edition of The Legal Intelligencer and is posted here with permission.

THIRD CIRCUIT GIVES SOME GUIDANCE ON STATUTE OF LIMITATIONS UNDER IDEA AND SECTION 504, BUT STILL LEAVES SOME ISSUES UNRESOLVED

Timothy Gilsbach — Wed, 11 Nov 2009 08:42:55 -0500

The Third Circuit Court of Appeals has issued a decision addressing the issue of the statute of limitations, or the time limits for bring a case, under both Section 504 and IDEA. In P.P. v. West Chester Area School District the only clear guidance that is given is that the statute of limitations provided for in IDEA is also applicable in Section 504 cases. Section 504 does not provide any statute of limitations. The Court also indicates that the exceptions available to the statute of limitations under IDEA would also be available under Section 504.

However, the Court leaves unanswered two issues. First, the Court refused to address whether the statute of limitations under IDEA is applicable at all to cases in which the alleged improper conduct occurred prior to the addition of the time limits in IDEA, which were new to the statute as reauthorized in 2004. The other unresolved issue is whether a strict two year statute of limitations applies or whether the “two plus two” concept is applicable. One approach would limit cases to strictly looking to alleged wrongful conduct two years prior to the filing of the Due Process Complaint. The second approach allows looking back two years from the date the parents of the student knew or should have known of the alleged wrongful conduct and then allows the parents two years from that date to file the claim. Thus, in theory, under the second approach you might be able to look at a four year window in total.

The Court does not address these two remaining issues and has left them for another day.

UPDATE ON CHANGE IN CALENDAR CASE

Timothy Gilsbach — Wed, 11 Nov 2009 08:30:31 -0500

Back in October, I reported on a case out of Hawaii where school districts changed the school calendar to have Furlough Fridays in a money saving effort. Parents of a number of special education students filed suit claiming the change amounted to a change in programing under IDEA, without parental consent. While not yet ruling on the merits, the U.S. District Court has at least hinted at what the answer might be on this question. The Court has refused to issue a preliminary injunction to stop Furlough Fridays, finding that it believes the plaintiffs were unlikely to succeed on their claims. Thus, we have a hint of where the Court may be going, but a final decision may be some way off.

EXPANDED LEAVE FOR MILITARY FAMILIES UNDER FMLA

Timothy Gilsbach — Wed, 04 Nov 2009 14:01:27 -0500

President Obama has signed into law the Fiscal Year 2010 National Defense Authorization Act , which provides for additional leave rights for military families under FMLA.

First, there is a provision relating to qualifying exigency for up to twelve weeks of leave for family members of both active duty service members and national guard and reservists who are deployed to a foreign country. Previously, the leave was only for National Guard and reservists. Exigency leave is permitted for short-notice of deployment, military events and related activities, childcare and school, financial and legal responsibilities, counseling, rest and recuperation for five days, post-deployment activities and other activities as agreed with employer.

Second, caregiver leave has been extended to include veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness. The veteran must have been in the armed forces, including the National Guard or reserves, at any time five years prior to the treatment and the condition being treated must be incurred in the line of duty or a pre-existing condition aggravated in the line of duty.

DOES AMERICANS WITH DISABILITIES ACT AMENDMENTS ACT OF 2008 APPLY RETROACTIVELY?

Timothy Gilsbach — Mon, 02 Nov 2009 13:55:24 -0500

In 2008, President Bush signed the Americans with Disabilities Act Amendments Act (“ADAAA”), which expanded the protections of the ADA to include those who have an actual or perceived physical or mental impairment “whether or not the impairment limits or is perceived to limit a major life activity.” In passing this bill, Congress expressly rejected several Supreme Court decisions that took a more narrow view of the ADA. The question that remains is what standard applies to cases of alleged discrimination that occurred prior to the ADAAA?

It appears that several courts have looked at this issue and reached different conclusions. In Rohr v. Salt River Project Agricultural Improvement & Power District, out of the Ninth Circuit Court of Appeals, while not addressing the issue directly, the court noted that “the ADAAA sheds light on Congress’ original intent when it enacted the ADA” in 1990 and suggests it may be appropriate to read the amendments to allow for protection to a broader class of individuals, even in cases where the alleged discrimination occurred prior to the enactment of the ADAAA. However, the United States District Court for the Northern District of Indiana reached a different conclusion in the matter of Brooks v. Kirby Risk Corp. and found that the more limited standard endorsed by the Supreme Court applies to claims prior to the ADAAA, which went into effect in January of 2009, should be applied to these types of cases. The Brooks court notes that the Seventh, Fifth, Sixth and D.C. Circuit Court of Appeals have taken the view that the broader protections of the ADAAA only apply to actions of alleged discrimination after its enactment, while the Ninth, Tenth and Eleventh Circuits have declined to decide the issue, but at least implied they could by applied to actions prior to the effective date of the ADAAA.

Interestingly, if the Circuit Courts continue to split on this issue, it may be the Supreme Court, whose analysis of the ADA was expressly overturned by the ADAAA, that may get the last word on this issue. Unless, of course, Congress decides that the Supreme Court gets it wrong and decides to amend again.

ADA AND SECTION 504 ANTI-RETALIATION PROTECTIONS NOT LIMITED TO INDIVIDUALS WHO ARE DISABLED

Timothy Gilsbach — Thu, 29 Oct 2009 07:22:24 -0500

The Ninth Circuit Court of Appeals has found in the case of Barker v. Riverside County Office of Education (October 23, 2009) that the anti-retaliation provisions of Section 504 of the Rehabilitation Act of 1973 and the ADA apply even if the person who claims to have been retaliated against is not themselves disabled. In Barker, a special education teacher voiced concerns that her employer’s special education program was not in compliance with federal and state law and then, along with a coworker, filed a complaint on this alleged non-compliance with the U.S. Department of Education’s Office for Civil Rights. In response to this complaint, according to the employee, the school district retaliated by reducing her case load, intimidating her, excluding her from meetings and other activities that, according to the employee, led to an intolerable work environment.

The employee filed suit claiming she had been retaliated against for filing the complaint and voicing concerns about the alleged non-compliance of the district’s special education program. The court was asked to determine whether this teacher, who herself was not disabled, was afforded the protections of the anti-retaliation provisions of the two statutes. Looking at both statutes the court found that both protected "any person" who was retaliated against. The court further noted its belief that Congress intended to protect other individuals in recognition of the fact that disabled individuals may need assistance in vindicating their rights.

The lesson of Barker is clear. If school districts or other educational entities have employees who complaint internally or to outside agencies about the treatment provided to disabled students or employees, they must be treated the same as other employees and any appearance of retaliation for the complaints must be avoided.

IS A CHANGE IN THE SCHOOL CALENDAR A CHANGE IN PROGRAMING?

Timothy Gilsbach — Thu, 22 Oct 2009 08:10:05 -0500

In Hawaii, students will now be getting seventeen Fridays off this year and seventeen next year in an effort to save money through a furlough of teachers. However, several lawyers representing a group of students who qualify for special education have filed a suit trying to stop the plan. The argument is that by taking seventeen days out of the school year, this is a change in programs and services the disabled children receive. Given that the parents of these students were not consulted prior to this change, the suit alleges it violates the rights of the parents under IDEA. The suit seeks a temporary restraining order and the first furlough day is this Friday. Thus, we may know very shortly if in fact such a change in scheduling is a change that requires parental consent under the IDEA.

CONGRESS TAKES AIM AT SUPREME COURT'S RULING ON ADEA

Timothy Gilsbach — Mon, 19 Oct 2009 09:51:12 -0500

As I predicted back in June, when the Supreme Court issued it ruling in Gross v. FBL Financial Services, Inc., Congress has taken aim at trying to reverse the Court's decision legislatively. In June, the Supreme Court's decision in Gross did away with burden shifting under the ADEA, in which once the employee established that age was at least part of the reason for the adverse employment decision, the burden shifted to the employer to show it was not. In Gross, the Court ruled the burden is upon the employee the entire case to show the adverse action was taken against him or her as a result of their age. In response last week, The Protecting Older Workers Against Discrimination Act was introduced in Congress. The bill, if passed, would essentially overrule the decision in Gross by requiring employers, once an employee establishes that age was a factor in an adverse employment decision, to show it complied with the law. There will be further posts on this bill as it makes its way through Congress.

SENATE BILL 1007 ATTEMPTS TO LIMIT THE POWER OF "LAME DUCK" SCHOOLS BOARDS TO APPOINT OR DISMISS A SUPERINTENDENT

Timothy Gilsbach — Tue, 25 Aug 2009 08:29:01 -0500

Currently pending before the Pennsylvania State Senate is Bill Number 1007, which would prevent a school board from appointing or dismissing a superintendent where three or more of its members have lost their bids to remain on the board in the primary elections. The nature of the issue is that school board members run for re-election in the primaries in May and, even if they lose in the primary, continue to sit on the board through the regular election in November and until the new board is installed in December. In the past, the board, including the members who have been “voted off”, could take actions to either appoint or dismiss a superintendent during that time-frame and Senate Bill 1007 attempts to limit the ability to do so.

Currently, the School Code requires that a board meet “during the last year of the term of the district superintendent” in order to “elect or approve a properly qualified district superintendent” to serve a term of three to five years. The School Code further requires that at least one hundred and fifty days prior to the expiration date of the superintendent’s term of office, the board vote on and advise the superintendent as to whether he or she will be retained or that other candidates will be considered for the position. Generally, if the board fails to do so, the superintendent’s contract is automatically renewed.

The issue was squarely addressed by the Pennsylvania Commonwealth Court in the case of Burns v. Bd. of Directors of the Uniontown Area Sch. Dist., and it has been held that a board may approve a contract for a superintendent in the time-frame between a primary election and the installation of the new board. In Burns, in May of 1997, three sitting members of the school board lost their bids for re-election in the primary and then on July 1, 1997, the sitting superintendent entered the last year of his term. At a July 11, 1997, meeting of the board, the board voted 6-1 to elect the superintendent to a new term of five years of July 1, 1998 through July 1, 2003 and approve the terms of his contract for that term. The Burns Court explained that under the current statutory scheme, the school board is empowered to elect a superintendent during the last year of his or her term of office. The Court further explained that by outlining the procedure provided for under the School Code, the legislature “excluded by implication any exception to that procedure in election years for school board members” and raised concerns that if the board didn’t act and the new board did not act promptly enough, the superintendent’s contact would be renewed by default.

Interestingly, the members of the Pennsylvania Senate are not the first to question the idea of a lame duck school board being involved in the process of appointing a superintendent. In the case of Demi v. Clearfield Area School District, the Clearfield County Court of Common Pleas found prior to Burns such an action was improper under the School Code. The Demi Court seemed to be particularly concerned with the fact that the incoming board “campaigned on a promise to give serious and through consideration to the matter of renewing the superintendent’s contract” and the old board’s action essentially thwarted the new board’s ability to do so.

Senate Bill 1007, in its current form, would preclude a school board upon which three or more members “have been defeated in the primary election” from renewing or rescinding the contract of a superintendent, except for cause, until a new board has taken office. The Bill further limits the provision to when the superintendent has 11 or more months remaining on his or her contract. The Bill is still pending before the Senate and its final form may change. Further updates on the Bill’s progress and any changes will follow.

Religion in Public Schools - A Review of Some Recent Cases

Timothy Gilsbach — Thu, 20 Aug 2009 15:42:15 -0500

This summer has seen several opinions from around the country on the issue of religion in public schools. Here is a brief synopsis of several cases.

In the case of Roark v. South Iron R-1 School District, the Eight Circuit Court of Appeals upheld in part a decision that barred a school district in Missouri from allowing representatives of Gideons International from distributing Bibles to fifth graders during the school day, a thirty year old tradition. While decision to end the practice is certainly not shocking, the decision does offer some insight to school districts that are faced with a situation of having old traditions that need change. In light of the lawsuit about the Bibles, the local school district adopted a new policy related to the distribution of literature in its schools, which was also challenged. The District Court, seeing a tradition of Bible distribution, held the new policy was done for the purpose of promoting religion. However, the Eight Circuit disagreed and stated that the new policy was facially neutral, applied to all groups that wished to distribute literature in the schools and had not yet been put into practice. Thus, districts faced with attempting to adopt policies to change outdated practices can do so, if the policy is facially neutral, applies to all group and, when put into practice, is applied in a content neutral manner.

In Christian Legal Society v. Eck, it was held that a public law school may properly withhold funding from a religious group that prevents membership on the basis of religion and sexual orientation. In Eck a public law school provided funds through a mandatory student activities fee, but had policies that required groups that accepted the funds must be open to all students and not discriminate on the basis of, among other things, religion and sexual orientation. The Christian Legal Society required members affirm a statement of faith that would exclude non-Christians and homosexuals from membership. The law school refused to provide the group funding, but did allow them access to school facilities and all other law school services that other groups had access to. The Court upheld the decision of the law school finding the policy was neutral, both on its face and its application, and that the school allowed students in the group access to all other services available to other groups. This case is another reminder that policies and practices must be neutral to the issue of religion to stand up in court.

In Corder v. Lewis Palmer School District No. 38, the Tenth Circuit Court of Appeals upheld the requirement by a school district that students speaking as valedictorians at graduation provide their speech to the administration for approval and could be disciplined if they sway from the submitted speech. In this case, a student submitted her speech, but then deviated from it when the speech was given by inviting the audience to find out more about a relationship with Jesus Christ. The student was required by the school to issue a public apology prior to receiving her diploma for any offense the statement may have caused for deviating from the speech she submitted. The Court reasoned that graduations are a school activity over which the school could exercise control and it had the ability to have more control over the activity, as opposed to speech not supported by the school. With the analysis, it would be interesting to see if the student had simply yelled this statement out if the speech would be protected. Nonetheless, the lesson for schools is that if you sponsor the activity, you are able to have more control over what is said.

Finally, a little closer to home in Busch v. Marple Newtown School District, the Third Circuit Court of Appeals upheld the action of a school district which would not allow a parent to read scripture as part of a presentation to her child’s class. The presentation was part of a week long project in which each student was the student of the week and one component was that the parent of that student was allowed to present something to the class. The Court held that given the student was in kindergarten and the students in the class were required to be there, the presentation could appear to be an endorsement of religion. In addition, because other parts of the project allowed the student to voice his religious views, for example he made a poster that included among other things a drawing of his church and the statement that he enjoyed going to church, the decision of the school was not based on discriminating against the parents’ religion.

Third Circuit Denies Reimbursement when Medical Needs Can be Separated from Educational Needs

Timothy Gilsbach — Wed, 12 Aug 2009 13:29:30 -0500

In the case of Mary Courtney T. v. School District of Philadelphia, in which a decision was issued July 31, 2009, the Third Circuit Court of Appeals has held that where medical and other needs of a special education student can be separated out from the educational problems and needs of the student, the school district is not responsible for payment of those services which are not educational.

In Mary Courtney T., the student was placed in a long-term residential psychiatric treatment center, which did not have educational accreditations and had no on-site school, special education teachers or school affiliations. The evidence in the case, according to the Court, showed that the student's treatment at this facility was medical, despite the fact that it contained what could arguably be classified as educational components.

The Court emphasized that it was not the tools used, but the goals of the program that are to be used to determine if the program was educational or medical. The Court further explained that because the student's education was impeded by a complex and acute medical condition, and not a lack of educational services or a specific kind of placement, it was not the responsibility of the school district to address this need. The Court distinguished this case from other cases where a simple change in placement, without the need for more extensive medical intervention, would allow a student to access his or her education.

The Court explained that there must be a link between the treatment provided and the child's learning needs to qualify for reimbursement under the IDEA. Put another way, the Court explained it "must consider whether the residential placement ... was necessary to provide [the student] with special education." The Court looked at the program provided to the student and found that it was related to her medical needs, not her learning needs, and found that it did not qualify for reimbursement.

Finally, the Court took an interesting approach on the issue of reimbursement, by skipping the normal first step of determining whether the school district provided an appropriate placement and only looked at whether the placement chosen by the parents, the psychiatric treatment center, was educationally appropriate.

Commonwealth Court finds Office of Dispute Resolution Manual is Not Binding

Timothy Gilsbach — Thu, 30 Jul 2009 15:56:18 -0500

The Pennsylvania Commonwealth Court has held that the Office of Dispute Resolution Manual does not have the force of law. In the case of Bethlehem Area School District v. Diane Zhou the Commonwealth Court denied the request of a parent of a gifted student to have the transcript of a Gifted Due Process Hearing translated into Mandarin Chinese. In reaching this conclusion, the Commonwealth Court found that the reliance upon ODR's Manual to support a right to the requested translation was insufficient, as the same does not have the force of law. The Court found that only the properly adopted regulations had the force of law. While the regulations at issue have since changed, and now require the provision of a transcript to the parents in gifted due process hearings, as has long been the case in special education matter, it is not clear what effect the ruling could have on other parts of the ODR Manual which are not contained in the more formal regulations regarding these cases.

Commonwealth Court Halts Release of Home Addresses of Public School Employees

Timothy Gilsbach — Thu, 30 Jul 2009 11:03:03 -0500

On July 28, 2009, the Pennsylvania Commonwealth Court entered the dispute over whether the home addresses of public school employees are a matter of public record under the Right to Know Law. In the past, the Pennsylvania Office of Open Records has taken the view that the addresses are not protected from release under the exceptions included in the Right to Know Law, as the only exception provided for home addresses is for law enforcement officers and judges. The Commonwealth Court has now stayed the release of any addresses of public school employees and enjoined the Office of Open Records from Ordering the release of such addresses.

For now, Districts currently facing a request for home addresses may safely refuse to provide them. The Commonwealth Court has indicated that an opinion will follow and further details will be post on the blog when that occurs.

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

Timothy Gilsbach — Tue, 14 Jul 2009 16:56:31 -0500

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

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

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

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

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

This blog posting appeared in The Legal Intelligencer on Monday, July 20, 2009.

Teacher's Blog May Not Be Free Speech

Timothy Gilsbach — Mon, 13 Jul 2009 15:26:00 -0500

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

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

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

SUPREME COURT CLOSES OUT ITS TERM BY REFUSING TO HEAR TWO SCHOOL RELATED CASES

Timothy Gilsbach — Mon, 06 Jul 2009 12:12:28 -0500

The United States Supreme Court finished out its term last week by refusing to hear two cases related to schools.

First, in the case of Truth v. Kent School District the Court was asked to rule on whether a school district could refuse to recognize a Christian club named "Truth." The school refused to recognize the group on the basis that its name might be a concern and that members were required to sign a statement of Christian faith, which violated the district's non-discrimination policy. The club filed suit claiming the action violated the Equal Access Act and the First Amendment, but two lower courts disagreed. The Supreme Court declined to hear the appeal, which means the lower court decisions stand.

Next, in the case of Winkelman v. Parma City School District, the Court refused to hear an appeal of parents who were seek tuition reimbursement and raised issues of whether or not a court may look beyond the four corners of an IEP to determine if it is appropriate. The trial court looked beyond the IEP in its decision and denied tuition reimbursement, with the decision being upheld by the Sixth Circuit Court of Appeals. This is the second time the Winkelman's attempted to go to the Supreme Court, the last time they were successful and the Court found that they could proceed without counsel and represent the student in Court. This subsequent appeal was on the merits of the case.

STRIP SEARCHES IN SCHOOL FOUND TO BE UNCONSTITUTIONAL, MAYBE.

Timothy Gilsbach — Fri, 26 Jun 2009 13:26:06 -0500

In Safford Unified School District #1 v. Redding the Supreme Court was faced with a student who was suspected of having forbidden prescription and over the counter medications with her in the school setting. School officials searched her bag and outer clothing and asked her to remover her clothing down to her bra and underwear. At this point, the school officials asked her move her undergarments to expose her breasts and pelvic area, although she was not asked to remove the same. The Court was asked to determine if such a search was constitutional and the Court found it was not.

The Court begins by acknowledging that the standard required of school official who conduct searches is one of reasonableness that is short of probable cause. The Court found that the evidence established that the search of the student’s backpack and outer clothing was reasonable, but once the search moved past that point it no longer was. The Court was concerned with the fact that given the low level of threat even if the student had these medications and lack of evidence to show it was likely she did, the search was unreasonable and, thus, unconstitutional. While not setting a standard, the Court seems to leave open, at least in part, the option of a strip search under different circumstances involving a different level of evidence and a different threat to the school environment. It appears the Courts will have to iron out when, if ever, such a search might be reasonable.

Finally, the Court notes that several Courts have considered this issue and come to different conclusions. Thus, given the lack of clarity as to the protections afforded to the student, the Court finds that school officials may have reasonably believed they were acting in a manner consistent with protections of the Constitution and, thus, are entitled to qualified immunity for their actions. Thus, school officials who have conducted these types of searches in the past likely will have some level of immunity, but those who engaged in them in the future, given the Court’s guidance, will not.

The Court ends its term on Monday and there may be more news to come.