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Pennsylvania court dismisses suit challenging the constitutionality of the state’s system for funding schools

According to the Pittsburgh Post-Gazette, a Pennsylvania Commonwealth Court has ruled that the power to make decisions on school funding rests with the General Assembly and not the courts. As a result, it dismissed a suit brought by a coalition of school districts, parents and education associations. The Commonwealth Court’s decision sets up an appeal to the Pennsylvania Supreme Court in a lawsuit claiming that Pennsylvania’s funding system fails to meet the state’s obligation to students in poorer school districts.

The coalition’s attorneys argued that the adoption since that time of state academic standards allows the courts to assess whether students are achieving their educational objectives. They have indicated they will appeal the ruling to the state supreme court. “This is a question of paramount importance to all Pennsylvanians, and we always knew this would ultimately be decided by the Pennsylvania Supreme Court,” said Jennifer Clarke, executive director of the Public Interest Law Center of Philadelphia.

The six school districts, parents of school children, Pennsylvania Association of Rural and Small Schools, and Pennsylvania state conference of the NAACP say the state has violated its constitutional obligation to provide education by sending too little money to schools and by allowing schools in poor communities to operate with less funding per student than do schools in wealthy places. The Commonwealth Court’s opinion stated: “This is a legislative policy determination that has been solely committed to the General Assembly.” 

Pennsylvania  Senate President Pro Tem Joe Scarnati, on the other hand, applauded the ruling. He said, “Today’s decision by a unanimous Commonwealth Court validates our position that decisions regarding education funding are fully vested in the Legislature.” Scarnati also warned that an appeal of the ruling would increase the cost of the lawsuit to taxpayers.

Source: Pittsburgh Post-Gazette, 4/21/15, By Karen Langley

[Editor’s Note: In November 2014, Legal Clips summarized an article in the the Philadelphia Magazine reporting that a coalition of six school districts, the Pennsylvania chapter of the NAACP, the Pennsylvania Association of Rural and Small Schools and parents had filed suit alleging that the state had “adopted an irrational and inequitable school financing arrangement that drastically underfunds school districts across the Commonwealth and discriminates against children on the basis of the taxable property and household incomes in their districts.” The suit sought to equalize the wide disparities in per pupil spending between affluent and lower-income districts by increasing state funding to financially strapped districts.]

Sua Sponte: EEOC begins use of new Digital Charge pilot program on May 1

Though not publicly announced yet by the agency, the EEOC begins use of a new “Digital Charge” pilot program on May 1, 2015 in the Charlotte, NC and San Francisco, CA field offices for employment discrimination charges filed against non-federal employers, like school districts.  (See the Editor’s Note below for the jurisdictional areas covered by these two field offices.)

As referenced in the EEOC’s Fiscal Year Budgets and Performance Reports over the last two fiscal years, the “move towards electronic submission of documents, via a secure portal for electronic transmittal and the receipt of charge-related documents, information, and communication, and the creation of digital charge files will increase efficiencies, improve collaboration and knowledge sharing across the agency, enhance data integrity, reduce paper file storage and manual archiving/destruction requirements, and enable a more mobile workforce.”

The EEOC has already completed and implemented this electronic process for federal agency-to-federal agency document transmission and sharing for complaints filed by federal employees.  Now, the EEOC is turning its attention to non-federal employers, like school districts.

As explained in a “Legal Alert” by McGuireWoods, under the “Digital Charge” process, a school district employer will no longer receive the usual forms informing it that a charge of discrimination has been filed against it.  Instead, a school district will receive just a one-page letter titled “Notice of Charge of Discrimination” that will include a link to view the entire charge online via a secure portal.  The letter will inform the school district to log on to the secure portal that is specific to that charge of discrimination.  This specific portal, which is shared between the school district and the EEOC, is to be used by the school district not only to view the full charge of discrimination, but also to submit electronically any documents to the EEOC, including notices of appearance, requests for extension of time, supporting documentation, and the school district’s position statement.

At this time, the “Digital Charge” pilot program is set up to receive documents and correspondence only up to the point that the school district submits its position statement.  Presently, any documents to be submitted after the position statement, either voluntarily by the school district or in response to an EEOC request, are to be submitted either by e-mail or regular mail, and not through the secure portal.  This suggests that a school district should be mindful of the order in which the position statement and any supporting documents are transmitted through the secure portal, if not done so as one entire document.

As the “Legal Alert” points out, because this new pilot program has not been well-publicized (it is not currently on the EEOC’s own website), it is especially important for school districts to make employees who routinely receive EEOC notices of charges of discrimination aware of this new process, so that the school district can respond to such notices in a timely fashion.

As of now, EEOC’s plan is that on June 1, 2015, respondent school districts in the jurisdictional areas of the Indianapolis, Phoenix, Detroit, Denver, and Seattle field offices will begin using the “Digital Charge” pilot program, with the rest of the country following suit in Fall 2015.  See the EEOC’s Office List and Jurisdictional Map to determine which field office covers your school district.

[Editor’s Note:  The Charlotte field office covers all of North Carolina, most of South Carolina (EXCEPT the counties of Allendale, Bamberg, Barnwell, Beaufort, Berkeley, Charleston, Colleton, Dorchester, Georgetown, Hampton, Jasper, and Williamsburg), and most of Virginia (EXCEPT the counties of Arlington, Clarke, Fairfax, Fauquier, Frederick, Loudoun, Prince William, Stafford, and Warren, and the cities of Alexandria, Fairfax City, Falls Church, Manassas, Manassas Park, and Winchester.

The San Francisco field office covers all of Alaska, Idaho, Montana, Oregon, and Washington.  This field office also covers most of California (EXCEPT the counties of Fresno, Imperial, Inyo, Kern, Kings, Los Angeles, Madera, Mariposa, Merced, Mono, Orange, Riverside, San Benito, San Bernadino, San Diego, San Luis Obispo, Santa Barbara, Tulare, and Ventura), and most of Nevada (EXCEPT the counties of Clark, Esmeralda, Lincoln, Mineral, and Nye).]

Sua Sponte OCR issues report for fiscal years 2013 and 2014 to the President and Secretary of Education on the agency’s activities and accomplishments

The U.S. Department of Education’s Office for Civil Rights (OCR) has published the Protecting Civil Rights, Advancing Equity, Report to the President and Secretary of Education highlighting the agency’s activities and accomplishments for the fiscal years 2013-2014. The report’s  executive summary/highlights section states: “OCR wrote and released 11 comprehensive policy guidance documents in FY 13–14 to notify schools and other recipients of their legal obligations and to help them comply with the law.” It also said, “OCR emphasized the importance of data by releasing a new, expanded Civil Rights Data Collection that made equity indicators in nearly every public school and district in America transparent.”

According to the executive summary, “OCR increased the breadth, depth, and transparency of its enforcement activities while maintaining the quality and pace of its resolutions. In FY 2013, OCR received 9,950 complaints, initiated 30 compliance reviews and directed inquiries, and resolved 10,128 cases overall. In FY 2014, OCR received a record-high 9,989 complaints, initiated 38 compliance reviews and directed inquiries, and resolved 9,407 cases total. ”

The report itself is devoted to coverage of OCR’s enforcement efforts in regard to Title VI, discrimination based on race, color, or national origin, Title IX, discrimination based on sex, Section 504 and ADA Title II, discrimination based on disability, along with the Age Discrimination Act and the Boy Scouts of America Equal Access Act.

In addition, the report contains an appendix with an index of cases resolved with agreements.

Sua Sponte: Education Department issues final rules on IDEA maintenance of effort requirements

The U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) has issued a final rule revising the regulations governing the requirement that to be eligible to receive IDEA Part B funds, state (SEA) and local educational agencies (LEA) must maintain or exceed their fiscal efforts (“maintenance of effort” (MOE)) from one school year to the next in the funding of special education programs and related services under the IDEA.

At the proposed rule stage, OSERS proposed revisions to the regulations governing the requirement that LEAs maintain effort, specifically: (1) the compliance standard; (2) the eligibility standard; (3) the level of effort required of an LEA in the year after it fails to meet MOE; and (4) the consequence for a failure to meet MOE.

In the final rule, OSERS has specifically set out the four methods that LEAs may select from to meet the eligibility and compliance standards with regards to funding sources: (i) local funds only; (ii) the combination of state and local funds; (iii) local funds only on a per capita basis; or (iv) the combination of state and local funds on a per capita basis. The final rule makes clear that an LEA may choose any one or more of these funding sources in establishing eligibility and compliance, and SEAs must permit LEAs to do so. OSERS also changed language in the eligibility and compliance standards to provide that the comparison year is the most recent fiscal year for which information is available. It is important to note that OSERS kept intact an LEA’s ability to take into consideration any exceptions or adjustments that an LEA took in a previous year or reasonably expects to take in the fiscal year being budgeted.

OSERS further stated that it intends to issue additional guidance on LEA maintenance of effort and to continue to provide technical assistance to states to address state-specific concerns. The final rule takes effect on July 1, 2015.

[Editor’s Note: In December 2013, NSBA submitted comments on the proposed rule, expressing disappointment that OSERS did not propose amendments to the MOE regulations that adequately recognize the significant fiscal challenges facing many states and local communities in the delivery of educational services to both general and special education students. 

NSBA urged OSERS to offer amended rules that would recognize the broad range of differences in current and projected budgets and revenues affecting LEA operations and provide greater flexibility that would allow SEAs and LEAs to construct a methodology that would take such differences into consideration.

NSBA also identified that the then-proposed standard for determining compliance with the MOE requirements did not address the flexibility LEAs need in their budgeting processes as state and federal funding levels continue to shrink, and as the demographics and educational needs of their students vary from year to year. Additionally, NSBA addressed OSERS’ efforts to overstep its regulatory bounds by attempting to create federal programmatic obligations for LEAs, where the statutory language of the IDEA is specifically silent. In particular, OSERS wanted to place on the LEAs the requirement that if an LEA fails to meet MOE for a fiscal year, the financial support for future years is to be the amount that would have been required in the absence of the LEA’s failure.]

U.S. Supreme Court rules that courts have authority to conduct limited review of EEOC’s efforts to settle employment discrimination disputes

According to the Associated Press (AP), the U.S. Supreme Court has issued a unanimous decision in Mach Mining LLC v. Equal Employment Opportunity Commission. The Court ruled that federal courts have authority to make sure the Equal Employment Opportunity Commission (EEOC) is trying hard enough to settle charges of job discrimination before filing lawsuits against employers. The justices said that lower courts can review whether government lawyers were being reasonable during settlement negotiations with companies accused of bias.

Although the EEOC has a legal duty to try settling cases first, the question was how much a court could look into those negotiations to make sure the EEOC was acting in good faith. A number of employers have complained that the EEOC has been overly aggressive in recent years, rushing to file costly lawsuits without trying to resolve disputes informally. The federal government argued that courts should have no role in probing confidential settlement talks. But business groups called for expansive review.

Justice Kagan, writing for the Court, adopted a middle ground. She said the scope of judicial review is limited and respects the “expansive discretion” the law gives to the EEOC over settlement talks, known as conciliation. She said the EEOC must inform an employer about specific charges of discrimination and which employees have suffered. The EEOC must also try to engage the employer in a discussion to give the company a chance to stop practices that may discriminate against racial minorities, women or other protected groups.

According to Kagan, the EEOC can simply present a sworn affidavit saying it has met these requirements. If a lower court finds the EEOC has fallen short, it can require the commission to resume settlement talks.

The Supreme Court’s ruling settles a split among appeals courts as to how deeply judges can probe into the EEOC’s settlement efforts. Some courts have required a minimal level of “good faith,” while others have performed a more thorough analysis. The 7th Circuit was the first appeals court to rule that employers cannot try to dismiss EEOC lawsuits by claiming conciliation efforts were lacking.

Source: U.S. News & World Report, 4/29/15, By AP

[Editor’s Note: The decision in Mach Mining LLC v. EEOC has no concurring opinions.]

New York Civil Liberties Union and Legal Services of Central New York file suit on behalf of immigrant students who are not being allowed to attend school district’s high school

Syracuse.com reports that the New York Civil Liberties Union (NYCLU) and Legal Services of Central New York (LSCNY) have filed suit in federal court on behalf of six refugee students and a class of similar immigrant students against Utica City School District (UCSD). The suit alleges that UCSD is barring refugee students between the ages of 17 and 20 from attending Proctor High School, instead sending them to two alternative schools. According to the suit, one of the alternative schools is the Newcomer Program at the Mohawk Valley Resource Center for Refugees, where the only class offered is English as a second language.

NYCLU/LSCNY charge that the students can’t earn a high school diploma, because the Newcomer Program has no classes in math, science or history. The suit claims  that UCSD’s policy violates a state law that guarantees a free public education to anyone under 21. The suit alleges that : “Each [student] came to the United States longing for freedom and opportunity, only now to be the subject of national origin discrimination.”

UCSD Superintendent Bruce Karam declined to discuss details of the suit, saying he hasn’t seen the lawsuit and will respond more fully after it’s been served on the district. However, he did say, “From what I have been advised, the allegations are totally unfounded and without merit.” Karam added, “We have never denied any student entry into our schools. We provide a quality education to all our students.”

UCSD’s attorney, Donald Gerace, insists that the district has never denied any eligible student admission to its schools. A “number of” refugee students ages 17 and older are attending the high school, he said. “The district is proud of its educational program for its (English language learner) students which has resulted in immigrant student graduates who have become doctors, lawyers, members of the US service academies and students at Ivy league schools,” Gerace said.

According to NYCLU/LSCNY’s attorneys, the policy has been in place for eight years. The suit contends that the second alternate program for refugee students, APPLE, is a GED program located in New Hartford. It claims UCSD doesn’t allow refugee students into its own GED program.

Source: syracuse.com, 4/23/15, By John O’Brien

[Editor’s Note: In NYCLU’s press release announcing filing of the lawsuit, it states that the basis of the suit is: “Since 2007, the Utica City School District and school administrators have been excluding refugees from the city’s high school who are older than 16 with limited English proficiency.” NYCLU Executive Director Donna Lieberman said: “Young people are coming to Utica after fleeing violence and persecution only to be shut out by the city’s only public high school. All children have the equal right to an education. No one benefits when a school district denies kids their shot at the American dream and limits their ability to contribute to society.”

In December 2014, Legal Clips summarized an article in Education Week reporting that the New York State Board of Regents had adopted a regulation to ensure that students are able to enroll in the state’s public schools regardless of their immigration status. This new policy prohibits schools from asking about the immigration status of students.]

 

Cyberbullying tests the limits of Texas school officials’ ability to discipline students

According to The Dallas Morning News, school administrators and school law experts in Texas are encountering difficulty disciplining students for off-campus online speech, even though the state enacted a law four years ago to combat bullying and cyberbullying in schools. “How far does the school district’s arm really reach? It just depends on the situation,” said Cristina Ruiz Blanton, a senior attorney for the Texas Association of School Boards. “It’s very case-by-case.”

While student-on-student bullying is a longstanding issue, school officials and advocacy groups point out that social media has magnified the problem by emboldening more kids to be mean, multiplying the spaces where they can prey on others and offering anonymity. Devin Padavil, first vice president of the Texas Association of Secondary School Principals, called social media “the largest unsupervised playground in the world.”

The 2011 Texas law requires that school districts adopt their own policies against bullying. Some school districts, including McKinney ISD, already had rules in place, but the law defined in more detail what the behavior looks like and what steps schools should take. For instance, lawmakers clarified that “expression through electronic means” can be bullying if it occurs at school, in a district-operated vehicle or at a school-related activity. Yet the law doesn’t address expressions made off campus — such as videos or social media posts — that seep into school life.

the law clarifies that to be considered bullying, the behavior must exploit an imbalance of power. It must interfere with a student’s education or substantially disrupt school operations. Those two aspects are key to determining whether a student’s actions constitute bullying, said Curtis Clay, an associate director of the state-funded Texas School Safety Center. “If you got two kids calling each other names and this and that and they’re both going at it, to me, that’s not really bullying,” Clay said. “Because when you talk about bullying … you got [kids] who for whatever reason don’t feel like they can stand up for themselves.”

If a school investigation finds that a student was bullied and used reasonable self-defense, state law forbids the school from punishing the student. It also gives school boards the choice to transfer the bully to another classroom or another campus.

However, when it comes to punishing students for off-campus speech, schools have to meet “a pretty high bar” because of students’ First Amendment rights, said Blanton. She indicated that case law shows that a district may be able to act if it can prove that the speech “materially and substantially” disrupted the educational process, such as causing a teacher to lose control of her classroom. She also noted that if the district perceives the speech to be a threat, it should take measures to protect students and let law enforcement determine whether it’s criminal activity.

Source: The Dallas Morning News, 4/27/15, By Julieta Chiquillo

[Editor’s Note: In July 2014, Legal Clips summarized an article in the Los Angeles Times reporting that the parents of a student at University City High School (UCHS), who committed suicide, had filed a $1-million claim against the San Diego Unified School District (SDUSD), charging that officials and staff at UCHS knew of the teasing and bullying of their son, but failed to take steps to end it. According to the parents, the student, Matthew Burdette, took his life after a video taken of him allegedly masturbating in a school bathroom went viral and subjected him to constant teasing and bullying.

Also in July 2014, Legal Clips summarized a decision by New York’s Court of Appeals, the state’s highest court, in People v. Marquan M. holding that a county’s law criminalizing cyberbullying violates the First Amendment’s Free Speech Clause. The court held that the law was overbroad and vague. It found that the county had failed to meet its burden of showing that the law’s restrictions on speech survive strict scrutiny. According to the Court of Appeals, “the text of Albany County’s law envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression.” ]

Parent files complaint with OCR against Ohio district alleging racial harassment and bullying

The parent of two biracial students has filed a complaint with the U.S.  Department of Education’s Office of Civil Rights (OCR), alleging that Lebanon School District (LSD) has ignored her complaints of racial harassment and bullying, says Education News. Heather Allen’s OCR complaint claims that her children have been the targets of  more than half a dozen incidents of racial slurs, threats and bullying. She alleges that even though she complained to the administrators at the Lebanon Junior and Senior High Schools at least nine times in the 2014-15 school year, LSD officials have yet to do anything about any of the occurrences.

Allen’s attorney, Robert Newman, said, “Our position is that a school has a responsibility to intervene and deal with issues of racism where it impacts on racial minorities in the school systems.”  According to OCR, it could take months before a decision is made as to whether or not an investigation will take place.

Source: Education News, 4/24/15, By Kristin Decarr

[Editor’s Note: In June 2013, Legal Clips summarized an article in the Times Union reporting that OCR had cited the Albany school district for inappropriately handling a student’s complaint of race-based bullying. The eighth-grade honors student, who is biracial, was repeatedly harassed by white classmates at Hackett Middle School in March 2012, according to a federal complaint filed by her parents. The district is now required by OCR to send an offer of counseling to every black child who attended Hackett Middle School in the 2011-2012 school year and complained about racial harassment.]

COSA Webinar: May 6, 2015 – Advising School Districts in Cloud Computing Contracts

Software as a Service (SaaS) contracts are an increasingly attractive option for school districts hoping to take advantage of the benefits of cloud-based technologies. But while the list of software for students and teachers (Office 365, Adobe Creative Cloud) and enterprise solutions (MUNIS, SchoolDude) continues to grow, how can you make sure your school district’s contracts keep up with the legal issues associated with these new technologies? This session will address crucial contracting issues not covered in the COSA resource Cloud Computing and Student Privacy: A Guide for School Attorneys, such as foreign data centers, data audit trails, data security, practical limits on contract enforceability, avoiding spoliation of evidence, state records retention laws, and FOI. Mr. Tokarz has presented at several NSBA conferences on technology and contracting issues.  Register now for this webinar.

 

  • Time: 1:00 p.m. – 2:15 p.m. (EDT)
  • Host: Sonja Trainor, Director, Council of School Attorneys
  • Presenter: Tom Tokarz, Special Counsel, Henrico County Public Schools, VA

Please Note: CLE credit for COSA live webinars may be available in your state. Please contact Laura Baird at lbaird@nsba.org for more information.

Parents of student given year suspension for possession of leaf that appeared to be marjuana, but was not, file suit against Virginia district

According to The Roanoke Times, Bruce and Linda Bays, the parents of a sixth grader at Bedford Middle School (BMS) who was suspended for a year, have filed suit in federal court against Bedford County Schools (BCS) and the Bedford County Sheriff’s Office (BCSO). The student was suspended in September 2014 after some students told a BMS school administrator that the student had bragged to schoolmates that he had marijuana. An assistant principal at BHS conducted a search of the accused student’s backpack, which netted  a leaf and a lighter. After reporting the suspicious leaf to  the BCSO, a sheriff’s deputy filed marijuana possession charges in juvenile court.

However, three field tests of the leaf all came back negative for marijuana. The local prosecutor’s office dropped the possession charge. The student remains on suspension, but was due to return to school on March 23. Based on the medical opinion of the student’s psychiatrist, BCS has agreed to allow him to resume attending another school. However, the student will remain on strict probation until next September, under the terms of the original suspension letter. A minor infraction could get him kicked out again.

The parents of the student identified in the suit as R.M.B. allege that BMS Assistant Principal Brian Wilson and school operations chief Frederick “Mac” Duis violated R.M.B.’s federal constitutional due process rights. The suit also charges the BCSO’s with malicious prosecution because Deputy M.M. Calohan, a school resource officer, filed marijuana possession charges against the student despite field tests that indicated otherwise.

The Bays’ attorney, Melvin Williams, said, “Essentially they kicked him out of school for something they couldn’t prove he did.” He added, “The field test came back not inconclusive, but negative. Yet she went to a magistrate and swore he possessed marijuana at school.”

Attorney Jim Guynn, who is representing Bedford County Sheriff Mike Brown, has moved to dismiss the suit for a couple of reasons. First, under the school board’s anti-drug policies it may not matter whether the leaf was marijuana or not. Next, Guynn alleges that the malicious prosecution claim against the sheriff’s deputy should be dismissed  because it’s in the wrong court. “Malicious prosecution is a state claim,” Guynn said. “If you want to make a malicious prosecution claim you need to be in state court.” In addition, Guynn argued that the deputy’s filing of the juvenile court charge against R.M.B was not malicious. He said that it was not malicious because she visually identified the leaf as marijuana.

According to Guynn, “The young man was telling people on the bus that he had marijuana that was given to him by someone from the high school.” He pointed out that the leaf was not dried, as marijuana typically is, but that “it was a little sprig” that looked to Guynn exactly like a photo of a marijuana leaf he found on the Internet. He emphasized that under the school system’s anti-drug policy it may not matter whether the leaf was actually marijuana or a similar-looking leaf, such as from a Japanese maple tree, because the policy treats “lookalike” and “imitation” drugs the same as the real thing.

Guynn asserts that the policy is standard throughout school districts in the Commonwealth of Virginia. “It’s the same punishment and exactly the same result” whether the leaf was marijuana or not, he said, and for that reason the due process claim should also be dismissed. 

Williams counters: “If the school argues now that they were justified in suspending him for possession of lookalike marijuana, that’s disingenuous because they’ve never argued that prior to the suit being filed.”

U.S. District Court Judge Norman Moon ordered the lawsuit to be referred to mediation with U.S. Magistrate Robert Ballou, which hasn’t yet been scheduled.

Source: The Roanoke Times, 3/15/14, By Dan Casey

[Editor’s Note: BCS’ anti-drug policy is an example of a zero tolerance policy. These policies have lost much of their luster in recent years. In January 2014, Legal Clips summarized an article in the Washington Post reporting that the Maryland State Board of Education (MBE) had approved far reaching changes to the state’s discipline policies to achieve the goal of a more constructive approach to student discipline that eliminates racial disparities in suspensions and keeps disciplined students in school. The new regulations allow principals to suspend students but establish a more rehabilitative philosophy and reserve the harshest penalties for the most severe offenses.

Also in January 2014, Legal Clips summarized an article in mlive reporting that the Vera Institute of Justice (VIJ) had issued a report that found that zero tolerance policies are having little to no effect on student classroom behavior. The report states: “No studies show that an increase in out-of-school suspension and expulsion reduces disruption in the classroom and some evidence suggests the opposite effect.”]

 

 

 

 

 

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