Midwest Education Law

The U.S. Department of Education recently provided two resources designed to aid schools in interpreting the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.  The first resource is a Dear Colleague letter which highlights changes to the ADA adopted in 2008 (made effective in January 2009).  The second resource is a Questions and Answers document which provides basic information about OCR and application of the statutory amendments to students, or other individuals, who may be protected by the ADA and/or Section 504.  While neither resource can provide answers to detailed scenarios, both documents provide a good refresher on these important disability discrimination laws.  The documents also include important policy-related reminders and links to other helpful authorities. 

The Missouri General Assembly is currently considering two bills that would amend the Missouri Human Rights Act ("MHRA").  Among other things, both bills would change the legal standard applied in discrimination claims to mirror the standard applicable to similar claims under federal law.  Specifically, under the present MHRA, claimaints must demonstrate that discriminatory animus was a "contributing factor" to an adverse action by their employer.  However, SB 592 and HB 1219 would require claimaints to demonstrate that unlawful animus was a "motivating factor" for the employer's action.  Although these bills are highly controversial, proponents and opponents agree that the differing standards are important in claims involving workplace discrimination.  Also important are the caps on monetary damages contained in both bills. 

The legislature passed a similar measure last year and Governor Nixon vetoed it on May 2, 2011.  We will monitor closely all developments regarding this important debate and provide updates as appropriate. 

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.   

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. 

As readers know, Missouri's so-called "Facebook Law" has received national attention.  Although passed unanimously by the Missouri General Assembly, the core provisions subsequently generated much disagreement and a constitutional challenge.  The court challenge to SB54 also made national news and a legal ruling today will no doubt also recieve attention.  In short, the judge found unconstitutional the portion of SB54 precluding teachers from using non-work related internet sites that allow "exclusive access" to current and former students.  The ruling is preliminary and may be rendered moot by further legislative action.  Specifically, legislators had already pledged to clarify and correct the challenged provision and we will monitor developments.  Importantly, all other provisions of SB54 remain in effect and should be followed unless and until amended by the General Assembly. 

In a recent "Dear Colleague" letter, OCR reminds school districts of familiar obligations not to discriminate against students in enrollment practices.  The reminder is targeted at practices which "chill or discourage" the enrollment of students based on actual or perceived citizenship or immigration status.  The letter then provides examples of appropriate and inappropriate information to consider when enrolling a student.  A footnote also highlights special treatment for homeless students. 

While the letter is unremarkable in terms of new developments, it contains pertinent information about student residency issues.  These can by thorny questions and OCR's guidance may prove helpful before the 2011-12 school year. 

A federal court in New York recently concluded that the IDEA creates an affirmative duty to remedy disability-related bullying or harassment.  Failure to do so may constitute a denial of FAPE in violation of the IDEA.  The case involved a female student who was allegedly bullied and harassed because of her disability.  The parents removed her from the public school, placed her in private school and sought reimbursement.  The request was denied and the family sought judicial review after exhausting administrative remedies.  The federal court allowed the parents' claim to move forward, findings as follows:

When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action. It must investigate if harassment is reported to have occurred. If harassment is found to have occurred, the school must take appropriate steps to prevent it in the future. These duties of a school exist even if the misconduct is covered by its anti-bullying policy, and regardless of whether the student has complained, asked the school to take action, or identified the harassment as a form of discrimination.

This case is another reminder that allegations of bullying or peer harassment must be taken very seriously.  Courts and administrative agencies look unfavorably on school officials who appear to dismiss reported misconduct, especially when tied to a student's disability. 

Late last week, the U.S. Department of Education proposed amendments to regulations implementing FERPA.  The changes are designed to allow use of data gathered in statewide longitudinal data systems (SLDS).  Specifically, the proposed amendments would allow authorized representatives of state governments to access the data for purposes of evaluating academic programs, while still protecting the privacy of education records.  Details of the proposed language and the anticipated impacts can be found here. 

Comments on the proposal must be provided by May 23, 2011.  Instructions for submitting a comment are set forth in the Federal Register at the link above. 

On May 21, 2008, President George W. Bush signed into law the Genetic Information Nondiscrimination Act ("GINA").  In adopting GINA, Congress noted the achievements in genetic research and the potential benefits to medicine.  However, Congress was also mindful about potential misuses of genetic information in health insurance and employment.  GINA addresses these concerns by prohibiting discrimination based on genetic information and restricting aquisition and disclosure of such information. 

GINA required the EEOC to promulgate implementing regulations.  The EEOC issued proposed regulations on March 2, 2009 and sought comment from the public.  Comments were also solicited at a public hearing attended by interested stakeholders.  The EEOC has now issued their final regulations, which become effective January 10, 2011.  Like many administrative regulations, these regulations track the statute closely and provide clarification of unique terms and provisions.  The regulations provide additional background about the statute and are designed to capture the intent of Congress.  The EEOC's press release also provides insight into the the new regulations which may prove helpful to school administrators. 

On November 9, the U.S. Department of Education released its National Education Technology Plan.  The full title is "Transforming American Education: Learning Powered by Technology."  A copy of the Plan, together with related information, is available here.  The Plan is the result of 18 months of work by educators, government officials, members of the public and representatives from industry groups.  They were charged with the task of drafting a vision for transforming the use of technology in classrooms across the country.  To that end, the Plan lays out goals in the areas of learning, asessment, teaching, infrastructure and productivity.  The aim is to achieve the goals by 2015.  It is also important to note that the Plan, while focused on new technologies, recognizes the primary importance of good and effective teachers. 

The Platte County Circuit Court recently entered an Order rejecting a challenge to a cooperative agreement between a school district and the local sewer district. Cooperative agreements, which are expressly allowed by Missouri law, enable political subdivisions to work together and save resources on a wide variety of projects. The agreement at issue was designed to provide sewer services at an elementary school. It was challenged by local residents on a variety of legal grounds and Spencer Fane represented the school district. After hearing factual evidence and legal argument, the Circuit Court entered an Order affirming the validity of the agreement and rejecting the challengers' claims.

If carefully drafted, a cooperative agreement can be a powerful tool for finding cost-effective solutions to potentially expensive projects. This recent opinion is a reminder that cooperation between school districts and other state agencies is very important, especially in difficult economic times.

Congratulations to Dr. Dennis Fisher, Superintendent of the Park Hill School District, for being named Missouri's 2010 Superintendent of the Year.  Dr. Fisher was presented with the honor on October 23 by his colleagues in the Missouri Association of School Administrators.  This is a high honor for the entire leadership team of the Park Hill School District. 

If your encounters with the Department of Education's Office for Civil Rights ("OCR") have been more frequent lately, you're not alone.  After reviewing data obtained under FOIA, the Associated Press reports that OCR received nearly 7,000 complaints this fiscal year, representing an 11% increase over last year.  Common allegations include discipline disparities based on race (particularly in connection with zero-tolerance policies), discrimination against students with disabilities, concerns regarding food allergies and intolerances and mistreatment of English language learners. 

In the article, OCR acknowledges that most school officials do not intentionally discriminate against students.  Rather, problems arise when school officials misunderstand their responsibilities under the non-discrimination statutes enforced by OCR.  This is a timely reminder that unintentional disparities are also unlawful and great care should be taken to assure complete compliance with all non-discrimination policies and statutes.  Administrators and teachers alike should always be familiar with their obligations under these authorities and conscious of good faith behavior which may inadvertently lead to discriminatory results. 

Unfortunately, domestic and/or custody disputes arising off-campus frequently create difficulties on-campus.  This is old news to experienced educators.  There are many examples of the problem, but disputes commonly arise over a non-custodial parent's request to visit a child at school.  School officials work overtime to read and abide by court orders, follow appropriate parental instructions and otherwise navigate thorny questions without clear legal guidance.  Many school districts have policies providing helpful direction, but even well-drafted policies cannot anticipate and address every possible scenario in this context. 

Although uncomfortable for everyone involved, these disputes rarely lead to litigation.  Parents often threaten to "lawyer-up," but most ultimately find other solutions.  However, a non-custodial parent in Iowa followed-up on her threat and sued a school district when she was denied daytime visitation with her child.  She filed numerous claims against the school in federal court, most alleging constitutional violations.  In a lengthy opinion, the court rejected each of the parent's claims and dismissed the lawsuit.  Among other helpful conclusions, the court noted that there is no constitutional right for a parent (custodial or otherwise) to visit a child during school hours. 

Every case is obviously different and Iowa decisions are not binding in our region, but the court's analysis will prove helpful to schools making good faith efforts to balance the competing interests of disputing parents. 

A recent post on this blog highlighted the vulnerability of certain drug testing policies when reviewed under state law.  California has now provided another example of a policy failing to pass muster under requirements of a state constitution.  Specifically, the California Court of Appeals unanimously upheld a lower court's order prohibiting enforcement of a student drug testing policy.  Click here to review the opinion.  The policy purported to cover any student participating in so-called "competitive representational activities."  Those activities included traditional extracurricular athletics, as well as certain mandated curricular or co-curricular activities.  The court questioned the effectiveness of testing in this context and also questioned the need to target these particular students for testing.  Balancing these concerns against the students' privacy interests, the court found that the students were likely to prevail on their claims against the school district. 

Although this policy can be distinguished from others based on its broad scope, the case provides a good reminder that drug testing is a sensitive area for school officials and courts.  The need for testing, the language of testing policies and the unique provisions of state law are important factors in determining the propriety of a school district's effort to curb drug use among students. 

The U.S. Department of Education recently organized and hosted the Federal Partners in Bullying Prevention Summit.  The meeting brought together educators, leaders from federal agencies and other associations determined to reduce bullying in our nation's schools.  One result of the summit was creation of a website designed to centralize governmental resources on bullying.  It contains information about bullying research and strategies for addressing the problem from various perspectives.  It also contains articles, suggestions, videos and other information to help schools assure that students are and feel safe.  This is especially important as many students report feeling intimidated at school and as technology continues providing additional methods of delivering intimidating messages. 

The problem of drugs in schools is not a new one and the remedy is not obvious.  School leaders, political bodies and private citizens have debated, implemented and litigated proposed solutions for years.  One strategy which continues to see support is drug testing students who engage in extracurricular activities.  At least one district in Missouri recently adopted such a policy.  Finding sufficient protections in place, the U.S. Supreme Court has at least twice rejected challenges that student drug testing programs violate federal law.  The result is not always the same, however, when challenges are lodged under state law.  See, e.g., "Which Washington: Constitutions in Conflict," 19 Marq. Sports L. Rev. 231 (2009) (Jonathan Duncan and Kristina Giddings). 

A common question running through the drug test debate is whether testing programs are effective in curbing use or abuse by students.  A recent study released by the U.S. Department of Education provides current and relatively comprehensive information about the effectiveness of student drug testing policies.  It may serve as a valuable resource to school officials who are exploring options for removing drugs from our public schools. 

This year, like last year, the Missouri General Assembly bundled many legislative changes impacting education into a single bill.  That bill (HB 1543) was adopted by the legislature and approved by the governor.  Most of the provisions become effective on August 28, 2010.  The statute addresses a variety of important subjects including bullying, corporal punishment, dress codes, immunity from liability, administration of medication and conditions of suspension.  Click here for a summary of these and other provisions of the statute.  Familiarity with these provisions is important as many of them represent material departures from prior requirements. 

In a lengthy decision released today, a federal court in Connecticut ruled that Quinnipiac University violated Title IX by failing to provide equal partication opportunities to female student-athletes.  The court gave the University flexibility to determine how it would bring itself into compliance with Title IX, but ordered submission of a compliance plan within 60 days.  The court also ordered continuation of the women's volleyball program through the 2010-2011 season.   

Key to the court's analysis was its conclusion that cheerleading is not a competitive sport.  Accordingly, cheerleaders are not included when calculating athletic participation opportunites for females.  The court's treatment of cheerleading is consistent with the position taken by the Department of Education, Office for Civil Rights.  This is an important reminder in assessing compliance with anti-discrimination laws. 

The Department of Education recently published new guidance regarding disclosure of education records during emergencies and disasters.  After providing a basic refresher on FERPA requirements, the Department answers a series of hypothetical questions in the context of natural or man-made disasters.  Three items merit attention here. 

First, the Department makes clear that the health or safety exception in FERPA "is temporally limited to the period of the emergency" and does not permit so-called blanket releases of information.  Second, disclosure decisions must be made "on a case-by-base basis, taking into account the totality of the circumstances pertaining to a threat to the health and safety of the student or others."  Third, the exception does not allow disclosure in connection with the threat of a possible or eventual emergency.  In other words, disclosure of education records in connection with emergency preparation activities is not permitted. 
 
The flexible standards acknowledge the discretion which must be afforded school administrators in an emergency.  If an administrator can articulate a rational basis for disclosing personally identifiable information in an emergency, the Department of Education will defer to the administrator. 

The many advantages and disadvantages of social networking sites and other electronic communications are now well-documented. While these technologies can be employed for great educational benefit, they can also create unintended liability for a teacher or a school district. You can read more about those issues here. There is a growing on-line resource, however, which may allow educators to communicate electronically with students while avoiding some of the pitfalls of Facebook, Twitter, MySpace and texting. The resource is not a cure-all for every electronic problem, but it may be worth reviewing to see if your district could benefit.