Midwest Education Law

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.

Last year, OCR issued a "Dear Colleague" letter to college and university presidents expressing concern over the increasing use of e-readers such as the Kindle and Nook to replace or supplement traditional textbooks.  According to OCR, the use of such devices violated the rights of sight-impaired students, because the devices lacked a text-to-speech function.  ("Text-to-speech" means that content on the screen will be read aloud.)

OCR recently issued a second "Dear Colleague" letter clarifying that its guidance to universities applies with equal force to elementary and secondary schools.  At the same time, OCR released answers to Frequently Asked Questions regarding its restrictions on the use of e-readers.  According to OCR, schools that provide content on e-readers must afford blind students "the opportunity to acquire the same information, engage in the same interactions, and enjoy the same services as sighted students."  Likewise, students with other disabilities must be accommodated if the use of e-readers prevents them from accessing content in an "equally effective and equally integrated manner."

One possible solution proposed by OCR is to make tablet computers (such as an iPad) available to sight-impaired students, because they generally have a text-to-speech function.  While tablets are more expensive than dedicated e-readers, their additional cost may be offset by the savings realized by replacing hardbound books with their electronic versions.  Nonetheless, OCR's guidance should be studied carefully by schools considering a shift toward electronic textbooks.

Since a 2007 decision by the Missouri Supreme Court, Missouri school districts have been required to engage in collective bargaining with teachers' unions.  That decision, however, left unsettled how far school districts were required to go in reaching an agreement.  Language in the opinion, to the effect that school districts were free to reject any proposals made by teachers, suggested that school districts could adopt a "take it or leave it" approach.

Last month, though, the Missouri Court of Appeals issued a decision concluding that public school districts (actually a charter school in this case) must do more than merely show up for negotiations, and that they must instead bargain in "good faith."  As anyone who has followed the NFL lockout can see, disputes over whether an employer has bargained in "good faith" can lead to litigation.

Perhaps recognizing that its decision plows new ground in the field of Missouri school district/teacher negotiations, the Court of Appeals transferred the case to the Missouri Supreme Court for a final decision.  We expect the case will be reargued in the Supreme Court, and that a decision will not be rendered until later in the year.  But this is certainly a case to watch over the next few months.

Here's an interesting twist on a frequently-litigated issue in special education cases.

Parents of a student in California filed a due process complaint, alleging in part that the school violated their rights under IDEA by not giving the parents a draft of the IEP goals and objectives before the IEP meeting.  The hearing officer and the courts rejected this argument, given evidence that the parents were able to contribute to the discussion and modification of the goals at the IEP meeting.

We occasionally see claims that schools violated IDEA's prohibition on "predetermination" by coming to the meeting with a draft of the IEP.  These claims almost always fail, because thearing officers expectation that the school members of the IEP team should have given the IEP some forethought before the IEP meeting, given their more intimate knowledge of the student's day-to-day performance.

This case goes to show that when it comes to special education claims, schools are often faced with no-win arguments.  Still, we believe it is generally a good idea, when possible, to formulate a draft of most of the IEP beforehand, with the possible exception of the placement recommendation, and to share the draft with the parents at or before the meeting.  This contributes to a more efficient, focused meeting. 

A Pennsylvania middle school's effort to ban "I Heart Boobies" bracelets failed, when a federal court there ruled that the ban violated two female students' free speech rights.  The court's decision explains the history behind the bracelets, and the legitimate public awareness campaign that motivated the marketing of the bracelets.  The court further concluded that the bracelets were not lewd speech, given the context of the bracelets' purpose.  Finally, the court discounted the school's contention that the bracelets had caused substantial disruption of the school, despite evidence that (as one might expect from middle school students) the bracelets had led to several off-color comments by other students.



 

The EPA is currently conducting a symposium on Indoor Air Quality (IAQ) in the nation's schools.  Here is an excerpt from the EPA's news release:

“Protecting children’s health is a top priority for EPA,” said Gina McCarthy, assistant administrator for EPA’s Office of Air and Radiation. “School kids, parents and teachers face challenges every day, so EPA designed the Tools for Schools Program to make sure that poor indoor air quality isn’t one of them.”

Poor indoor air quality in schools can impact the comfort and health of students and staff, which, in turn, can affect concentration, attendance, and student performance. Eight school districts across the country are being recognized at the IAQ Tools for Schools National Symposium for leading the way to improving conditions at their schools and taking action to prevent future IAQ health risks. The symposium focuses on a wide range of environmental risks, including radon, mold, pest management, and asthma management.

Here are a few tips schools can take to start improving their indoor air quality:

- Get an IAQ Tools for Schools Action Kit online
- Review the IAQ Coordinator’s Guide provided in the IAQ Tools for Schools Action Kit
- Develop an IAQ team and review current IAQ practices in your school
- Develop an IAQ program and encourage good IAQ practices across the school and community
- Test your school for radon

The IAQ Tools for Schools Program, launched in 1995, assists school districts in identifying the actions they can take to successfully plan and implement an effective IAQ management program.

More information on IAQ Tools for Schools:  http://www.epa.gov/iaq/schools/index.html

Senior school district administrators often have clauses in their employment contracts under which the school district pays both their individual health insurance premiums, and the additional premium for spouse and family coverage.  This is generally not paid for lower-ranking employees of the district.

The 2010 health reform law includes a nondiscrimination rule that raised questions about the use of such clauses.  Under the rule, insured group health plans (other than certain "grandfathered" plans) are prohibited from discrimination in favor of highly compensated participants in terms of either (a) eligibility to participate, or (b) the benefits provided under the plan.  The employer/sponsor of plan violating this law is subject to an excise tax of $100 per day per non-highly compensated employee who is discriminated against.  For larger school districts with hundreds of employees...well, you can do the math, and it isn't pretty. 

We had received several inquiries about whether the new law would trigger penalties against school districts who are paying family premiums for senior administrators only.  Apparently, the IRS received similar questions, because it issued last week a notice that insured plans will not be subject to the penalty until after the IRS issues further guidance on application of the nondiscrimination rule.  We can't say for certain when that guidance will be issued, but the deadline for submitting comments to the IRS is March 11, 2011, so further word probably won't be forthcoming until the summer, at least.

In the meantime, new contracts and extensions of existing contracts should account for the possibility that this benefit could become impermissible. 

In early 2011, the U.S. Environmental Protection Agency (EPA) is expected to finalize its "Area Source" boiler rule which will require first-time controls on air emissions from existing and new institutional boilers at schools, colleges, universities, and other institutions of higher education, as well as other commercial and institutional boilers. 

EPA estimates there are 183,000 existing boilers at 92,000 separate facilities that will be covered by the Area Source final rule.  "Institutional boilers" are combustion units that burn coal, oil, biomass, or natural gas as a means to generate steam or hot water for heat.   

If your school has a boiler, now is the time to begin considering how these new rules will impact operations.  For more information on any of these rules, or other recent environmental developments, please contact Andrew Brought at abrought@spencerfane.com, any other member of the Environmental Law Practice Group or Education Law Group, or your regular Spencer Fane contacts, at 1-800-526-6529.  (Thanks to Drew for alerting us to this development, and authoring this post!)

The law firm Spencer Fane Britt & Browne LLP is pleased to announce the addition of new associate Stephanie Lovett-Bowman. She will practice with Spencer Fane's Education Law group in the Kansas City office. “The addition of Ms. Lovett-Bowman and her immediate contributions will further enhance client service and expand our Education Practice,” said Joe Hatley, Partner and Group Leader of Spencer Fane’s Education Law Practice.

Stephanie Lovett-Bowman received her J.D. from University of Kansas School of Law, where she was elected to The Order of the Coif and served as Editor-in-Chief of Kansas Journal of Law & Public Policy. She also received the Faculty Award for Outstanding Scholastic Achievement and took second place at the Moot Court National Criminal Procedure Competition in San Diego, California. Stephanie has degrees in journalism and political science from the University of  Kansas, where she graduated with highest distinction. Prior to joining Spencer Fane, she served as an intern under the Honorable David Waxse, United States District Court. She is admitted to the Bar in Missouri.

Spencer Fane Britt & Browne's Education and School Law group boasts some of the most influential education attorneys in the Midwest, and has extensive experience representing public school districts, private or specialized schools and other education-related organizations and associations. Our attorneys help schools successfully resolve the wide variety of issues that confront them, including teacher tenure and termination, student discipline, students' rights, special education, athletics eligibility, contract negotiation, policy development, administrative compliance, complaint investigations and personnel matters. We also provide training and in-service assistance to paraprofessionals, teachers and administrators.

A school district in Texas was recently ordered to pay parents for the cost of an Independent Education Evaluation, after the district was unable to prove that its own evaluation was appropriate.  The reason?  The school had not retained the test protocols or the student's responses to the questions on the various assessments.  According to the hearing officer, this violated IDEA in two ways.  First, it violated the section of IDEA requiring that information obtained from all evaluation sources be documented.  Second, it violated the rights of the parents to participate in the process of developing an IEP.

Schools should probably retain test protocols and student responses until it is clear that the evaluation in question is no longer relevant, e.g., when the student is re-evaluated.  This does not necessarily mean that parents may see the test protocols, since there are often copyright or ethical restrictions prohibiting such documents from being reviewed by persons who are not qualified to interpret them.  (In the Texas case, the parents had retained an expert who said her ability to critique the school's evaluation was hampered by the lack of protocols.)  But they should be available in the event they are needed to show that a school's evaluation is accurate.

Lesson from Texas case: Retain test protocols from evaluators. Neglecting to do so can interfere with a parent’s participation in developing an IEP. Take these steps to obtain test protocols and underscore their importance. (Aug. 31) NEW!

Key points:

· Retain documentation of students’ evaluation responses, scores
· Guard against evaluators’ destroying materials
· Explain usefulness of test protocols to IEP team

Lesson from Texas case: Retain test protocols from evaluators.

Failing to retain documentation of a student’s evaluation responses and scores violates the IDEA and can prove costly, as one Texas district recently learned.

In McKinney Independent School District, 54 IDELR 303 (SEA TX 2010), the district had to pay $6,780 for IEEs obtained by the parents of a student with autism, a speech impairment and undisclosed disabilities. That’s because the district neglected to obtain test booklets with the student’s responses from its evaluator, and the evaluator destroyed them.

The IDEA requires that information obtained from all evaluation sources be documented, the IHO noted. What’s more, the failure to retain these documents interfered with the parents’ participation in developing a program that matched the student’s needs.

“Right now, I wouldn’t be surprised if test protocols are not present at the majority of IEP meetings,” says Joe Hatley, a school attorney with Spencer Fane Britt & Browne LLP in Missouri. He adds, “This decision may lead parents and parent attorneys to make the issue of having evaluation documentation at IEP meetings a bigger deal in the future.”

Follow these steps to obtain test protocols and underscore their importance:

Discuss needed documentation with outside evaluators. Problems can occur when you contract with an outside evaluator to coordinate student assessments, as the district did in McKinney, says school attorney Karen VanDijk of California-based Best Best & Krieger LLP.

“Most district evaluators always file test protocols and know not to destroy them. But outside evaluators might not know about the requirement to retain records,” she says. The best way to inform them -- and to guard against their destroying test protocols -- is to build the requirement into a contract, she says.

“Write in the contract that the evaluator must give you the test protocols at the time he gives you the assessment. Make that a condition of being paid,” she says. This way, the evaluator knows from the outset what to provide the district, and you won’t have to keep sending reminders, VanDijk says.

Explain need for test protocols with team members. IEP teams may not ask for test protocols unless they have questions about the evaluation scores, VanDijk says. Other teams might worry that parents will examine the test protocols for errors.

“But they are entitled to do that if they want,” VanDijk says. “And if you don’t let them, you risk the parent claiming that you interfered with her participation.”

For example, suppose parents say their child struggles in math and writing, but your evaluator finds that the child functions at grade level. “That’s just the conclusion,” says Deborah Mattison, a parent attorney with Wiggins, Childs, Quinn & Pantazis LLC in Alabama. You have to let the parents look at the protocols to determine how the evaluator reached that decision, she says.

Also, VanDijk says, “it will be tough to defend your evaluation and findings if you don’t have anything that supports how you reached your conclusion.”

Consider other uses of test materials. For example, Hatley says, if a student is “right on the border” between being eligible or ineligible for IDEA services, looking at the student’s evaluation responses can sometimes help teams understand why an evaluator made a certain recommendation. Test materials also can help you develop an IEP for a student who is new to the district, Hatley says. “IEP teams don’t have a history of involvement with that child, so evaluation materials can take on a greater significance in these situations,” he says. Team members may want to look at the student’s responses -- not just the scores and recommendations -- to really get an idea of who that student is and what he needs, he says.


Heidi Sfiligoj covers IEP teams and other special education issues for LRP Publications.

August 31, 2010

Copyright 2010© LRP Publications

There was a lot of media hoopla about last month's Supreme Court decision involving the display of crosses in the Mojave Desert.  Contrary to those reports though, the decision does not open the door to the wholesale erection of religious symbols on government property. 

The case turned on the fact that by the time it reached the Supreme Court, the federal government no longer owned the land where the crosses had been placed.  After a lower court had ordered the government to remove the crosses, Congress passed a special law requiring the government to swap that property, giving it to the VFW, which had originally erected the crosses in 1934 as a World War I monument.  In exchange, the federal government was given some nearby land donated by a private citizen. 

The Supreme Court ruled that since the property was no longer owned by the government, there was no way to conclude that the crosses were "government speech," nor an endorsement by the government of a particular religion.

This decision does not, therefore, really change the way school districts must analyze efforts to place religious symbols on school grounds.  It is still something schools should shy away from, and this case is a lesson that high profile, contentious policies can't be based on how the media or pundits portray the law.

The PSRS/PEERS Board of Trustees changes to regulations which define termination, clarify the limits of working after retirement and require employers to maintain a log of hours and earnings for future retirees. The changes are effective for anyone retiring on or after July 1, 2010. It will be important to review these regulatory changes which mark a departure from past practices.

The New York Times today that OCR plans to open up compliance reviews of 32 school districts. While it is not surprising that the Obama administration intends to be more vigorous in the enforcement of civil rights laws, the approach that OCR plans to take is a bit unprecedented. Instead of just confirming that a school district has policies requiring, for example, equal opportunities for women in athletics, OCR plans to dig deeper to see if the policies actually have resulted in the exercise of those opportunities.