Midwest Education Law

The Department of Education’s Office for Civil Rights recently issued a “Dear Colleague” letter providing guidance for school districts regarding compliance with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as well as a frequently-asked-questions reference. The ADAAA is widely considered to have expanded the definition of a “disability” requiring accommodation. While the guidance does not provide new standards, OCR’s letter and FAQ are an additional reference for school officials sorting through disability accommodation issues.

The United States Supreme Court declined this week to review a pair of high-profile off-campus Internet student speech cases.  Both cases involved students who were disciplined at school for posting fake profiles on the Internet of their school principals.  The high court’s decision to decline review is a missed opportunity to clarify school districts’ ability to discipline students whose off-campus, online conduct may affect the school environment.

 

The two cases, which involved materially similar facts, drew national attention when the Third Circuit Court of Appeals issued decisions in the cases that reached opposite conclusions on the same day.  In J.S. v. Blue Mountain School District, a middle school student posted a fake MySpace profile of her principal that contained crude content and vulgar language, resulting in a 10-day suspension.  In Layshock v. Hermitage School District, a high school student was also suspended after creating a fake webpage mocking his principal.  

 

After reviewing the cases en banc—with all Third Circuit judges participating—the Court held that the discipline applied by the schools in both cases violated the students’ First Amendment right to free speech.

The National School Boards Association, through funding from the Centers for Disease Control and Prevention, produced and released a new resource regarding food allergies.  It's titled "Safe at School and Ready to Learn: a Comprehensive Policy Guide for Protecting Students with Life-Threatening Food Allergies" and you can review it here.  The guide contains recommendations for policies, best practices, medication protocols, communication channels, and prevention/evaluation strategies.  It also contains other helpful tools including a checklist, glossary and list of allergy-related resources.  As schools continue to see increased allergy activity, and related costs/exposure, this guide could be a great help to administrators and educators alike.   

The Family Compliance Policy Office of the U.S. Department of Education, together with the newly-created Privacy Technical Assistance Center, will host a webinar on January 11 to discuss new FERPA regulations.  The webinar will summarize the recent regulatory changes, then focus primarily on new requirements for data sharing.  As we've shared before, these requirements can be very technical and confusing.  Agency officials are expected to share "best practices," which may help navigate these dangerous waters.  In light of the Department's pledge to increase FERPA enforcement efforts, it's important to understand how the agency views schools' obligations under the new regulatory scheme.  More information about the webinar can be found here.   

The U.S. Department of Education will publish its new FERPA regulations today in the Federal Register.  The regulations, together with the appendix, span more than 250 pages and become effective on January 3, 2012.  The appendix, which begins on p. 238 of the regulations, contains answers and forms that provide good information about FERPA and the new regulations.  Changes announced in the regulations include, among other things, guidance on sharing student data for research purposes, increased enforcement authority and creation of the Privacy Technical Assistance Center.  The Department also drafted a helpful overview, which provides a summary of the changes and links to additional resources.  This would be the best starting point for reviewing the impact of the new regulations. 

Debate surrounding reauthorization of the ESEA continues, with a current focus on bullying prevention and protections for lesbian, gay, bisexual and transgender students.  The U.S. Senate Health, Education, Labor and Pension Committee supported a bill in October reauthorizing the ESEA.  The bill included provisions intended to address and minimize bullying in schools, but did not include the Student Non-Discrimination Act ("SNDA") or the Saft Schools Improvement Act ("SSIA"), both designed to give express protections for LGBT students.  On November 1, 2001, a group of LGBT organizations wrote a letter to the Senate committee espressing their concerns about the reauthorization bill.  Senators sponsoring the SNDA and SSIA (Sen. Al Franken and Sen. Bob Casey, respectively) say they intend to introduce their bills during debate on the Senate floor.  Several organizations are supporting separate legislation designed to protect LGBT students, while others maintain that specific decisions about bullying protection should be made at the local level.  We'll continue monitoring this debate and the potential impact on area schools and policies. 

On October 1, 2010, we reported on a non-custodial parent's lawsuit against a school district in Iowa.  Arguably trying to supplement visits allowed by a divorce decree, the mother sought access to her children during the school day.  She sued because the school denied at least some of her requests.  At that time, the federal trial court rejected the mother's constitutional challenges and ruled in favor of the school district.  

The mother subsequently appealed to the federal court that covers Missouri, among other states.  The appellate court affirmed the trial court's opinion and ruled in favor of the school.  Specifically, the court rejected the mother's argument that she has a constitutional right to "unfettered access" to her children during the school day.  Even if a parent has such right, the court ruled that the mother's rights were limited by a reasonable interpretation of the divorce decree establishing visitation arrangements.  The court also noted that disputes about visitation terms could be presented to and modified by the domestic court. 

While the case arose in the context of a custody dispute, the opinion provides helpful language about general parental demands of access.  The case also provides a good reminder about the importance of policies addressing this often emotional subject.   

According to a report in The Kansas City Star, Missouri Education Commissioner Chris Nicastro is recommending to the State Board of Education that the Kansas City, Missouri School District lose its accreditation.  A Missouri statute provides that an unaccredited school district must pay tuition and transportation costs for students within its boundaries who opt to transfer to an accredited district within the same or an adjoining county.  Last year, the Missouri Supreme Court interpreted this law to mean that the "receiving" school district does not have discretion to reject the transfer student.  (The case involved students from the St. Louis School District, which previously lost its accreditation.) 

This is not, however, the end of the story.  The case was sent back to a lower court for trial, where the affected school districts have mounted new challenges to the law.  They have argued that the law violates the Hancock Amendment's prohibition against unfunded mandates, is impossible to comply with because of physical space limitations, and that it may result in violations of IDEA.  That trial is now scheduled for January 23, 2012.

If the State Board in fact strips KCMSD of its accreditation, and you work in a school district that receives a transfer request from a KCMSD student, consult your legal counsel as soon as possible.  We can also work with you to develop procedures for responding to such requests, or to position your district to defend against litigation stemming from transfer requests.

Missouri lawmakers yesterday began the process of revising the controversial "Facebook law" that a judge recently enjoined from going into effect.  Acting during a special session Wednesday, the Senate Education Committee unanimously passed a revised version of SB54.  The revised bill eliminates the contentious provision regarding communications between teachers and students on social networking websites like Facebook.  In its place, the new bill provides that school districts must have a social media policy in place by March 1, 2012, including "the use of electronic media and other mechanisms to prevent improper communications between staff members and students." 

Continue to check this blog to follow the progress of the revised bill.

The U.S. Department of Education recently released a report entitled "Creating Equal Opportunities for Children and Youth with Disabilities to Participate in Physical Education and Extracurricular Athletics."  You can review the report here.  The report outlines common barriers that restrict students' access to physical education and extracurricular athletics.  It also contains information about resources and other data to improve participation rates among students with disabilities.  The report (including exhibits) is only 20 pages in length and may provide assistance to school officials wrestling with competing interests in this area.