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Second Circuit rules that extended school year services must satisfy LRE requirements

T.M v. Cornwall Cent. Sch. Dist., No. 12-4301 (2d Cir. Apr. 2, 2014)

Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that the Individuals with Disabilities Education Act’s least restrictive environment (LRE) requirement applies to the extended school year (ESY) component of a special education student’s individualized education plan with the same force that it applies to the school year component of the IEP.  It concluded that a school district cannot escape its duty to educate a disabled student in an LRE simply because it does not offer mainstream classes as part of its ESY program.

The panel also concluded that the school district was not required to reimburse the parents for the full cost of providing the student’s pendency services–services provided during litigation–at a private placement.  The school district had satisfied its duties under the IDEA when it reimbursed the parents for the cost of such services during the time when the district refused to provide the services.  Thereafter, the district offered to provide the services, and when the parents rejected that offer they became responsible for the costs of the pendency services they obtained privately.  However, the district court has the discretion to order reimbursement up to the amount it would have cost the school district to provide those services.

Facts/Issues: T.M., who suffers from autism, was receiving special education services from the Cornwall Central School District (CCSD).  Because of the nature of T.M.’s disability, his IEP included an ESY component.  In two successive proposed IEPs, CCSD’s proposed ESY placement for the summer of 2010 was in a self-contained special education classroom with no non-disabled students.  The CCSD administered only two summer school programs, and neither included non-disabled students.  However, during the regular school year, T.M.’s placement had been in a mainstream classroom, where he made satisfactory progress, and the school district’s proposed placement, for the regular school year following the disputed ESY placement, was again in a regular classroom.  The parents rejected the proposed IEPs because they failed to provide T.M. with a free appropriate public education in a least restrictive environment, and requested a due process hearing.

The parents then enrolled T.M. in a regular mainstream kindergarten program at a private school for the 2010-11 school year.  CCSD reimbursed T.M.’s parents for the amount that they spent on private services for the 2010–2011 year, and thereafter offered to provide the same services in the district. However, T.M.’s parents kept him in the private school for the 2011-12 school year and thereafter during the pendency of the litigation.

The parents filed suit in federal district court following state administrative proceedings, claiming that CCSD violated its LRE obligations by not offering a mainstreamed ESY program and that CCSD was liable for pendency services. The district court granted summary judgment in CCSD’s favor on the ESY issue. It determined that the ESY program offered by the school district did not violate the IDEA’s LRE requirement.  The district court conceded that CCSD had only offered T.M. a special education summer program, not a mainstream program, but found that T.M.’s parents had “not shown that a less‐restrictive placement option was available to TM but not offered.”

However, the district court ordered the school district to reimburse the parents for pendency services.  The parents appealed the ESY/LRE ruling, and CCSD appealed the pendency services ruling.

Ruling/Rationale: The Second Circuit panel vacated the district court’s decision and remanded the case for further proceedings.

The panel applied the two-prong LRE test developed in P. ex rel. Mr.. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. 2008): “Whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and if not, then whether the school has mainstreamed the child to the maximum extent appropriate.”

According to the panel, while these two requirements are often in tension, in the present case there was no conflict between them.  Applying the first prong of the Newington test, it found that it was undisputed that T.M. was able to achieve a satisfactory education in a regular classroom.  The record clearly demonstrated that “T.M. could succeed in a normal classroom environment with the use of supplementary aids and services,” while conversely there was “nothing in the record indicat[ing] that T.M. would obtain greater educational benefits from a more restrictive setting.”  At the time the district proposed the ESY placement, T.M. had already completed a satisfactory year in a mainstream classroom, and the district was proposing the same placement for the upcoming regular school year.  Based on the first prong, the panel concluded that the mainstream classroom was the least restrictive environment appropriate for T.M.’s educational needs.  It also concluded that the district’s proposed ESY placement violated the LRE requirement because it placed “T.M. in a more restrictive educational setting for his ESY program than his disability required.”

The CCSD argued that the LRE requirement is different for ESY programs than for regular school year programs, and that a school district violates it only if a least restrictive environment is available, and it is not offered.  The CCSD maintained that because it did not have a mainstream program available, it was not required to offer a  mainstream program.  The panel rejected CCSD’s contention, finding that “[i]f a disabled child needs ESY services in order to prevent substantial regression, that child’s ESY placement is an integral part of his or her twelve‐month educational program.”  The panel stated:

Under the IDEA, a disabled student’s least restrictive environment refers to the least restrictive educational setting consistent with that student’s needs, not the least restrictive setting that the school district chooses to make available.  See Walczak v. Fla. Union Free School Dist., 142 F.3d 119, 122, (“[S]pecial education and related services must be provided in the least restrictive setting consistent with a child’s needs.”). …For ESY programs as for academic year programs, a child’s LRE is primarily defined by the nature of the child’s disabilities rather than by the placements that the school district chooses to offer.

The panel noted that the LRE statute “requires the state to ensure that ‘special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of [the] child is such that education in regular classes . . . cannot be achieved satisfactorily.’  20 U.S.C. § 1412(a)(5)(A) (emphasis added).”

The panel supported its conclusion with reference to the LRE provision in the IDEA regulations, 34 C.F.R. § 300.115(a), which requires that a school district “must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.”  That continuum must include at least “instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions.  Id. § 300.115(b).”

The panel said that a school district that did not have mainstream summer programs could meet its LRE obligation by placing the student in a private program or in a program operated by another public entity.  But “if a school district simply refuses to consider a sufficient continuum of possible ESY placements, and thereby denies a child a FAPE in her LRE, then it may be liable for reimbursement if the child’s parents find an appropriate placement.”

The CCSD maintained that it was unable to offer T.M. a mainstream ESY placement because: “(1) no public mainstream ESY programs existed in the area and (2) New York law prohibited it from offering T.M. a placement in a private mainstream ESY program.”  The panel said that even if those arguments were factual accurate, they do not alter CCSD’s “obligation under the IDEA to consider a full continuum of alternative placements and then offer T.M. the least restrictive placement from that continuum that is appropriate for his needs.  See 34 C.F.R. § 300.115(a)”

The panel noted that (1) the IDEA does not require a public school district to create any new ESY programs; (2) even if a school district fails to place a disabled student in an ESY program that satisfies LRE, the district will not be liable for tuition reimbursement unless the parents’ private placement was appropriate and the equitable considerations favor reimbursement; and (3) a school district is not required to offer every conceivable ESY environment that might suit a particular student’s LRE.

Even though CCSD violated the IDEA, it was not required to reimburse the parents unless they could prove that their alternative placement for T.M. at the private school was appropriate and that equitable considerations favor reimbursement. The panel remanded the case to the district court to address these two issues.

The panel also ruled that the district court erred by requiring the school district to continue reimbursing T.M.’s parents for pendency services that they obtained from private providers for T.M. after CCSD offered to provide those pendency services directly.  The panel agreed with CCSD that at the point the school district made its offer to provide such services itself, the parents were responsible for the costs of those services when they decided to obtain them from private vendors.  Even though CCSD was wrong not to initially provide the services, the IDEA did not bar the school district from correcting its mistake and offering to provide the required pendency services directly.

However, the panel said that “under the circumstances presented here, we believe it is within the district court’s authority to order [CCSD] to reimburse T.M.’s parents for pendency services up to the amount that it would have cost [CCSD] itself to provide the required pendency services from July 2011 through the end of the present school year….We leave it to the district court on remand to decide whether such a reimbursement award is appropriate, and if so, to calculate the amount that [CCSD] would have spent to provide T.M.’s pendency services directly from July 2011 through the end of the current school year.” The panel cited the following factors as legitimate considerations in the district court’s decision: reimbursement would be cost neutral to the district because the district was spared the expense of providing the services, the parents were lead to believe by the rulings from the IHO and district court that they would be entitled to reimbursement, and T.M. will presumably suffered some disruption when he transfers from his private program to CCSD’s program which may be worthy of compensation.

T.M v. Cornwall Cent. Sch. Dist., No. 12-4301 (2d Cir. Apr. 2, 2014)

[Editor's Note:  As the Second Circuit panel's opinion points out, the LRE requirement is not absolute and must be balanced against the educational benefits that the disabled student will receive on a case-by-case basis.  In July 2012, Legal Clips summarized a decision by a the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) in L.G. v. Fair Lawn Bd. of Educ., affirming the district court’s decision granting summary judgment in favor of the school district, holding that the district did not violate the LRE requirement of IDEA when it developed an IEP that placed a disabled student in a class with other students with the same disability and did not provide for interaction with non-disabled peers.  The Third Circuit panel agreed with the district court that the IDEA does not require inclusion of students with disabilities in interactions with non-disabled students if the child would not benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors.]

Second Circuit upholds policy prohibiting religious worship services in school facilities

The Bronx Household of Faith v. Board of Educ. of the City of New York, No. 12-2730 (2d Cir. Apr. 3, 2014)

Abstract: A U.S. Court of Appeals for the Second Circuit (NY, VT, CT) three-judge panel, in a 2-1 split, has ruled that a school board’s rule prohibiting outside groups from holding religious worship services in school facilities outside school hours does not violate the First Amendment’s Free Exercise Clause.  The panel’s majority also rejected the claim that such a prohibition violates the First Amendment’s Establishment Clause.  It declined to apply strict scrutiny analysis to the board’s regulation because the prohibition did not constitute viewpoint discrimination.

Facts/Issues: The case concerns the constitutionally of New York City Board of Education (NYCBOE) Regulation I.Q. (Reg. I.Q.).  Reg. I.Q. is a use of facilities regulation that provides: “No permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.”

This decision is the fifth time the Second Circuit has reviewed the regulation, from its first opinion in Bronx 13 Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207 (2d Cir. 1997) to Bronx Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d 30 (2d Cir. 2011) (Bronx Household IV).  Following Bronx Household IV, the case was remanded to the federal district court, where the district court granted summary judgment in favor of the Bronx Household of Faith (BHF) and issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school.

The district court determined that Reg.I.Q. violated the Free Exercise Clause and the Establishment Clause.  The court concluded that the regulation was not neutral on its face, and that it discriminated between religions fitting a formal religious worship service model and those religions whose worship practices are less structured.

This appeal followed.

Ruling/Rationale: The panel’s majority held that Regulation I.Q. is constitutional and vacated the lower court’s permanent injunction.

The majority found no violation of the Free Exercise Clause.  It said that the Free Exercise Clause does not require NYCBOE to provide BHF with a subsidized place to hold worship services.  While the Free Exercise Clause guarantees the right of individuals to worship without government interference, it “has never been understood to require government to finance a subject’s exercise of religion.”  It added that “to the extent any such suggestion has been raised in litigation, it has been rejected.”  The majority noted that case law is replete with examples of federal courts holding that a legislature’s decision not to subsidized a fundamental right does not amount to infringement of that right.  It concluded that while government may not place obstacles in the way of the free exercise of religion, it has no corresponding duty to remove those it has not created.

The majority also found the district court’s reliance on Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), as authority for subjecting Reg. I.Q. to a strict scrutiny analysis was misplaced.  It summarized Lukumi:

In Lukumi, worshipers in the Santeria religion, in which animal sacrifice plays an important part of worship services, were planning to build a house of worship in the city of Hialeah, Florida.  Members of Hialeah’s city council disapproved of Santeria’s practice of animal sacrifice and, with a goal of banning the practice, the council passed a set of ordinances prohibiting the unnecessary killing of animals in a ritual or ceremony not primarily for the purpose of food consumption. Hialeah claimed that the prohibition was motivated by secular objectives including public health and prevention of cruelty to animals.  Although the set of ordinances was designed to appear to apply even-handedly to religious and secular conduct alike, a plethora of exceptions and exclusions (exempting, for example, fishing and Kosher slaughter) made the prohibition apply almost exclusively to the Santeria ritual of animal sacrifice.  (In addition, the legislative history revealed that disapproval of animal sacrifice as a Santeria religious ritual had in fact motivated the legislators.  Because the prohibition was found to be motivated by disapproval of a religious practice and represented an attempt suppress it, and because, notwithstanding its disguise, it in fact applied almost exclusively to the Santeria ritual of animal sacrifice, the Supreme Court found that the ordinances were subject to strict scrutiny, and that they violated the plaintiffs’ free exercise rights.

The majority pointed out that while the ordinance in Lukumi was motivated by disapproval of a particular religious practice, NYCBOE harbored no such motivation when it adopted Reg. I.Q.  It stated that NYCBOE’s sole reason for excluding religious worship services from its facilities was the “concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion.”  The panel rejected the district court’s conclusion that because there is “no secular analog” to the conducting of religious worship services, NYCBOE’s decision not to subsidize BHF’s services “is necessarily a suspect discrimination against religion to be assessed under strict scrutiny.”  According to the majority, the lower court’s conclusion misapplied the Supreme Court’s reasoning in Lukumi.It pointed out that while “the ordinances in Lukumi were intended to, and did, suppress a religious ritual of a particular faith,…Reg. I.Q. does no such thing.” It stressed that the regulation represented “only a decision by the Board not to subsidize religious worship services by providing rent-free school facilities in which to conduct them.”  There is no basis for subjecting the regulation to strict scrutiny.

In further support of its conclusion, the majority cited the U.S. Supreme’s decision in Locke v Davey, 540 U.S. 712 (2004), where the Court said: “where motivated by Establishment Clause concerns, a governmental decision to exclude specified religious causes from eligibility to receive state educational subsidies is neither a violation of free exercise, nor even subject to strict scrutiny under Lukumi.”  The majority saw a clear connection to Locke: “Washington [State’s] exclusion of students of theology from eligibility for the state’s [college scholarship] subsidies was not subject to strict scrutiny under Lukumi because the exclusion was enacted in the interest of establishment concerns, we can see no reason why the rule should be any different in this case.”

The panel also disagreed with the district court’s view that Reg, I.Q. is constitutionally infirm because it discriminates against religions that hold worship services while subsidizing those that do not.  The majority pointed out that all religions are eligible for the subsidy provided that they do not conduct religious services in school facilities.  While acknowledging that the regulation has a disparate impact on a religious sect like BHF that does conduct religious services, the majority found that “disparate impact does not, in itself, constitute viewpoint discrimination.”  “[I]t is a basic tenet of First Amendment law that disparate impact does not, in itself, constitute viewpoint discrimination.”  Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 130 S.Ct. 2971, 2996 (2010).  The majority concluded: “The Board is not compelled to permit a practice it has a justifiable reason for excluding just because the exclusion may affect one religion that practices the excluded conduct while not affecting other religions that do not.”

The majority discussed the district court’s ruling that the Establishment Clause would only furnish a justification for NYCBOE’s ban on religious worship services if allowing such services in school facilities would in fact violate the Establishment Clause.  The majority found the district court’s rule unworkable because it would compel the school board to risk violating one religious clause or the other if it guessed wrong in regard to the Establishment Clause’s exact contours.  It stressed that, based on current Supreme Court and Second Circuit precedent, NYCBOE could not with any confidence predict whether it would be found to have violated the Establishment Clause if it allowed BHF and other sects to conduct subsidized worship services.  Instead, the majority determined that the Supreme Court’s reasoning in Locke dictated the opposite result.  It found that just as the state of Washington was free in the service of Establishment Clause concerns to exclude theology students from state scholarships, NYCBOE was similarly justified in declining to subsidize religious worship services.

The majority also determined that the Second Circuit had consistently rejected the district court’s rule.  It pointed out, as it had explained in Bronx Household IV, that NYCBOE had “substantial reasons for concern that hosting and subsidizing the conduct of religious worship services would create a substantial risk of liability under the Establishment Clause.”  Given that Christian religious sects dominate school facility use on Sunday, the one day school buildings are freely available to the public, it supports a reasonable concern on the part of NYCBOE that the public will come to view it as endorsing religion.

As it had in Bronx Household IV, the majority declined to reach the question whether NYCBOE would violate the Establishment Clause by allowing the subsidized use of the school facilities for religious worship services.

The majority, therefore, concluded:

In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the bona fides and the reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose other than the Board’s schools; as well as the other reasons recited in this opinion and in Bronx Household IV, we conclude that Reg. I.Q. does not violate Plaintiffs’ rights to free exercise of religion, whether or not it is subject to strict scrutiny. 

Finally, the majority rejected the district court’s ruling that Reg. I.Q. violated the Establishment Clause because “[i]t compels the Board to become excessively entangled with religion by deciding what are religious worship services.”  It pointed out that BHF was making the same argument that it had in Bronx Household IV. The majority rejected it again because whatever merit the argument had under other circumstances, it had no application in the present case because of BHF’s admission on the application that it intended to hold Christian religious worship services.  As a result, NYCBE had to do no more than to read the application; no scrutiny or detailed investigation was necessary.  The NYCBOE policy does not require the school district to make an independent determination of whether the applicant’s conduct constitutes a religious worship service.  It found, instead, that NYCBOE’s “policy is to rely on the applicant’s own characterization as to whether the applicant will conduct religious worship services.”

According to the dissent, NYCBOE’s policy, which prohibits after hours “religious worship services in public schools—limited public fora that are otherwise open to all— violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.”  It rejected the majority’s characterization of Reg. I.Q. as a content-based exclusion as opposed to a viewpoint exclusion.  The dissent argued that the regulation is viewpoint discrimination “because it disallows expression solely because the expression is from a religious viewpoint.”  It concluded that the “majority’s attempt to differentiate between the conduct of an event, here labeled ‘services,’ and the protected viewpoints expressed during the event is futile because the conduct of ‘services’ is the protected expressive activity.”

Viewing Reg. I.Q. as viewpoint discrimination, the dissent subjected the regulation to strict scrutiny.  Applying that standard, it concluded that NYCBOE’s interest in avoiding a potential Establishment Clause violation was not a compelling governmental interest that would satisfy strict scrutiny.

The dissent contended that NYCBOE’s belief that allowing religious worship services in school facilities would violate the Establishment Clause was not reasonable because U.S. Supreme Court “precedent has foreclosed the possibility that  an Establishment Clause violation would result if religious worship services were allowed in school facilities in these these circumstances.”

The Bronx Household of Faith v. Board of Educ. of the City of New York, No. 12-2730 (2d Cir. Apr. 3, 2014)

[Editor's Note: In June 2012, Legal Clips summarized the district court's decision in BHF v. NYCBOE, which issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school.  The district court rejected NYCBOE’s argument that its Facilities Use policy did not burden the First Amendment free exercise rights of outside religious groups seeking to use public schools.  Instead, it found that the policy failed the compelling interest prong of the strict scrutiny test under the Supreme Court’s Free Exercise Clause analysis. The court also found that the policy failed the second prong of the strict scrutiny test because the policy was not narrowly tailored to advance NYCBOE’s interest in avoiding an Establishment Clause violation.  In addition, it concluded that the policy violated the Establishment Clause under the Lemon test’s entanglement prong.  It stated: “Defendants are not immune from excessive entanglement once they begin to verify the qualitative nature of specific religious practices.”]

Illinois district to revise policy to permit board member access to district records and buildings

Hinsdale High School District 86 (HHSD86) is revising its policy regarding school board members’ access to HHSD86 documents, recordings, and buildings, says the Sun-Times.  The policy revision is part of a settlement agreement in a suit brought by former board member Dianne Barrett against the then board president and district superintendent.

The suit claimed the board should not be able to bar Barrett from listening to audiotapes of closed session meetings she did not attend.  She also sued for access to special education documents that the district determined were confidential.  Following the filing of the suit, the board, in March 2012, revised district policies to limit board members’ access to district records and property.  That policy, still in effect, requires that a board member demonstrate why the requested record will help him fulfill his legislative or investigatory duties as a board member.

The proposed policy states that members are entitled to “unlimited access to documents necessary and relevant to a board member’s exercise of official duties . . . including personnel and student records, with no requirement that any reason for the request be stated.”  The proposed policy also would give board members the right to listen to closed session tapes regardless if they actually attended the session.  A request to listen to a tape must be granted within five business days, unless the tape no longer exists or a longer time period is agreed upon.

The policy would prohibit abuses of such privileges, such as using district information purely for personal reasons or making “voluminous or otherwise unreasonable requests” that would burden the district’s resources.  A two-thirds vote of the school board would be necessary to rule that a request is abusive.

The revised policy also would give board members unlimited access to HHSD86 properties during school hours and other times when the buildings are normally open to the public or staff.  The member could move through the school without being accompanied by district staff.

Source: Sun-Times, 4/14/14, By Kimberly Fornek

[Editor's Note: In July 2010, Legal Clips summarized an article in the Wheaton Leader reporting on Barrett's suit against HHSD86.]

Kansas governor expected to approve bill rescinding teacher tenure

According to an Associated Press (AP) report in The Topeka Capital-Journal, Kansas Gov. Sam Brownback will approve a provision to end teacher tenure that the state legislature added to its court-mandated education funding plan. Although signing the anti-tenure proposal into law could complicate the governor’s re-election by energizing thousands of angry educators to work against him, he and his high-ranking Republican allies in the legislature already have signaled their belief the measure should become law.

Supports of the provision argue the law will make it easier to remove bad teachers from classrooms.  Brownback contends the measure is part of broader legislation increasing aid to poor school districts, and that the funding probably would have to be sacrificed to save tenure.

In addition, the Kansas Supreme Court has given the legislature a deadline of July 1 to enact a school funding scheme, which leaves little time to start over if the governor vetoes the bill because of the anti-tenure provision.  “We need to continue funding our schools,” Brownback spokeswoman Eileen Hawley said, after promising the governor will “take a very careful look” at all the bill’s provisions.

The state Supreme Court ruled in March that past, recession-driven cuts in aid to poor districts created unconstitutional funding gaps between them and wealthier ones.  Reversing those cuts will cost $129 million in the 2014-2015 school year, and the plan approved by lawmakers contains the full amount. GOP conservatives insisted on tying spending to policy changes, including the anti-tenure proposal.

Brownback praised the plan immediately after its passage, pointing to the new dollars for schools.  The Kansas National Education Association (KNEA), the state’s largest teachers’ union, on the other hand, has said the issue isn’t money.

Supporters of the bill assert that the anti-tenure provision doesn’t prevent local school districts from preserving existing due-process rights in collective bargaining agreements with teachers.  “Honestly, this is a local control bill,” said Senate Vice President Jeff King.  “The impact of this bill has been greatly overblown.”  Ending tenure was the bill supporters’ intent, and they argue it is a good thing, giving administrators more flexibility in improving their schools.

The KNEA scoffed at the suggestion that the anti-tenure provisions are milder than depicted, and spokesman Marcus Baltzell predicted the changes will promote a “culture of cover-up, harassment and bullying.”  Although there was initial debate about whether the governor could strike the anti-tenure language from the bill with a line-item veto, the growing consensus among experts is that he can not.

Thus, to kill the anti-tenure proposal, Brownback would have to veto the entire bill — killing the provisions that satisfy the Supreme Court’s mandate to provide “equity” in funding between poor and wealthier school districts. Baltzell argues for Brownback to “strike the whole thing” and bring about “a clean funding bill.”

Source: The Topeka Capital-Journal, 4/13/14, By John Hanna (AP)

[Editor's Note: In March 2014, Legal Clips summarized an article in the Wichita Eagle reporting that the Kansas Supreme Court issued a long-awaited decision finding wealth-based disparities in funding between school districts in the state to be unconstitutional, and ordered the legislature to address the matter by July 1, 2014.  The court declined to hold that the amount of state education funding violated the state constitution.

In February 2012, Legal Clips summarized an AP article in the News-Press reporting on Gov. Brownback’s proposal to post teacher evaluations on school district websites.  It received harsh criticism from both Republicans and Democrats on the Kansas House Committee on Education, who called it “a disaster” and “pretty toxic.” Rep. Jana Goodman said the proposal was a veiled attempt to place all blame for student performance on teachers.] 

Montana district agrees to redraw, condense voting precincts to settle voting rights suit by Native Americans

According to an Associated Press (AP) report in the Billings Gazette, the Wolf Point School District (WPSD) has agreed to redraw voting zones for school board elections after the American Civil Liberties Union of Montana (ACLU-MT) filed suit in federal court alleging that the current zones are drawn to favor white voters over Native American ones in violation of the Voting Rights Act. The settlement, which was approved by federal district court Judge Brian Morris, calls for reducing the total number of school board members from eight to six, and creating five districts with nearly the same number of residents.  One board member will be elected on an at-large basis.

ACLU-MT filed the suit in August 2013 after learning that members of a majority white voting area with 430 people had been electing three board members, while a predominantly Native American voting area with 4,205 people elected five members.  “The old districts clearly violated the principle of one person, one vote by creating a school board where the political power of the Native American community was diluted by the unconstitutional imbalance of the voting districts,” said Jon Ellingson, attorney for the ACLU-MT.  “Now every person’s vote will count equally.”

The Wolf Point school website says 80 percent of its students are Native Americans.

Source: Billings Gazette, 4/14/14, By AP

[Editor's Note: ACLU-MT's press release announcing settlement of the suit states: Wolf Point School District officials recently conceded, in response to an ACLU of Montana lawsuit, that its voting districts are malapportioned, and violate the “one person, one vote” requirement of the 14th Amendment of the U.S. Constitution.  According the release, the settlement calls for electing one board member from each of five voting districts to serve on the high school and elementary school boards and one member elected at-large district-wide to serve only on the high school board.  Each of the new single-member districts will have populations that vary no more than 1.54 percent.

In August 2013, Legal Clips summarized an AP article in the Great Falls Tribune reporting on the filing of ACLU-MT's suit against WPSD. The suit charged that school board voting districts are arranged to favor white voters in a predominantly Native American area. ] 

Christian student club sues Florida district seeking greater access to school resources

According to News 13, the Fellowship of Christian Athletes (FCA) has filed suit against the Lake County School District (LCSD).  FCA’s suit charges it is being discriminated against by being excluded from announcements, the yearbook, and virtually every other school publication or website.  Liberty Counsel (LC) filed the lawsuit on FCA’s behalf.  According to Steven Guschov, Engagement Director for LC, “All other clubs are allowed to do this, but FCA is not allowed to do so at Mt. Dora High School.  That’s discrimination and that’s illegal.”

School board policies break up groups into three categories: curricular, co-curricular, and non-curricular.  The Fellowship of Christian Athletes falls into the last category, and under board policy they would therefore only get equal access to similar clubs, not the same access as co-curricular groups.  “The Supreme Court has said loud and clear any non-curricular club such as FCA must have the same type of access as any other type of club, non-curricular or curricular, in a public high school,” Guschov said.

Source: News 13, 4/14/14, By Dave D’Marko

[Editor's Note: LC's press release announcing the suit states that school officials at Mount Dora High School are discriminating against the FCA by denying it equal access to school facilities given to other student clubs.  Some of benefits allegedly denied CFA include: announcements in the hallways and on the school’s marquee, a club webpage on the District’s website, and a stipend for the club’s faculty advisor.

The legal complaint includes 5 federal law counts: 1) Equal Access Act; 2) Freedom of Speech Clause; 3) Equal Protection Clause; 4) Free Exercise of Religion Clause; and 5) Establishment Clause.  The complaint also contains four state law counts that mirror the federal constitutional claims.

In March, 2014, Legal Clips reported on another student club suit against the Lake County School District, this one by a middle school gay-straight alliance club, and on a court order denying the club a preliminary injunction.]

Knife wielding student wounds 21 at Pennsylvania high school

The New York Times reports that on Wednesday, April 9, a 16-year-old student walked through the hallway of Franklin Regional High School, in suburban Pittsburgh, stabbing and slashing students with two large knives.  The attack ended when the student was tackled by an assistant principal.

The student stabbed 20 students and a security guard and sent students running from the school, officials said.  At least four of the students had serious wounds to the abdomen and torso, and were in critical condition, but were expected to survive.  The attack lasted about five minutes.  At one point, the student was confronted by a school security guard, but the guard was unable to subdue him and was stabbed in the abdomen.

The suspect, Alex Hribal, was treated for cuts to his hand at a hospital before he was taken into custody.  He was charged with four counts of attempted homicide, 21 counts of aggravated assault and one count of possessing a prohibited weapon on school property.

The police said they were investigating whether the student might have been bullied, but they said they did not have concrete evidence of it.  Investigators are also looking into reports of a threatening phone call between the 16-year-old and another student the night before.

Source: The New York Times, 4/9/14, By Emma Fitzsimmons and Timothy Williams

[Editor's Note: The National School Boards Association released the following statement on April 9: “Our deepest sympathies go out to the 20 students and staff seriously injured in today’s stabbing rampage at Franklin Regional Senior High in Murrysville,” said NSBA Executive Director Thomas J. Gentzel.  “As the police, school and local community begin to piece together facts on what led to this horrific crime, it is important to emphasize how rapidly the school district mobilized to keep district students at all levels – middle, high school, and elementary – safe.”

NSBA's Issue Brief on School Safety suggests the following actions to make the school environment safer:

• Federal resources for school safety are spread across a number of agencies.  A widely available guide should be published about where schools can access funding opportunities and/or technical assistance for disaster preparedness and emergency response operations.
• As communities prepare for readiness and response activities the need to ensure the inclusion of school safety as a component for homeland security operations with state and local first responders is paramount.
• The availability of funding for school resource officers should be addressed as an option for districts.
• Expansion and strict enforcement of the Gun Free School Zones Act should be addressed.
• Greater resources and facilitation are needed for wrap-around services to students. For example, expansion of the current Promise Neighborhoods program would be an option to address this need.
(The Promise Neighborhoods program supports cradle-to-career initiatives that call on all parts of the community to provide comprehensive wraparound supports to surround schools, such as high-quality early learning, rich after-school activities, mental health services, and crime prevention).]

Indiana Supreme Court upholds principal’s criminal conviction for failing to report alleged student-on-student rape as suspected child abuse

Smith v. State of Indiana, No. 18S02-1304-CR-297 (Ind. Mar. 27, 2014)

Abstract: The Indiana Supreme Court, in a 3-2 split, rules that evidence was sufficient to uphold a high school principal’s conviction for violating the state’s mandatory reporting of suspected child abuse statute.  The incident involved a student-on-student rape at school.  The court also rejected the principal’s vagueness challenge to the statute.

Facts/Issues: G.G., a student at Muncie Central High School (MCHS), had previously been found to be a child in need of services and made a ward of the Indiana Department of Child Services (IDCS).  As such, she resided at the Youth Opportunity Center in Muncie (YOC), which served as her custodial parent and provided care, room, and board pursuant to a contract with IDCS.

Around 12:30 P.M. on November 9, 2010, another student brought G.G. to MCHS Assistant Principal Kathy McCord’s office.  G.G. told McCord that she had been raped by a male student, identified as S.M., in a school bathroom.  McCord immediately informed Principal Christopher Smith of the rape allegation.  G.G. recounted the allegation to Smith.

Principal Smith did several things.  He brought the nurse in to stay with G.G., had G.G. provide a written statement, directed an AP to review the school’s security footage to identify the whereabouts of the two students, and talked to the district’s director of human resources who said that Smith should have another administrator present when he interviewed S.M., but did not need a security officer as they were not sure if it was a criminal matter or not.  Smith also had an AP contact the YOC, who said they would send a driver to take G.G. to the emergency room.  Smith interviewed S.M. at approximately 1:30 with athletic director Thomas Jarvis present.  S.M. denied the allegations.  He was not asked to provide a written statement.  Smith returned S.M. to his classes, where he stayed for the rest of the day until he went home at dismissal time.  Smith spent the rest of the afternoon until 4:00 P.M. conducting interviews for an open administrator’s position.

During these events Smith was asked by an AP and by AD Jarvis if the police should be contacted, and Smith said “no.”  There were between 3 and 5 sworn police officers at the school serving as security officers.

Smith asked an AP to search S.M.’s and G.G.’s lockers for notes S.M. had said were exchanged between the two students.  The AP enlisted the help of Police Officer Mike Edwards in the search, but did not inform Edwards about the rape allegation.  Edwards went home around 3:30 P.M.  When his supervisor contacted him about the rape, he went to the hospital to act as investigator until one was assigned to the case.

Shortly after 4:00, Smith called the assistant superintendent to inform him of the rape allegation, who told Smith to contact IDCS.

Around 4:30, Sloan placed a call to the Indiana Child Abuse Hotline, operated by IDCS.  Smith explained G.G.’s allegations to the hotline operator, who indicated that because S.M. was also sixteen, “this would be something I believe that we would probably refer to law enforcement,” and that “this looks like something we are going to screen out on our end,” but she would forward the report to her supervisors.  Smith told the operator that he would contact law enforcement.

After checking on G.G.’s status at the hospital, Smith asked if the YOC intended to report the allegation, or if the school should do it.  He was informed that the school should make the report, as the incident occurred at the school.  Smith then reviewed the situation with the district’s chief of security and operations, who advised him to inform the police.  The chief of security then went to the hospital to check on G.G., as did Smith, where they encountered Officer Edwards.

At no point did Smith, MCHS, or the district ever directly contact the Muncie Police Department to report the rape.

S.M. was interviewed by the police and admitted that he committed the rape.  He was arrested and pleaded guilty.

Law enforcement’s investigation then shifted focus to why Smith had not contacted the police at all, or DCS sooner, after G.G. informed him of the rape.  Smith told police that he assumed that notifying the YOC and getting G.G. to the hospital would take care of the police notification.  He was charged with failure to report G.G.’s allegation to DCS or local law enforcement, a class B misdemeanor under Indiana’s statutory scheme requiring school officials to report instances of child abuse.  Smith filed a motion to dismiss the charges, claiming that the state had inappropriately combined the reporting requirements of two statutes, and also arguing that the reporting statute was void for vagueness.

The trial court denied Smith’s motion and affirmed the constitutionality of the criminal provision, but amended the charging information to cure Smith’s claim that the information inappropriately combined two statutory provisions.  Smith was convicted following a bench trial.  Smith appealed, claiming the evidence was insufficient to sustain his conviction and also reiterating his claim that the criminal statute was unconstitutionally vague.  In a split opinion, the Indiana Court of Appeals reversed and vacated Smith’s conviction.  The majority concluded that the State had failed to present sufficient evidence that Smith had reason to believe G.G. had been a victim of child abuse as required by the reporting statute, because neither he nor his fellow administrators believed that a student-on-student rape was child abuse as defined by the Indiana Code.  It also interpreted the statutory scheme to permit a reasonable investigation made in good faith.  The Indiana Supreme Court then granted transfer, vacating the Court of Appeals’ decision.

Ruling/Rationale: The three-judge majority affirmed Smith’s conviction.

The Indiana Code provides that “an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article.”  The report must be made “immediately . . . to: (1) the department [DCS]; or (2) the local law enforcement agency.”  An individual has “reason to believe” a child is a victim of child abuse or neglect when the individual is presented with “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.”  At the time of the incident, a “victim of child abuse or neglect” was defined in relevant part as “a child described in: (1) IC 31-34-1-1 through IC 31- 34-1-5.”  That range of code provisions includes section 31-34-1-3, which provides that:

(a) A child is a child in need of services if, before the child becomes eighteen (18) years of age:

(1) the child is a victim of a sex offense under:

(A) IC 35-42-4-1 [the code provision for rape]; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

Understanding the contours of Indiana’s child abuse reporting law requires, as phrased by the dissenting judge, “reference to no fewer than five separate statutory provisions contained in two different titles and four different articles of the Indiana Code.”

The majority summed up Principal Smith’s reporting obligation, and the elements the state must prove beyond a reasonable doubt in their prosecution, as follows:

(1)  the defendant had reason to believe;

(2) that the student was a victim of child abuse or neglect as (a) a victim of rape, (b) who needed care, treatment, or rehabilitation that she was not receiving and that was unlikely to be provided or accepted without the coercive intervention of the court; and

(3) the defendant knowingly;

(4) failed to immediately make a report to (a) DCS or (b) a local law enforcement agency.

Smith’s appeal focused on elements 1, 2(b), and 4.  Specifically, Smith argued that the evidence at trial was insufficient to prove he had reason to know that G.G. was the victim of child abuse as the term is defined by the statute.  He also contended that his call to Y.O.C. satisfied the statute’s reporting requirement and in the alternative his report to IDCS four hours later was “immediate.”  Finally, he asserted that the criminal provision of the reporting statute is unconstitutionally vague as applied to him.

Smith’s central contention was that he had no reason to believe that a rape allegation by another minor could constitute child abuse.  In addition to himself, five fellow school administrators with whom he was consulting at the time did not believe that the child abuse reporting law covered student-on-student matters.  In addition, Smith introduced at trial “administrative guidelines and manuals promulgated by the school district and, in one instance, edited and approved by DCS and the Delaware County Prosecutor’s office—either not defining child abuse or defining child abuse as a sexual act between an adult and a child.”  Smith argued that he therefore did not have reason to suspect child abuse and, moreover, Indiana’s code supported his position because it defines “reason to believe” as “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.”  Smith’s fellow administrators, individuals with similar training and background, testified that they did not believe a student-on-student rape constituted child abuse.  Smith also pointed out that the DCS hotline operator did not treat the student-on-student rape allegation as possible child abuse, because S.M. was a minor.

The assistant superintendent who advised Smith to inform the DCS gave the following explanation for his advice: “I had a superintendent friend in another state where I worked that didn’t report child abuse that day, wanted to take another day, wanted to make an investigation himself.  Sheriff come picked him up and took him to jail.  I knew that you needed to, uh, take the responsibility and get help.”

The majority dismissed Smith’s reliance on his colleagues’ understanding and the school district’s training manuals, saying that the colleagues were “all wrong” and the manual was “incorrect.”  The child abuse reporting statute encompasses the facts presented to Smith in G.G.’s allegation.

Smith argued that he did not “knowingly” fail to make a report, because he clearly did not know that he must.  The panel expressed some support for this argument, out of concern for “criminaliz[ing] ignorance,” but concluded that public policy required that it be rejected in this case.  “But if Smith’s mistaken interpretation of the law were a defense to his criminal liability, it would remove all incentives from any such professionals to understand the scope of that statutory duty.”  The panel went on:

The primary goal of statutory interpretation is to give effect to the General Assembly’s intent, Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010), not to undermine it.  And to say this approach would chill reporting of child abuse or neglect in Indiana would grossly understate its impact.  It would tacitly encourage administrators and other professionals to simply not read the statutes in full because, to sum up Smith’s defense: if you just don’t learn what child abuse is, you’ll never get in trouble for not reporting it.  It would reward systemic ignorance in entire school districts and corporations, to the obvious detriment of the very children the statutes are supposed to be protecting.

The majority further concluded that Smith failed to act with a sense of urgency by delaying for four hours before making his report and, thus, failed to report the suspected abuse immediately as required by law.  It rejected Smith’s assertion “that the reporting statutes permit a citizen to delay reporting in order to ‘assess and reflect’ before facing criminal liability and professional censure.”  The panel determined that “the statutes do the opposite—they require immediate reporting of suspected child abuse or neglect, and in furtherance of that aim immunize from criminal and civil liability those who immediately report conduct that turns out after later assessment and reflection by DCS or law enforcement to have been innocent.”

The majority concluded:

In sum, it appears from the record as though when time was of the essence, Smith dawdled, delayed, and did seemingly everything he could to not contact DCS or the police.  It is therefore a reasonable inference to draw, from this evidence, that Smith knowingly failed to“immediately” report the child abuse as he was obligated to do by statute.

The majority also rejected Smith’s claim that informing YOC of the allegation satisfied his obligation to report it to DCS or the police, as well as his vagueness argument.

The dissent considered it highly relevant that “[t]he statutes at issue are ambiguous, confusing, complex, and interwoven.”  The dissent said that the “evidence compels me to conclude that as applied to this case the critical inquiry is whether Smith knew or should have known that rape of a minor student by another minor student constituted ‘child abuse.’  In my view the evidence is clear. He did not.”

Smith v. State of Indiana, No. 18S02-1304-CR-297 (Ind. Mar. 27, 2014)

[Editor's Note: In February 2014, Legal Clips summarized an article in U.S. News & World Report reporting that a Government Accountability Office (GAO) report says schools need to be more vigilant in preventing and reporting child sexual abuse.  The GAO report also calls on federal agencies to better disseminate information to help schools prevent and report sexual abuse, and to better track and analyze incidents of sexual abuse committed by school personnel.  The GAO report found that even though 46 states have laws requiring school officials to report child sexual abuse and 43 have penalties for not reporting incidents, many states and school districts vary in how they promote awareness and prevention training for school personnel, as well as in how they report suspected abuse.  Those discrepancies in policy and reporting measures have led to many schools being unaware of their responsibilities in preventing abuse, the report says.] 

Minnesota enacts stringent anti-bullying law

Minnesota Gov. Mark Dayton has signed bullying prevention legislation that will require increased vigilance on the part of schools to protect students from bullying and harassment by classmates, reports the Star Tribune.  The Safe and Supportive Schools Act (SSSA) replaces a law that was viewed as one the weakest anti-bullying laws among the states.

The SSSA is the result of two years of wrestling in the state legislature over the details, language and philosophy of the legislation.  Opponents charged it was too prescriptive and would deprive local district officials of control to best address problems.  The SSSA requires local districts to track and investigate instances of bullying.  In addition, the districts must train school staff and teachers on how to prevent bullying.

Although the new law removes Minnesota from the ranks of those having weak legislation, it is not as strong as it was initially proposed.  Some provisions, such data collection, reporting, and mandatory training of school volunteers, were eliminated from the final version at the urging of the Association of Metropolitan School Districts and the Minnesota School Boards Association.  Districts will not have to adopt the state’s model policy unless they decline to devise one of their own.  Many already have anti-bullying policies in place.

Cost estimates for statewide implementation of the new law have ranged between $5 million and $25 million.

Urban and rural legislators were split over the bill.  Fred Nolan, executive director of the Minnesota Rural Education Association, said many of his group’s members wanted to keep the previous law in place.  “The issue is not as salient in our schools as it is for many metro schools,” he said.  “Many felt as though it was a solution looking for a problem.”

Source: Star Tribune, 4/10/12, By Kim McGuire and Rachel E. Stassen-Berger

[Editor's Note: The Minnesota House of Representatives Public Information Services (HRPIS) has provided a detailed summary of the SSSA. In addition to the provisions highlighted in the Star Tribune article, some provisions noted by HRPIS are:

strategies to protect a victim of bullying, reprisal or retaliation; 

the establishment of a school climate center at the Education Department to help schools implement the act; and 

in accordance with federal and state law, notification to the parent or legal guardian of a student allegedly bullied when school personnel receive a report of prohibited conduct, throughout and upon completion of the investigation, and upon determining the course of any disciplinary action.

In August 2012, Legal Clips summarized an Associated Press article in The Sacramento Bee reporting that a Minnesota task force, called “The Prevention of School Bullying Task Force”, urged state lawmakers to toughen up a state law on bullying, harassment, and intimidation in schools.  In a report given to Gov. Dayton, who convened the 15-member group last year, the task force recommended that the state legislature repeal the state’s current anti-bullying law, and replace it with a stronger law.]

Parents sue Pennsylvania district for banning student distribution of St. Valentine’s message

The parents of an elementary school student in Nazareth, Pennsylvania have filed a lawsuit in federal court, reports The Express-Times, against the Nazareth Area School District (NASD) alleging that school officials at Shafer Elementary School prohibited their son from handing out a religious themed note in Valentine’s Day cards to classmates.  The suit argues that NASD’s policy banning the dissemination of religious materials in school violates the family’s right to free speech.

The boy and his family prepared Valentine’s with candy to hand out in class, but when they found out candy was not permitted for distribution, they decided to replace the candy with notes about the history of St. Valentine, according to the suit.  The note for each child read, “St. Valentine was imprisoned and martyred for presiding over marriages and for spreading the news of God’s love.  In honor of St. Valentine’s Day, I want you to know that God loves YOU!!!!” The note ends with the passage from the Bible, John 3:16.  The notes were removed when the Valentine’s were distributed.

The family is being represented by the Alliance Defending Freedom (ADF).  In December 2013, ADF sent a letter to NASD Superintendent Dennis Riker urging him to change the policy banning the distribution of religious materials.  When the family reached out to him to intervene on Feburary 2014 to allow the student to distribute the cards with the note, Riker allegedly told them he forwarded the matter to the school district’s attorney to handle. NASD’s attorney Gary Brienza followed up with an email to the family saying he was looking into the matter and said it is “being taken seriously.”

The suit alleges that the family was denied due process and treated as outsiders due to their beliefs.  The suit seeks an injunction suspending the district policy and a judgment throwing it out as unconstitutional.  It also calls for payment of legal fees.

Source: The Express-Times, 4/8/14, By Rudy Miller

[Editor's Note: In December 2013, Legal Clips summarized an article in the examiner.com reporting that ADF had filed a federal lawsuit against Unified School District No. 204 (USD 204) on behalf of a middle school student, alleging that the student was prohibited from distributing fliers promoting a student led prayer event, known as “See you at the Pole,” which takes place on campus before school hours.] 

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