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. 

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. 

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.

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 September, the U.S. Department of Justice announced new regulations governing “service animals” in schools.  Those regulations become effective March 15, 2011, and require school districts to modify their policies, practices and procedures to permit the use of service animals by individuals with disabilities.

According to the new federal regulations, the definition of “service animal” is limited to dogs and miniature horses that have been individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks that the animal performs must be directly related to the handler’s disability.  Therapy dogs or emotional support animals do not qualify as “service animals."  Schools may exclude service animals that (1) are out of control or (2) are not housebroken.

For more information, click here: http://tinyurl.com/4p56xvy.

As Homecoming season continues, school districts may want to re-examine their alcohol and drug policies for sufficient clarity.  Unless they are carefully drafted, such policies may be vulnerable to challenge.  For example, an Alabama court recently found a school district’s alcohol and drug policy to be too vague to pass the court’s muster.  The Monroe County Board of Education’s policy stated that “no student shall carry, possess, or use drugs, drug paraphernalia, or alcohol” at a school function.  Pursuant to this policy, Excel High School suspended a student who came to the school’s prom last spring after having ingested alcohol.  The student did not have any alcohol on his person at the dance.

The Monroe County Board of Education disciplined the student because it interpreted its policy to include a student who has used alcohol shortly before attending school or a school-sponsored function or who is under the influence of alcohol while at school or at a school-sponsored function.  But an Alabama court disagreed.  The court concluded that the policy was unconstitutionally vague because it was unclear whether any student should have known that drinking alcohol before arriving at the prom constituted “use” of alcohol at a school function, which would trigger disciplinary measures.  The court struck down the policy and reinstated the student at his high school.