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Mother of student who committed suicide after being bullied by peers files suit against Chicago school district

The Chicago Tribune reports that Beth Martin, the mother of McKenzie Phlipot, who attended the Peirce School of International Studies, has filed suit against Chicago Public Schools (CPS), alleging that school officials failed to address the peer bullying of her daughter that eventually led her to commit suicide. The suit asserts that school officials failed to fully investigate the claims, intervene in the bullying and discipline any offenders.

The suit alleges that school officials knew that the bullying of the student was “an ongoing issue, such that, according to the Student Code of Conduct, an investigation must be followed.” Officials also allegedly “failed to inform police or juvenile authorities of the assaults, harassment, and otherwise dangerous and violent behaviors taking place on school premises” prior to the suicide.

CPS’ Law Department launched an investigation into the situation based on a flier distributed by one of McKenzie’s parents, which contained  allegations that the school was aware of the bullying and unfair treatment, but failed to address it. Last month, a CPS spokesman said that the investigation concluded that “there was no credible evidence of bullying.” A district official later repeated that statement when briefly addressing the issue during a school meeting.

The suit, which names CPS and the Chicago Board of Education as defendants, seeks damages in excess of $50,000. School officials have otherwise declined to comment on details of the district’s investigation, citing the CPS policy of not commenting on legal matters. CPS spokesman Bill McCaffrey said, “CPS continues to work with the Peirce school community to ensure a safe learning environment for its students.”

Source: Chicago Tribune, 10/9/14, By Juan Perez, Jr.

[Editor's Note: In February 2013, Legal Clips summarized an Ohio federal district court decision in Vidovic v. Mentor City Sch. Dist. granting a school district's motion for summary judgment in a suit brought by the parents of a high school student who committed suicide, which claimed that the student was repeatedly subjected to peer bullying and harassment in violation of her Fourteenth Amendment substantive and procedural due process rights, Fourteenth Amendment equal protection rights, Title VI and Title IX rights and under Section 1983 related to a municipal liability claim based on the failure to train.]



COSA Webinar: October 29, 2014 – Prayer and Public School Board Meetings: Any Change After Greece?

Have your school board clients changed or strengthened their legislative prayer policies following the Supreme Court’s May 5, 2014 decision in Town of Greece, New York v. Galloway? Did the Court’s decision in Greece modify, or merely clarify, Marsh v. Chambers?

If you have questions regarding the holding in Greece  and the impact that it might have on your school board clients, you will certainly want to join us for this webinar. Our presenters are two very experienced education lawyers who will take a hard look at the decision, including prior precedent and legal arguments pro and con, for application of Greece‘s principles to school board meetings. The presenters will then provide practical tips for guiding school boards through decisions on meeting invocations.   Register now for this stand-alone webinar.

Time: 1:00 p.m. – 2:15 p.m. (EST)

  • Host: Tammy Carter, NSBA Senior Staff Attorney
  • Presenter: A. Dean Pickett, Retired, Tempe Tri-District, Tempe, AZ; Deryl Wynn, McAnany, Van Cleave & Phillips, Kansas City, KS

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.

Sayreville head football coach and four staff members suspended

N.J.com reports that the Sayreville Board of Education (SBOE) has unanimously upheld the decision to suspend head football coach George Najjar and four members of his staff. SBOE President Kevin Ciak stressed that the suspensions of Najjar and the four other tenured district employees, who are also on the football coaching staff, are “consistent with an ongoing and not yet completed investigation.” Najjar and the other tenured members of his staff have also been suspended from their teaching positions. Ciak said that the suspensions are indefinite and with pay.

The suspended employees include: George Najjar, Edward Mish, Michael Novak, Mark Poore and Timothy Ballard. The board also moved to reduce the coaches’ stipends. Najjar, who was contracted to make $11,700 for his coaching duties during the 2014-2015 calendar year, will now make $5,850. The seven other members of his staff saw their stipends reduced from $8,866 to $4,433.

Robert Berardi, a volunteer coach with the football team, accused Superintendent Richard Labbe of audibly celebrating the demise of the Sayreville football program and head coach Najjar during a closed-door meeting inside the district’s offices earlier this week. Sources close to the district later said that they were “shocked by the accusation.” Berardi’s comments, they said, “are not accurate.” They also pointed to the district’s ongoing investigation and the support of the school board that voted unanimously to uphold the coaches’ suspensions.

It is not known whether Najjar was aware of the hazing and incidents of sexual assault alleged to have taken place inside his team’s locker room. Labbe has said previously that he does not believe that Najjar and the other members of the coaching staff were aware of the alleged incidents.

Source: N.J.com, 10/22/14, By Vernal Coleman

[Editor's Note: In October 2014, Legal Clips summarized a Wall Street Journal article reporting that seven members of the War Memorial High School (WMHS) football team were criminally charged by local prosecutors and subsequently suspended from school in connection with several alleged hazing incidents. The seven players have been charged by the Middlesex County prosecutor’s office with aggravated criminal sexual contact with younger players, among other charges.] 

Ninth Circuit rules school district’s procedural violation of IDEA resulted in special education student being denied a free appropriate public education

M.M. v. Lafayette Sch. Dist., Nos. 12-15769/15770 (9th Cir. Oct. 1, 2014)

Abstract: In a 2-1 split, a U.S. Court of Appeals for the Ninth Circuit three-judge panel has ruled that a California school district’s failure to comply with the Individuals with Disabilities Education Act’s (IDEA) procedural requirement to provide parents with educational testing data deprived the parents of the opportunity to meaningfully  participate in the creation of their son’s individualized education program (IEP) thereby denying  the student a free appropriate public education (FAPE) under the IDEA. Because the panel’s majority reversed on the question of whether the procedural violation amounted to denial of a FAPE, it also remanded on the question of whether the parents were entitled to reimbursement for the audiology and processing assessments, sound-based therapy, and private reading programs that they provided for the student at their own expense.

Although the panel ruled on a number of other issues related to the ongoing dispute between the parents and the school district over the IEP and the services being provided to the student, this summary is limited to the issue of whether the procedural violation resulted in denial of a FAPE under  the IDEA and the question of reimbursement.

Facts/Issues:  C.M., a student with learning disabilities, attended Lafayette Elementary School. During the 2005-06 school year, Lafayette School District (LSD) implemented a new Response-to-Intervention (RTI) approach to assist struggling learners in the general education program. RTI was utilized as an intermediate step before referring a student for special education placement. Reading Specialist Carol Harris conducted “universal assessments” of all students in kindergarten through third grade three times each school year.

LSD staff then came together after each assessment period to discuss each student’s results to “pinpoint children that need support beyond . . . general instruction,” to guide the intervention—or additional instruction—the child would then receive, and to monitor the progress the student made in response to the implemented intervention. These meetings were called “Assessment Wall” meetings.

Through RTI, LSD identified C.M. as a student in need of reading intervention and began providing him additional instruction, which continued throughout his kindergarten year and into the following summer via a special summer class. His parents were never given the results of the full RTI Assessment.

C.M.’s kindergarten report card indicated some areas in reading and writing where he met grade level standards and some areas where he was approaching grade level standards. In first grade, C.M. continued to receive reading intervention. In October, his parents submitted a written request to the District to perform an evaluation of C.M. for learning disabilities. LSD convened two Student Study Team (SST) meetings with the parents in November and February before referring C.M. for the special education evaluation. C.M.’s RTI data graphs were not reviewed during the SST meetings.

LSD eventually completed a special education Assessment Plan on February 20, 2007, and on that same day obtained parental consent to move forward with the initial evaluation. The District conducted the evaluation in March and April. Based on the evaluation, the IEP team, which included the parents, determined that C.M. was eligible for special education because he had a phonological processing disorder. Based on this eligibility determination, the IEP team developed an education program in which C.M. would begin participating in the school’s Instructional Support Program (ISP).

C.M. participated in the ISP for the remainder of his first grade year. At the end of the year, his first grade report card indicated that he was below grade level standards in reading and approaching grade level standards in writing. In second grade, C.M. continued to participate in the ISP. In late November, his parents obtained a private evaluation from Doctor of Audiology Dimitra Loomos. Dr. Loomos’s evaluation revealed that C.M. had a central auditory processing disorder (CAPD) that was related to his learning disability. Dr. Loomos made a number of recommendations for C.M. in terms of environmental modifications, direct interventions, and compensatory strategies.

C.M.’s second grade teacher, Jody Carson, was aware of Dr. Loomos’s evaluation because she completed a report for Dr. Loomos, and one of the parents gave a copy of the final evaluation report to Ms. Carson, and an employee at the school’s front desk when school resumed after the holiday break. As of February 2008, some of C.M.’s RTI scores continued to decline.

On March, 18, 2008, LSD convened C.M.’s first annual IEP review meeting, and the IEP team developed a renewed IEP. The new IEP was not only identical to the previous IEP, but it also failed to reference C.M.’s CAPD or provide for any modifications or accommodations to address his unique deficits. C.M.’s parents consented to the renewed IEP.

About one week later, the parents received the final evaluation report for another private evaluation they obtained from Speech-Language Pathologist Deborah Swain, which found that C.M. “experiences a range from average ability to significant difficulty with specific skills of auditory-based language processing.” Throughout the spring, the parents paid for C.M. to attend sound-based therapy, and conversations between C.M.’s mother and teachers were ongoing concerning C.M.’s CAPD and the recommendations contained in both evaluation reports.

In May, an informal meeting was held at the parents’ request to discuss C.M.’s need for a speech and language assessment and clarification of the IEP to address C.M.’s CAPD. No amendments were made to the IEP. His end of the year report card for second grade indicated that he was below grade level standards in both reading and writing.

Three weeks into C.M.’s third grade year, on September 17, 2008, LSD convened an interim IEP team meeting at the parents’ request to discuss, inter alia, their concern over his lack of meaningful academic progress, the need for improved goals and objectives in the IEP, and amendments to the IEP to better address C.M.’s CAPD.

At the meeting, the parents also advised LSD that they disagreed with the 2007 Assessment results, and later that day they requested in writing an independent educational evaluation (IEE) at LSD’s expense. For two months, LSD did not respond to the IEE request and instead sought the parents’ consent to reevaluate C.M., but the parents did not consent and they did not withdraw their request for an IEE.

In December, the parents obtained an evaluation at their own expense by Licensed Psychologist Tina Guterman. Dr. Guterman’s educational evaluation, which included a review of C.M.’s prior evaluations and background, found that C.M. had auditory processing weaknesses and severe dyslexia and that his IEP services were insufficient to meet his needs. Dr. Guterman made a number of recommendations for C.M.’s instructional program. The parents subsequently withdrew C.M. from the ISP and enrolled him in an intense private reading and comprehension program that better addressed his multi-sensory integration deficits while they and LSD continued to negotiate his IEP.  Meanwhile, the IEP team participated in a series of facilitated meetings over a period of seven months and the parents ultimately refused to agree to a renewed IEP for C.M. until after his 3rd grade year.

On November 18, 2008, the same day as the first facilitated IEP team meeting, the parents filed a compliance complaint with the California Department of Education (CDE), alleging that LSD failed to comply with the IDEA procedures after their request for an IEE. Early in December, LSD responded to the IEE request by filing a due process complaint with the California Department of General Services, defending the 2007 Assessment. LSD also asked CDE to stay its investigation of the parents’ complaint because the IEE issue was pending in the Office of Administrative Hearings ( OAH)  and CDE closed its investigation.

After a three day hearing, the administrative law judge (ALJ) issued a decision holding that LSD  unnecessarily delayed in defending the 2007 Assessment and also found that the parents waited too long to request the IEE. The ALJ therefore ordered LSD to reimburse the parents for only half the cost of Dr. Guterman’s evaluation. The ALJ also found that conditions warranted reevaluation, and permitted the District to proceed with new assessments of C.M.

On April 16, 2009, the parents filed a due process complaint with the OAH, alleging 16 separate claims against LSD regarding its identification of C.M. as a child with a disability and its development of an assessment plan, the appropriateness of the 2007 Assessment, and LSD’s development and oversight of the IEP. In August of that year, the parents filed a second due process complaint with the OAH, alleging in four claims that LSD denied C.M. a FAPE. The ALJs dismissed the claims that arose before April 16, 2007, as being outside the statute of limitations, and after an eleven day hearing, held that the 2007 Assessment was appropriate, that LSD did not deny C.M. a FAPE, and that C.M. was not entitled to receive reimbursement for his private compensatory education services.

Between August 2009 and September 2010, the parents initiated three lawsuits against LSD and its Director of Student Services Dr. Dana Sassone, the Lafayette Board of Education, CDE and its Superintendent, and the California Department of General Services and its Director, in federal district court, seeking reversal of the OAH decisions, attorney’s fees, and remedies for various violations of the IDEA, § 504 of the Rehabilitation Act, and the Constitution. The district court issued multiple orders dismissing portions of the lawsuits and consolidating the remaining claims. On February 7, 2012, the district court issued its final order, finding in favor of LSD on all but one claim, and issued its final judgment on March 8, 2012. The parents appealed.

Ruling/Rationale: The Ninth Circuit panel, with one judge dissenting, reversed the district court’s ruling that LSD had not denied C.M. a FAPE. Although the panel’s majority agreed that LSD had not failed to incorporate the RTI data into the initial evaluation, it held that the school district failed to provide the parents with the RTI data in violation of IDEA’s procedural requirements. It concluded that LSD “did not procedurally violate the IDEA with respect to C.M.’s RTI data and the 2007 Assessment.” However, it found LSD had violated IDEA “by failing … to furnish the parents with the data, thereby making the parents unable to give informed consent for both the initial evaluation and the special education services C.M. received.”

After reviewing the relevant provisions of the IDEA and the U.S. Department of Education’s implementing regulations, the majority determined that LSD “procedurally violated the IDEA by failing to provide the entire IEP team with C.M.’s RTI data for the purpose of making his eligibility determination.” It pointed out that in the absence of having the data, C.M.’s parents were unable to give informed consent for both the initial evaluation and the special education services he received.

The majority found that the fact that the parents did not request information until C.M. reached third grade did not negate LSD’s procedural duty to share that data with the parents “as early as C.M.’s first grade year, when it sought to obtain their informed consent for the initial evaluation.” It also pointed out that LSD had a procedural duty to provide the IEP team with the RTI data at the April 18, 2007, meeting for making the eligibility determination. As a result, it held LSD “violated the procedural safeguards of the IDEA by not providing the parents with an opportunity to examine all records relating to C.M.”

Having concluded that LSD had procedurally violated IDEA by failing to provide the parents with complete RTI data, the majority then sought to answer the question of whether that procedural violation resulted in C.M. being denied a FAPE. It concluded that the procedural violation “prevented the parents from meaningfully participating in the IEP process,” thus denying C.M. a FAPE. The majority said, “Without the RTI data, the parents were struggling to decipher his unique deficits, unaware of the extent to which he was not meaningfully benefiting from the ISP, and thus unable to properly advocate for changes to his IEP.”

In light of its reversal of the district court’s ruling on whether C.M. had been denied a FAPE, the majority concluded that the question of whether the parents are entitled to reimbursement under IDEA for the private educational services and assessments they paid for should be remanded to the lower court.

Judge Rawlinson issued a dissenting opinion. Her dissent took issue with the majority’s view of the RTI model utilized by LSD to measure achievement levels of all students in the school. She emphasized that RTI was not a mechanism used by LSD to identify students in need of special education. Despite that fact, the judge pointed out that the majority held that LSD’s failure to provide these test results to C.M.’s parents resulted in a violation of the IDEA. She contended that the ALJ had issued a detailed decision, which should have been given deference, in which  a clear distinction was made “between use of the RTI as a means to assign students to their respective classrooms and use of the RTI as an assessment tool to determine eligibility for special education services.”

Judge Rawlinson said¸ “Rather than deferring to the ALJ’s considered resolution of this issue, the majority embarks upon a de novo review of the record to reach a conclusion contrary to that of the ALJ and at odds with the record.” She added, “Because the record reflects that the RTI assessments were not used to determine C.M.’s eligibility for special education services, this provision does not support the majority’s conclusion that the School District was required to provide the RTI data to C.M.’s parents under the IDEA.”

According to the judge, because LSD choose not to use the RTI as an assessment model, it did not have an obligation under the IDEA “to review or provide the RTI data in conjunction with the evaluation of C.M.’s eligibility for special education services.” She also rejected the parents argument that LSD was required under the provisions of § 1414(b) of IDEA to notify the parents of the description of the evaluation procedures the educational agency “proposes to conduct.” Judge Rawlinson pointed out that because LSD had not proposed to utilize the RTI model to evaluate C.M.’s eligibility for special education services, § 1414(b) did not mandate notification of the RTI data.

M.M. v. Lafayette Sch. Dist., Nos. 12-15769/15770 (9th Cir. Oct. 1, 2014)

[Editor's Note: In January 2012 , Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in M.B. v. Hamilton Southeastern Sch. holding that neither a school district’s procedural errors nor its substantive errors in developing a special education student’s individualized education plan (IEP) under the Individuals with Disabilities Education Act (IDEA) resulted in the denial of a free appropriate public education (FAPE). The panel concluded that the student’s parents had failed to present sufficient evidence that the student was not making educational progress under the IEP.]











Allegations in consulting company’s suit seeking recovery of fees for services raises questions about whether Florida district violated state election laws

According to the Sun Sentinel, a legal dispute between Strategic Message and Design Group, a New Jersey based advertising agency, and Broward County School District (BCSD) over fees owed for research and political strategy services has raised questions about whether the school district has violated Florida’s election laws. Strategic Message and Design Group’s suit alleges that BCSD skirted state election laws by creating a “sham” political action committee (PAC) to drum up support for an $800 million bond referendum.

The company also alleges that district staff compiled voting records of all of its employees and their families to show possible support for the bond. The suit names both the PAC, Citizens for Safe and Modern Schools, and BCSD as defendants. Bob DiLella of Strategic Message and Design Group insists that his company was hired by the school district, despite the fact that its official contract was with the  PAC.

The company is suing to collect $26,000, but it’s allegations that the district broke the law could have far more serious consequences.

The suit claims that BCSD created the PAC because state law prohibits governments from using taxpayer money or resources to advocate for political campaigns. Company officials say that all of their communications were with Superintendent Robert Runcie and Sheela VanHoose, the district’s director of legislative affairs, not PAC members.

The suit alleges that Runcie appointed Alan Levy as the chairman for Citizens for Safe and Modern Schools, but that the superintendent and VanHoose handled all functions, including finding office space, opening a bank account and appointing members. It states: “Citizens was a sham created to hide the participation of the (school district’s) involvement with fundraising and advocacy for pushing the bond referendum.”

Tim Donnelly, who heads the public corruption unit for the Broward County State Attorney’s Office, plans to review the civil complaint, Assistant State Attorney David Schulson said.

Runcie refutes the suit’s allegations, saying that the dispute is between the PAC and the consulting company and that it shouldn’t involve the school district. He denied creating the PAC or appointing its members. “The PAC was created by an external organization. They formed it on their own,”  he said. “How can I appoint someone to a PAC? The School Board has no legal contract or relationship.”

As for sharing voter information, Runcie said that employee lists and voting records are public, and that there is nothing inappropriate about emailing that information to a political consultant.

Source: Sun Sentinel, 10/14/14, By Scott Travis

[Editor's Note: In March 2013, Legal Clips summarized an article in the Los Angeles Times reporting that California Treasurer Bill Lockyer was seeking a legal opinion from California Attorney General Kamala Harris to determine if some local education officials and the municipal finance firms they employ are violating state law by campaigning to get school construction bonds passed. Lockyer said that the opinion was necessary because some arrangements between school districts and bonding firms “raise substantive questions” about whether the officials are using public money to conduct such political campaigns, an action banned by law.] 

Sua Sponte: NSBA joins the State and Local Legal Center’s amicus brief urging the U.S. Supreme Court to uphold the requirement of a notice and comment process for significant changes to agency statements interpreting regulations

On October 16, 2014, the State and Local Legal Center (SLLC) filed an amicus brief on the merits with the U.S. Supreme Court in Perez v. Mortgage Bankers Association, Docket Nos. 13-1041/13-1052. The National School Boards Association (NSBA), along with several other organizations that advocate on behalf of public sector employers, have signed on to SLLC’s brief.

At issue in Perez is whether significant changes that are made definitive interpretive rules by federal agencies should be subject to notice and comment requirements. SLLC’s brief urges the Court to affirm the U.S. Court of Appeals for the District of Columbia Circuit’s holding that significant changes to definitive interpretive rules are subject to notice and comment requirements.

The brief makes two main arguments. First, notice and comment procedures are necessary before making significant changes to definitive agency interpretations of regulations in order to preserve the Administrative Procedures Act’s (APA) carefully considered statutory scheme and the separation of powers. Second, a notice and comment procedure is necessary to safeguard state and local reliance interests and to preserve the appropriate balance between state and federal power.

The legal dispute in Perez  is the result of  the U.S. Department of Labor (DOL)  deciding in 2001 and again in 2010 to change its interpretation of a regulation under the Fair Labor Standards Act (FLSA) that exempts administrative employees from coverage under the law’s minimum-wage and overtime protections. DOL took these actions without providing a notice and comment period. The District of Columbia Circuit held that the DOL had acted improperly under the APA. The case was then granted review by the Supreme Court.

The brief was written by Lisa E. Soronen of SLLC; James C. Ho and Ashley E. Johnson of Gibson, Dunn and Crutcher LLP, Dallas, Texas; and Kirsten R. Galler and Lauren M. Blas of Gibson, Dunn and Crutcher LLP, Los Angeles, California. Ms. Soronen was formerly a senior staff attorney at the NSBA.

In NSBA’s School Board News article reporting the filing of the brief, NSBA Executive Director Thomas J. Gentzel said, “Rule-making should be orderly and fair.” He continued, “Invoking new legal requirements not expected at the time federal funds were accepted is capricious, imposing undue burdens on school boards and other local governmental entities.”

NSBA Associate Executive Director and General Counsel Francisco M. Negrón, Jr. emphasized the importance of NSBA’s involvement in the case, saying, “Unchecked rulemaking is a serious threat to local authority.” He also outlined the importance of the case to school boards: “Requiring a notice-and-comment period for significant changes to interpretive rules is essential to preventing federal agencies from exerting their power over matters that should be determined by local school boards.”

Fear of Ebola exposure causes schools in Ohio and Texas to shut down

According to a  New York Times report in telegram.com, school districts in Ohio and Texas have closed schools after learning that two students traveled on the Cleveland-to-Dallas flight with Amber Joy Vinson, a nurse infected with Ebola, and that an employee may have later flown on the same plane. In Texas, Belton Independent School District (BISD) Superintendent Susan Kincannon said that a student at Sparta Elementary School and a student at North Belton Middle School were on the flight.

Kincannon issued a statement reporting that officials had decided to shut the two schools plus a third, the Belton Early Childhood School, so that they could thoroughly clean and disinfect the schools and the buses that transported students this week. According to the statement, even though state and local health officials had cleared the children to return to school, their parents decided to keep them home for 21 days, the maximum incubation period of the virus.

BISD officials had previously assured parents that the risk of exposure to passengers was low and that there were no plans to shut down schools. However, after the Centers for Disease Control posted a message on its website saying it was “re-evaluating the health risk to some passengers” on the flight, BISD decided to shut the schools to clean them. It was not clear what had caused that re-evaluation of the risk.

In Solon, Ohio, two schools were closed  because a school district employee returned to Ohio “on a different flight, but perhaps the same aircraft, as the Texas nurse with Ebola,” the district said in an email to parents.

Source: telegram.com, 10/16/14, By Manny Fernandez (The New York Times)

[Editor's Note: Meanwhile on October 15, 2014, Jessica Williams for The Times-Picayune reported that the Louisiana State Board of Elementary and Secondary Education, with almost no discussion, adopted new school safeguards against the Ebola virus and other communicable diseases. 

Under these new rules:

             If a student diagnosed with Ebola or another communicable disease has been quarantined, educators must send missed homework and classroom assignments to the home, hospital, or shelter to which the student has been assigned.

         Those students' absences must be excused.

     Administrators may close schools if a health crisis arises. They may also keep a student or a staff member home.

   State education officials must inform all school governing authorities about communicable diseases such as Ebola.]




Sua Sponte: NSBA urges Ninth Circuit not to abandon the “adversely affects educational performance” standard in determining if a student has a qualifying disability for services under the IDEA

On October 14, 2014, the National School Boards Association (NSBA), along with the state school boards associations for Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon and Washington State, and the Washington State School Directors’ Association, filed an amicus curiae brief with the U.S. Court of Appeals for the Ninth Circuit in D.A. v. Meridian Joint School District No. 2. The case originated in the U.S. District Court for the District of Idaho and is presently on appeal to the Ninth Circuit. At issue in the appeal is whether a diagnosis of autism itself is sufficient to qualify a student for special education services under the Individual with Disabilities Education Act (IDEA). The district court ruled in favor of the school district, holding that such a diagnosis alone would not make a student eligible under the IDEA for special education services.

NSBA and its amici, in support of the school district, make three main arguments in their brief. First, the diagnosis of autism itself does not entitle a student to identification as a student with a disability under the IDEA. Second, while grades alone are not a determining factor resulting in ineligibility, a student’s overall academic success in a general education setting precludes a finding of eligibility. Finally, eliminating the “adversely affects educational performance” limitation would allow any student with a disability enumerated in the IDEA to access special education and related services.

The brief was written by Kathleen S. Mehfoud of Reed Smith LLP, Richmond, Virginia.

In NSBA’s press release announcing the filing of the brief, NSBA Executive Director Thomas J. Gentzel said, “Grades and academic performance are important guiding principles in determining IDEA eligibility.” He added, “When we misclassify children, we needlessly label them and risk taking valuable resources away from children who truly need specialized services.”

NSBA Associate Executive Director and General Counsel Francisco M. Negrón, Jr., commenting on the brief, said:

“The school district’s responsibility under the IDEA is not to cure or remediate all effects of a child’s disability. Given that the student in this case is academically successful, it may be more appropriate to address the effects of Autism Spectrum Disorder through accommodations provided under Section 504 of the Rehabilitation Act of 1973 than through special education and related services under the IDEA.”

Sayreville conducting investigation after seven members of the football team criminally charged

The Wall Street Journal reports that seven members of the War Memorial High School (WMHS) football team were criminally charged by local prosecutors and subsequently suspended from school in connection with several alleged hazing incidents. The seven players have been charged by the Middlesex County prosecutor’s office with aggravated criminal sexual contact with younger players, among other charges.

School district officials are preparing to launch their own investigation into the matter, which may result in additional disciplinary sanctions for the students and possible disciplinary actions against staff, including head coach George Najjar.

School board President Kevin Ciak said that district policies prevent him for discussing Mr. Najjar or his 20-year tenure at the school. “When you look at the time he’s been here, that says something,” Mr. Ciak said. “I can’t say anything more than that.”

Members of his coaching staff declined to discuss Mr. Najjar, citing the ongoing investigation. Several former players said Mr. Najjar and other coaches rarely entered the locker room and put trusted varsity-team captains in charge of monitoring the room. None said that they ever saw any inappropriate hazing.

Najjar oversees a football program that has had the remainder of its season canceled. Mr. Ciak, the school board president, said that after an initial outcry, the community has been largely supportive of the district’s decision to scrub the season. “This is not consistent with our community and our program,” he said. “And Sayreville as a community is much larger than football.”

Source: The Wall Street Journal, 10/13/14, By Sharon Terlep and Josh Dawsey

[Editor's Note: In October 2014, Legal Clips summarized a Washington Post article reporting that Sayreville, New Jersey’s schools Superintendent Richard Labbe had announced that War Memorial High School would be cancelling the remainder of the football season following allegations of hazing.] 

Wyoming Attorney General’s opinion says students may not opt out of state assessments

The Casper Star Tribune reports that the Wyoming Attorney General’s (AG) office has issued an opinion that indicates that students may not opt out of state assessments. “The rules of the State Board of Education require districts to assess all eligible students,” the opinion reads. “This requirement is within the board’s statutory authority. Accordingly, districts must assess all eligible students, and students may not opt out of assessment.”

The AG’s office rendered its opinion after Richard Crandall, former director of the Wyoming Department of Education, sought the office’s legal advice. Some school districts had reported that parents were trying to opt their students out of state and local assessments. The AG said that the opinion is based on the fact that the state Board of Education is required to develop a system to provide valid information about every district and was asked to build an accountability system.

State Superintendent of Public Instruction Cindy Hill said that she is circulating the legal opinion so that parents are informed. The opinion leaves out considerations about parents’ rights, she said. “There are two principles that are absent: Parents have rights, and parents know what’s best for their kids,” Hill said.

Officials at Wyoming Citizens Opposing Common Core said that parents have several reasons to want to opt out of tests. “The fact that penalties are not outlined in the statute begs that the opinion be challenged either by civil disobedience or lawsuit,” group member Cynthia McKee said in an email.

Source: Casper Star Tribune, 10/10/14, By Aerin Curtis

[Editor's Note: The AG's opinion concludes that "the state Board of Education is authorized to establish the statewide accountability system pursuant to state law including the Wyoming Accountability in Education Act."]

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