Education Law

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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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?

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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?

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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

tgilsbach@foxrothschild.com (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.

tgilsbach@foxrothschild.com (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.

CHANGES IN THE APPLICATION OF ADEA HAS IMPLICATIONS FOR SCHOOL DISTRICTS, BUT THOSE CHANGES MIGHT NOT LAST LONG

tgilsbach@foxrothschild.com (Timothy Gilsbach) — Fri, 26 Jun 2009 13:20:47 -0500

Next, in matter not directly looking at schools, the Court has changed the analysis in age discrimination cases under the ADEA in Gross v. FBL Financial Services, Inc. Prior to Gross, as with other discrimination claims, claims under the ADEA were sometimes approached with a burden shifting analysis. Under this approach once an employee who was subject to an adverse employment action taken established that age was at least part of the reason for the decision, the burden then shifted to the employer to show that the same decision would have been made irrespective of the employee’s age. In Gross the Court rejected that notion and found that the burden is always on the employer to establish that the adverse action was taken against them on the basis of age.

This decision will have an effect on school districts in that in defending against age discrimination cases, the burden will always be on the employee. It is not clear how long this decision will remain in effect as it is possible that Congress may step in and overrule the decision by amending the ADEA, as was done with the Ledbetter case in the area of equal pay.

MUCH ADO ABOUT NOTHING - FOREST GROVE SCHOOL DISTRICT V. T.S. DOES NOT CHANGE THE ANALYSIS ON TUITION REIMBURSEMENT

tgilsbach@foxrothschild.com (Timothy Gilsbach) — Tue, 23 Jun 2009 15:00:05 -0500

The Supreme Court has issued its much anticipated decision in the Forest Grove matter ruling on the ability of parents of a student who has not been qualified for special education to seek tuition reimbursement under the IDEA. While there have been predictions of doom and gloom were the Court to reach the conclusion it did, that parents in this circumstance may seek reimbursement, a review of the analysis and facts of Forest Grove reveal that in the end the analysis of Burlington and Carter remain intact.

In Forest Grove, the student had been in the District for eleven and a half year with recorded history of trouble maintaining attention in class and completing assignments, which apparently got progressively worse. The parents requested that the District evaluate the student for special education needs, which it did and the District found that the student was not eligible. It is important to note that the evaluation was found to be legally inadequate. Shortly thereafter, the parents removed the student from the District and placed him in a private placement and then sought tuition reimbursement from the District.

The Forest Grove Court starts with the same analysis that has been used in tuition reimbursement for years: First, did the District fail to offer a FAPE? Second, is the private placement appropriate for the student? Finally, does a balancing of the equities weigh in favor of awarding reimbursement? Those familiar with these types of case should recognize the analysis, as it remains unchanged.

In looking at the first issue, the Court held that the failure to properly identify a student in need of special education is by definition a denial of a FAPE. The Court explains, “when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Accordingly, so long as districts properly evaluate and identify students as well as offer appropriate programming, there is no increase in the likelihood that they will be liable for tuition reimbursement.

In looking at the last factor, the Court notes that the equities must also be considered. Included in this is the notice of the placement given by the parents to the District and the opportunity of the District to conduct an evaluation. These factors may be considered and, when appropriate, would justify a denial of tuition reimbursement.

The real lesson of the Forest Grove case is that districts continue to have a child find obligations and districts that meet that obligation have nothing to fear from Forest Grove. On the other hand, for district that have some problems with child find, Forest Grove should serve as a wake up call to show that student who are not properly identified have at their disposal all of the provisions of IDEA, including claims for tuition reimbursement.

Right to Know Requests and the Disappearing Revenue Stream

aberman@foxrothschild.com (Kyle Berman) — Tue, 23 Jun 2009 11:33:51 -0500

A Delaware County judge over-rules the Office of Open Records. Signature Solutions v. Aston Township, DCCCP No. 4852-09.

For years school districts and other taxing authorities have charged title companies and closing companies a fee to obtain a certification of the tax imposed and owed on a property. These fees varied, but generally did not exceed $50. This was a way of raising money without raising taxes.

On January 1, 2009, when the new Right to Know Law (“RTKL”) went into effect, companies involved in real estate closings and re-financings began submitting RTKL requests instead of requests for tax certifications. Charges for RTKL requests are capped at $0.25/page (with, up to an additional dollar for certification). By March 2009, only 2 ½ months after the RTKL’s effective date, at least one school district reported it had gone from collecting $25,000 in that same 2 ½ month period a year earlier to nearly $0 in 2009. Multiplied out, this would cost that particular school district over $100,000 each year in lost revenue. In a year where school district budgets are tight, and the boards are limited in the amount they are permitted to tax, this unexpected loss of revenue was especially disheartening.

Attempts to refuse the requests claiming they were not covered by the RTKL were overruled by the Office of Open Records (“OOR”), the state-wide agency charged with implementing that law.

Recently, however, a judge in Delaware County, Judge Joseph P. Cronin, Jr., focused on an explicit limitation built-into the RTKL to decide that the OOR was wrong.

Signature Solutions, the primary company that has been making these RTKL requests, made a request of Aston Township for “printouts of the current year tax information (including INTERIM tax bills), as well as any other charges for lienable items against the real estate that [the] tax entity collects,” and also asking for “the Homestead Rebate Information where applicable.” Aston Township claimed that it would have to create a record or compile information from various sources in order to comply. On appeal, the OOR rejected Aston Township’s assertions.

When the matter went before Judge Cronin, he noted that although there were pieces of information on various computer screens that were likely public information, the only way to give all the tax information requested was to compile it. He pointed out that the RTKL explicitly states that an agency has no duty to make such a compilation. For that reason, he found that the OOR had made an error of law and reversed the OOR’s findings.

While this could be a very important decision with wide implications, it is important to note a few things. First, this was a county judge's decision that is informative about how such cases will be decided within that county, but is is not a binding state-wide decision. Second, since the time Judge Cronin issued his decision in the Aston Township case, the OOR has decided 4 other matters involving Signature Solutions. Two of those recent matters were in Delaware County. In each of those cases – including the Delaware County matters – the OOR has granted access, despite Judge Cronin’s ruling.

A link to Judge Cronin's ruling, from the OOR's website, is below.
www.dced.state.pa.us/public/oor/jd/2009-0072_Court_Ruling.pdf

Study questions whether schools fail to find held-back students eligible for special education

KRomberger@foxrothschild.com (Karl Romberger) — Mon, 08 Jun 2009 11:45:24 -0500

A recent study looked at students held back a year from kindergarten to third grade and concluded the schools are not properly identifying held back students as in need of special education. Forbes on line reported on the matter ("Special Education Services Lacking for Kids Who Repeat a Grade").

The study found that 12.9 percent of the students had on IEP during the held-back year and that 18.2 percent received an IEP within five years of being held back. To me, the study seems possibly flawed. The study seems to operate with a presumption that a held-back student must be in need of special education, yet the reasons for holding back are many and varied.

Moreover, the apparent presumption goes completely against the IDEA of 2004's effort to keep students out of special education through the use of Early Intervening Services (different than Early Intervention).

But like so much about special education, statistics reveal little. These percentages not only do not tell us the reasons for holding back a particular child, the numbers say nothing of what efforts were made for each particular student. More informative might be the percentage of students evaluated for special education eligibility, the numbers involved in non-special education intervention programs, like Title I or a hybrid classroom that many schools offer for students needing more development time.

Ultimately, the real question, however, is individualized. It seems quite a leap to question compliance with child find without a study that investigates a large number of individual cases.