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Michigan Senate approves bill that would strip families of welfare benefits if child is chronically truant

The Michigan Senate, in a 26-12 vote, approved legislation that would allow the state to cut off Family Independence Program assistance if a child was chronically truant, says mlive. Under the bill, dubbed the “parental responsibility act,” if the child is younger than 16, the whole family could lose cash benefits. If the child is 16 or older, they would be removed from the family group, which could continue to receive some assistance. “The whole goal here is to make sure that children are in school, because they will succeed and they will have the chance to move ahead in their life if they are in school,” said state Sen. Judy Emmons.

The Michigan Department of Human Services  has already implemented a similar truancy program. In fiscal year 2014, 189 families or individuals were sanctioned for missing school, according to the non-partisan Senate Fiscal Agency. The legislation, which already passed the House in an earlier form, now returns to the lower chamber for a final vote before heading to the desk of Gov. Rick Snyder.

The Michigan League for Public Policy (MLPP), noting that more than half a million Michigan children currently live in poverty, is already urging the governor to veto the bill. “The goal of increasing school attendance is laudable; we all want students in school, learning and getting the education needed to end the cycle of poverty,” MLPP President Gilda Jacobs said. “But this bill won’t get kids to school. However, it is certain to push more kids deeper into poverty, making it even more difficult to get to school.”

Source: mlive, 5/26/15, Jonathan Oosting

[Editor’s Note: In June 2013, Legal Clips summarized an Associated Press article in the San Francisco Chronicle reporting that several organizations had filed a complaint with the U.S. Department of Justice (DOJ) claiming Dallas-area public schools are too harsh in their truancy rules, subjecting students to cruel and unusual punishment by handcuffing them in class, sending them to special adult courts and assessing stiff fines for skipping school.  The complaint, filed by Texas Appleseed, Disability Rights of Texas, and the National Center for Youth Law with DOJ’s Civil Rights Division, charges that the Dallas Independent School District (DISD) and the nearby districts in Garland, Mesquite, and Richardson are using “inconsistent and inflexible” attendance polices that violate the civil rights of students with disabilities and limited English proficiency.  Dallas ISD is further alleged to have violated the civil rights of pregnant students in prosecuting truancy.]

Class action suit charges aerospace firm dumped toxic chemicals in ground next to California elementary school

According to ABC News 10, a class action lawsuit has been filed against Ametek Aerospace & Defense (AAD) on behalf of parents, students and teachers at Magnolia Elementary School (MES). Attorney John Fiske of Gomez Trial Attorneys, who are representing the plaintiffs, said, “They dumped up to 7,000 gallons of chlorinated solvent waste into the ground a month,” He added, “That waste has created the largest TCE plume underground in the state of California.”

AAD is located next door to MES. The complaint alleges the company started dumping chemicals into the ground in the 1960s. “Back in 1963 a company called Ametek used to own this facility and was dumping chlorinated solvents into a sump into a ground. A sump is a hole in the ground,” said Fiske. The lawsuit claims the sump was lined with cedar planks that did little to stop the chemicals from getting into the ground.

Some 50 years later, parents say their children are getting sick because of the chemicals AAD dumped. Fiske said the company dumped chemicals like TCE, PCE and DCE into the ground until the 80’s. The hazardous and toxic chemicals are linked to cancer, liver and kidney problems.

News 10 says the Claifoirnia Department of Toxic Substance Control (CDTSC) has been collecting soil, gas and indoor air samples four times a year since 2008.  News 10 alleges CDTSC told the news station that the site does not pose an immediate threat to students based on current data, but News 10 found reports from the same agency showing cancer risk levels higher than acceptable in March 2015.

The San Diego Regional Water Quality Board ordered AAD to study and clean up the site in 2009. AAD was fined $2 million dollars when they didn’t comply. “We think the water board and the DTSC has been trying to get Ametek to comply,” said Fiske.

While the dumping stopped in the 1980s, the chemicals didn’t just go away. “Chemicals are degrading and the vapor is intruding from the ground and into the classrooms,” said Fiske

The lawsuit would require Ametek to pay for medical monitoring of students in the school. “So they can monitor their health to see if their health has been affected by these chemicals,” said Fiske.

Source: ABC News 10, 5/26/15, By Cristin Severance

[Editor’s Note: In December 2014,  Legal Clips summarized an article in the Detroit Free Press reporting that Theresa Ely, a custodian with Dearborn Heights Schools District No. 7 (DHSD7), had filed suit in federal court against DHSD7. The lawsuit alleges that the school district has put the health of students and staff at two schools at risk by falsifying a report and covering up past asbestos contamination. DHSD7 officials acknowledge that they made a mistake by using electric sanders, which contained asbestos, on vinyl tiles, but insisted this week there is no evidence asbestos was released into the air where it could damage human health. All parties agree that there is no current asbestos problem at either of the schools.]

 

Teacher’s lawsuit claims Colorado district is endorsing Christian activities at high school

Robert Basevitz, a teacher at Florence High School (FHS), has filed suit in federal court against Fremont Re-2 School District (FR2SD), reports The Denver Post, alleging the high school “operates largely to promote the evangelical Christian ideals” of a local church that operates in the school. The Cowboy Church at Crossroads (CCC) rents cafeteria space at Florence High for Sunday morning services, hosts prayer every morning before school around the flagpole and hosts Bible study and pizza during lunch in a school classroom.

Randy Pfaff, the pastor of CCC, said, “I don’t believe the Constitution was meant to keep God out of the schools. That’s absolutely absurd.” He added, “This nation was founded on Christianity.”

Basevitz’s attorney, Paul Maxon, said the school’s involvement with the church created an environment where Basevitz, who is Jewish, felt excluded. According to the lawsuit, students have singled him out for being Jewish.  “Public institutions are supposed to be equally welcoming and accepting of everybody,” Maxon said, “but Mr. Basevitz didn’t find a welcoming atmosphere.”

Pfaff insists no student or staff member is forced to participate in activities, saying it is all voluntary. However, Maxon contends school officials cross the line to endorsing religion when they make announcements over the school intercom system and distribute literature that includes Scripture and Bibles. “This is not one or two isolated incidents. On a single day, there were no less than five school-sponsored religious events,” he said. “That is a pervasive involvement with religion, which is illegal.”

Basevitz raised concerns to his school and district officials before preparing to file suit. But after filing a formal complaint with the district, officials transferred him to work at an elementary school. The lawsuit alleges that Superintendent FR2SD Rhonda Vendetti “has publicly supported Pastor Pfaff and [FHS] Principal (Brian) Schipper’s religious activities despite complaints of their illegality.” Vendetti and Schipper are also listed as defendants in the suit.

Schipper insists that the school is not promoting any religion. “We’re a school. We educate kids,” said Schipper. “We educate kids in every academic area and social area and life area. Religion’s not in our curriculum anywhere.”

The lawsuit requests the school and officials stop religious activities, including sponsoring Christian prayer; sponsoring and housing CCC; distributing Bibles to students; presenting Scripture to students and staff; hosting school events at Christian locations; and hosting evangelical Christian groups. The suit also seeks “compensatory or nominal damages,” attorneys fees and litigation related costs as well as “any other relief as this Court deems just and proper.”

Source: The Denver Post, 5/26/15, By Yesenia Robles

[Editor’s Note: Basevitz’s legal complaint alleges: “The Defendants’ actions demonstrate not only the Defendants’ endorsement of religious beliefs over non-religious, but the endorsement of Christianity over other faiths and other religious beliefs.”

In August 2014, Legal Clips summarized an article in The Blaze reporting that the American Humanist Association’s (AHA) Appignani Humanist Legal Center, a secular legal firm, had sent a letter to Hall County School District (HCSD) officials warning that AHA would file a lawsuit if football coaches at Chestatee High School (CHS) do not end their practice of sharing prayer and Bible scriptures with players and placing those prayers and scriptures on official team stationary.]

Florida district plans legal challenge to block charter school chain from opening new school in district

According to the Sun Sentinel, Palm Beach County School District (PBCSD) plans to file suit challenging the Florida Board of Education’s (FBE) ruling overturning the Palm Beach School Board’s denial of Charter Schools USA’s (CSUSA) application to open a new charter school in Palm Beach County. After PBCSD denied CSUSA’s application to open the new school, CSUSA successfully appealed to the state, which said the school board did not have good cause to deny the application.

PBCSD contends the proposed school offers nothing new and would siphon as much as $7.3 million from district schools in five years. “I don’t think it’s wise use of taxpayers’ dollars for us to be offering a program and the charter to be offering the same program,” said PBCSD Superintendent Wayne Gent. “They were supposed to be schools of innovation and not just of duplication.” While the state’s charter-friendly laws have prompted a rash of problem schools in recent years, CSUSA operates 48 charter schools in the state of which 18 are A rated.

Rod Jurado, a representative of the proposed school, said the district’s concern is about increased competition. In the last five years, the number of students enrolled in Palm Beach County charter schools doubled to about 19,000. He added, “In the case of Palm Beach, parents are choosing charters at what the school district deems an alarming rate and instead of looking inward to decide if change is needed, they are trying to take focus off what should be concerning to them — the reasons parents are leaving the district in droves.”

Officials with the Florida Department of Education said it’s not the first time a district has taken a charter school to court, but said they didn’t keep a record of the few which had done so — or why. And they did not know whether the lawsuits had succeeded. Local districts have long complained about being unable to prevent bad operators from opening schools.

Jim Pegg, who oversees charter schools for PBCSD, says the board’s move was a catalyst to tighten local rules for charter schools looking to operate in the county. The district is proposing changes that would require schools to prove they are innovative, allow background checks on applicants and require sufficient notice of closure, among other provisions.

Source: Sun Sentinel, 5/22/15, By Karen Yi

[Editor’s Note: In May 2015, Legal Clips summarized an article in Courthouse News Service reporting that the Board of Education of Woodland Community Consolidated School District 50, and Board of Education of Fremont School District 79 have filed suit against the Illinois State Board of Education (ISBE) and Board of Directors of Prairie Crossing Charter School in Cook County Court, according to Courthouse News Service, alleging that ISBE plans to divert state funding away from public schools to charter schools.] 

 

 

Disabilities advocacy group settles decade old class action suit with New York City Department of Education over disciplining of students with disabilities

Advocates for Children (AC) has settled a class action lawsuit filed more than a decade ago against the New York City Department of Education (NYCDE) on behalf of students with disabilities who were disciplined in city schools, says Capital New York. The suit, filed in 2002 during the Bloomberg administration, alleged special needs students were denied legal protections when they were suspended or excluded from school for behavioral reasons.

According AC, the basis of the suit was a series of suspensions predating the Bloomberg administration. There was significant data supporting the claim students with a range of disabilities are suspended at higher rates than their peers.

The students involved in the suit, who range from kindergarten to age 21, will not be compensated. Instead, the settlement requires the NYCDE to change its policies and procedures to better protect students with disabilities who are disciplined in school.

Under terms of the settlement, NYCDE must now adhere to rules requiring it to give students proper notice of suspension, to hold suspension hearings and to conduct reviews to make sure students are not being suspended because of their disabilities. It has also created “alternate learning centers” for middle and high school students who have been suspended.

NYCDE spokeswoman Devora Kaye said, “The settlement provides resources and support to schools in addressing behavioral and disciplinary issues for students with disabilities, and, for students who are suspended, ensuring support during the period of suspension and the transition back to their schools.”

Source: Capital New York, 5/20/15, By Eliza Sapiro

[Editor’s Note: In April 2015, Legal Clips summarized an article in he Antioch Herald reporting that the Antioch Unified School District’s (AUSD) board had approved, in a 4-1 vote, an “Interim Settlement Agreement” with the East County Branch of the NAACP that will address the civil rights organization’s allegations of race and disability based discrimination against students in AUSD schools. The agreement is in response to allegations of violations of parts of the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Individuals with Disabilities Education Act (IDEA).]

Parent’s suit against West Virginia district claims teaching of evolution violates his child’s First Amendment religious freedom rights

The Charleston Daily Mail reports that Kenneth Smith, acting as his own attorney, has filed suit in federal court against the Jefferson County Board of Education, state Superintendent Michael Martirano, National Institute of Health director Francis Collins, U.S. Secretary of Education Arne Duncan and the U.S. Department of Education. The suit contends that the teaching of evolution constitutes the teaching of a religious belief. Smith alleges education officials are violating the U.S. Constitution because they are “propagating” a religious faith in public schools.

The suit states, “Their actions during the 2014-2015 school year affects my child’s future directly through the state grading system to enter college and the ability to earn economic security and a good job in her chosen veterinarian medical field of work, by being taught a faith base (evolutionary ideology) that just doesn’t exist and has no math to back it.” It also claims: “While denying the Plaintiff’s accurate scientific mathematical system of genetic variations that proves evolution is a religion, it will benefit our government economically and efficiently increase our judicial and law enforcement departments in many ways.”

Source: Charleston Daily Mail, 5/21/15, By Andrea Lannom

[Editor’s Note: Smith’s legal complaint is extremely modest in length (four pages) compared to the typical legal complaint filed in federal civil rights suits. The complaint alleges violation of the First and Fourteenth Amendments of the U.S. Constitution. It also cites Title VII of the Civil Rights Act of 1964 as a basis for the suit, even though Title VII is usually associated with employment discrimination suits. In November 2014, Legal Clips summarized a news item from KXTV News 10 reporting that Pacific Justice Institute (PJI), a legal advocacy group that defends individuals’ religious liberties, had filed suit against Loomis Union School District (LUSD) on behalf of a student at Loomis Basin Charter School who was prohibited from passing out flyers questioning the teaching of evolution in public schools to classmates during lunch. The flyers came from Genesis Apologetics, which offers seminars to parents and students on “Biblical Creation.” ]

Two Illinois school districts’ suit alleges that state board of education plans to divert more funding from public schools to charter schools

The Board of Education of Woodland Community Consolidated School District 50, and Board of Education of Fremont School District 79 have filed suit against the Illinois State Board of Education (ISBE) and Board of Directors of Prairie Crossing Charter School in Cook County Court, according to Courthouse News Service, alleging that ISBE plans to divert state funding away from public schools to charter schools. The suit claims that ISBE’s decision to authorize the creation and funding of a charter school, Prairie Crossing, to serve children in the Woodland and Fremont school districts “was the first time in the history of Illinois that a charter school was created by a state agency over the objection of a local board of education.” According to the suit, the charter school is funded by withholding a per capita tuition charge from the local school district where the student resides. Last year, 84% of Prairie Crossing’s students hailed from Woodland, and 16% resided in Fremont’s district boundaries. However in 2014, the state informed the school districts that it will change its per capita tuition formula used to divert funds from public schools to the charter school. The legal complaint states:

 Specifically, ISBE informed Woodland and Fremont that it would no longer consider students attending Prairie Crossing as part of determining the ADA [average daily attendance] divisor for each of Woodland and Fremont. The effect of ISBE’s change in practice is such that the ADA divisor for both Woodland and Fremont would be decreased, thus having the net effect of increasing the total per capita tuition charged for Woodland and Fremont.

The complaint also claims this change will allegedly result in a “larger diversion of funds from Woodland and Fremont to Prairie Crossing.” In addition, it alleges that the state also told the school districts that it will apply the change retroactively to recalculate funds owed to Prairie Crossing for 2013 and 2014. The school districts seek a court order that all students who reside in Fremont or Woodland should be counted for purposes of calculating a per capita tuition figure, and a declaration that ISBE lacks the authority to retroactively adjust the districts’ claims for previous years.   Source: Courthouse News Service, 5/18/15, By Jack Bouboushan

[Editor’s Note: In December 2014, Legal Clips summarized an article in the New Orleans City Business reporting that a Louisiana district court rejected a motion by the Louisiana Association of Educators (LAE) seeking a preliminary injunction barring the state from funding 33 charter schools that the Louisiana Board of Education (LBOE) authorized. The court concluded that LAE failed to show it would be irreparably harmed because money from the public school financing formula was going to the charter schools.]

Federal district court permanently enjoins South Carolina district’s past practice of school-sponsored prayer, but finds current policy of permitting student initiated and lead prayer at school events is constitutional

American Humanist Ass’n v. South Carolina Dep’t of Educ., No. 13-2471 (D.S.C. May 18, 2015)

Abstract: A federal district court in South Carolina has ruled that a school district’s prior policy through 2013 of official and school-sponsor student prayers at school events, such as graduation, violated the First Amendment’s Establishment Clause. As a result, it granted the plaintiffs’ motion to permanently enjoin the school district from officially promoting prayers at school sponsored events. However, the court concluded that the school district’s revised policy of allowing student led and initiated prayer at school events absent school district supervision and control did not violate the Establishment Clause. Applying the three-prong test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), it determined that the revised policy passed constitutional muster. The court pointed out that the speech being sanctioned by the revised policy is private speech, which even if it endorses religion is protected by the First Amendment’s free speech and free exercise of religion clauses.

Facts/Issues: A student, identified as Jill Doe, attended Mountain View Elementary School (MVES) during the 2012-13 school year. Jill’s parents, John and Joe Doe are avowed humanists and non-theists and members of the American Humanist Association (AHA). Since 1951, Christian prayers have been included at graduation ceremonies for elementary school children in Greenville County School District (GCSD). All prayers have been delivered by school-selected fifth graders, normally age 10 or 11. Two prayers are included in each ceremony. The first is offered after opening remarks by the principal and the second is offered at the ceremony’s conclusion.  It does not appear that any have been non-Christian prayers.

It has been GCSD’s practice to have school officials, typically fifth grade teachers, select the students to deliver the prayers. Students are selected based in part on their “ability to speak in front of a group.” It has also been the school district’s practice to have school officials review and approve the content of the prayers prior to their delivery. Each prayer is designated as “Prayer” on the official graduation programs, which are distributed to attendees, such as the Does. GCSD conducted its annual MVES graduation and included two Christian prayers as part of the ceremony. Jill participated in the event, and her parents attended.

Other schools in GCSD, including elementary schools, have a policy and practice of including prayers in graduation ceremonies. It is undisputed that in the vast majority of these schools, the prayer-givers are selected by the school, as with MVES, often based on ability to publicly speak, class rank, or class office. It is further undisputed that in most of these schools, the “prayer” (or “invocation” and “benediction”) has been listed on the official graduation program handed out to attendees and that, in many of these programs, the audience and graduates are expressly instructed to stand for the prayer. In several schools, men are even required to remove their caps.

AHA and the Does filed suit in federal district court against GCSD to vindicate their rights under the Establishment Clause, seeking declaratory and injunctive relief and damages pursuant to § 1983. The plaintiffs challenged the constitutionality of the defendants’ long-held practice of including prayers at public school graduation ceremonies.

GCSD revised its policy on prayer and religious content at graduation following the MVES graduation ceremony. The revised policy states:

As it pertains to the use of prayer by students, the District is committed to not endorsing the use of such prayer by students, and therefore, any prayer given by a student at a school-sponsored event, including an awards program for Mountain View Elementary, will be under different circumstances than the May 30, 2013 program . . . . With regard to a student delivering a prayer or providing a religious message during a school sponsored event, the District will not prohibit this practice as long as the prayer or message is student led and initiated and does not create a disturbance to the event. Prohibiting such independent student speech would go beyond showing neutrality toward religion but instead demonstrate an impermissible hostility toward religion. If a student is selected to speak based upon genuinely neutral criteria such as class rank or academic merit, that student should have the same ability to decide to deliver a religious message or prayer as another student has the ability to decide to speak about an inspirational secular book or role model.

Ruling/Rationale: The district court granted the plaintiffs’ motion for a permanent injunction in regard to the policy and practice in place through 2013. It stated: “To the extent the plaintiffs seek to enjoin the kind of official and school-sponsored student prayers, which were held as a formal part of graduations in the school district in 2013 and prior, the injunction is granted.” The court noted that GCSD had conceded “that such formal and sponsored prayers are unconstitutional and should no longer be allowed.”

The district court then took up the issue of whether the revised policy avoided the Establishment Clause pitfalls that the prior policy/practice had fallen victim to. It warned that even a facially neutral policy could still have the practical effect encouraging religious speech in the form of prayer. According to the court, “[I]t is conceivable that the cultural residue of prior practices might continue to color and confuse the application and invitation of, even now, constitutionally neutral practices.”

However, the district court found that because GCSD had conceded the impropriety of its prior practice, the plaintiffs were robbed of the bulk of their legal precedent and factual history. It pointed out that GCSD’s new position involves no selection process, or election, to preemptively challenge or question. It also found the plaintiffs lacked any “evidentiary basis to expect that students speaking at graduation will enter into prayer or speak religiously in a way that implies school sponsorship.” It stressed that the legal precedent relied on by the plaintiffs all involved active government participation, noting that in those cases whatever neutrality had been attempted on paper had been plainly undermined in application, whereas GCSD’s revised policy was “both neutral and passive.”

Citing Peck v. Upshur Cnty. Bd. of Educ., 155 F.3d 274 (4th Cir. 1998), the district court emphasized, “[T]he Supreme Court has never held that the mere fact that private religious speech occurs during school hours is sufficient to render it state speech.” It rejected the plaintiffs’ argument that the fact that three schools in GCSD had included prayer or religiously themed speech in their ceremonies were “representative of the kind of ratio that suggests unconstitutionality in practice.” It also pointed out that “these occurrences are incident to the prior policy, whose application is enjoined by agreement and judicial order.”

In order to determine if the revised policy steers a course of neutrality, that neither encourages nor discourages religion, the district court applied the three-prong Lemon test which seeks to determine: (1) if the defendant had a secular purpose for adopting its present position on prayer at District graduations; (2) if the position’s primary effect is one that neither advances nor inhibits religion; and (3) if the position does not result in an excessive entanglement of government with religion.

In regard to the first prong the court concluded: “[GCSD’s] position on religious content at graduations straddles this precarious constitutional fence with near perfect symmetry. It does not endorse and yet stops just nigh of disavowal, the step, further, the plaintiffs beg.” As to the primary effect prong, it found there was no evidence the revised policy convenes a message of endorsement. The court observed, “The new position, however, is so finely weighted, in balance, that literally the only additional protection would be complete proscription of all religious comment, which is impermissible as stated.” Finally, it found the policy did not lead to entanglement with religion. It stressed that under the policy schools were required to avoid involvement in any decision of any individual student to include any religious point of view.

According to the district court, GCSD’s “position is entirely consistent with the Supreme Court’s and Fourth Circuit’s declarations that: ‘There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.’” It found that the revised policy successfully navigated the narrow waters of the First Amendment without running aground on the shoals of the Establishment, Free Exercise or Free Speech clauses.

The district court applauded GCSD’s revised policy, in conclusion saying:

The new practice of the defendant is constitutional. But, plaintiffs are affirmed. Not in their full request for legal remedy but in their aspiration for equal liberty. For too long school districts have cleverly resisted, with every manner of contortion, the force of Establishment jurisprudence to justifiably eliminate all state-sponsored rite. At least one has gotten it exactly right.

American Humanist Ass’n v. South Carolina Dep’t of Educ., No. 13-2471 (D.S.C. May 18, 2015)

[Editor’s Note: In February 2015, Legal Clips summarized an article in the Atlanta Journal-Constitution reporting that the parents of two students at Swainsboro Primary School (SPS) had filed suit against Emanuel County (GA) school system, alleging that school officials are allowing teachers to lead daily prayers in the classroom. The parents, who are members of Freedom From Religion Foundation (FFRF), allege that their children are being proselytized and coerced by their teachers to participate in the prayers.

In November 2014, Legal Clips summarized an article in the Gazette reporting Alliance Defending Freedom (ADF) had filed a federal lawsuit against  Academy School District 20 (ASD20) on behalf of Chase Windebank, a student at Pine Creek High School (PCHS), alleging that PCHS officials are violating the constitutionally guaranteed right to engage in religious speech. Windebank claims that he was told by school officials that he and other students may no longer get together to pray and discuss religious topics during an open period in the school day known as “seminar.”] 

OCR reports a surge in number of federal civil rights complaints involving students with disabilities

According to Education Week, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a report in April 2015, which found that nearly half of all complaints to the civil rights office continue to involve students with disabilities, with sex- and race-discrimination complaints making up a lesser part of the caseload. Assistant Secretary of Education Catherine E. Lhamon said the record 10,000 complaints in all categories of discrimination filed in each of the fiscal years 2013 and 2014 send a clear message that her office is aggressively enforcing civil rights laws designed to end discrimination on the basis of race, color, national origin, sex, disability, and age in all programs or activities that receive federal financial assistance.

However, some organizations representing school districts and administrators, while maintaining that they are committed to equity in education, complain that in some cases the federal government is overreaching its authority, underfunding services, and failing to consult with education leaders on the best way to resolve concerns.

In fiscal 2014, OCR began posting resolution agreements on its website and releasing lists of institutions under investigation. In the spring of 2014, the office released the first universal civil rights data collection since 2000, which highlighted issues, such as higher rates of suspension, arrests, use of seclusion, involuntary confinement, and physical restraints among students with disabilities.

School districts are concerned with how to provide an adequate response. Francisco M. Negron, the general counsel for the National School Boards Association (NSBA), said his organization takes issue with OCR publishing some, but not all, case resolutions on its website and questions the value of naming schools under investigation before a matter is fully resolved. NSBA, which represents 14,000 school districts, is also concerned about OCR taking “expansive approaches to the law” without consulting policymakers on school boards about the implications, which can result in unfunded mandates, said Mr. Negron. He added that the timing of the OCR report’s release is significant because it coincides with the office asking for a sizable increase in its budget for fiscal 2016. OCR is requesting an increase of $30.6 million, in fiscal 2016, over the previous year to add 200 full-time employees. The recent report notes that since 1980, staffing levels at OCR have been reduced by about 50 percent.

The dominance of disability-related complaints at OCR correlates with court cases for students with individualized education programs under the IDEA, which has been a leading source of legal activity in recent decades, according to Perry A. Zirkel, professor of education and law at Lehigh University in Bethlehem, Pa. Also, there has been a rise in students with 504 plans and students pursuing postsecondary education because of the expanded eligibility standards under the 2008 amendments to the ADA.

Source: Education Week, 5/19/15, By Caralee J. Adams

[Editor’s Note: In March 2015, Legal Clips published a Sua Sponte item reporting that the National School Boards Association’s (NSBA) General Counsel Francisco M. Negrón, Jr. has sent a letter to Catherine E. Lhamon, Assistant Secretary for the Office for Civil Rights (OCR) U.S. Department of Education; Vanita Gupta, Acting Assistant Attorney General Civil Rights Division U. S. Department of Justice (DOJ); and Michael K. Yudin, Acting Assistant Secretary Office of Special Education and Rehabilitative Services (OSERS) U.S. Department of Education, responding to guidance issued in November 2014 by OCR in the form of a “Dear Colleague Letter” (DCL) on the subject of the Americans with Disabilities Act’s (ADA) Title II “effective communication” regulation’s interplay with the Individual with Education Act’s (IDEA) free and appropriate public education (FAPE) requirement. 

NSBA’s letter raised the concern “that absent clarification, the Departments’ joint position that public schools across the country must now apply both an Individuals with Disabilities Education Act (IDEA) analysis and an effective communication analysis under the Americans with Disabilities Act (ADA) in determining how to meet the communication needs of an IDEA-eligible student with a hearing, vision, or speech disability: “1) is a misplaced statement of the law that threatens to dismantle the IEP process, which is the appropriate and congressionally mandated process for educating students with disabilities; 2) will potentially disrupt necessary activities, services and programs for students; and 3)will burden schools both administratively and financially.”

In May 2015, Legal Clips published a Sua Sponte item reporting that OCR had 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 year 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.” ]

California district facing class action suit asserting that “complex trauma” constitutes a disability under federal law

The Los Angeles Times reports that Public Counsel, a Los Angeles-based pro bono law firm, along with the law firm of Irell & Manella LLP, has filed a class action lawsuit in federal court against Compton Unified School District (CUSD) alleging that the school district is failing to provide an appropriate education to students who have suffered from violence and other trauma. The lawsuit will test whether “complex trauma” qualifies as a disability under federal law. If it does qualify as a disability, school districts would be required to provide special academic and mental health services for those students.

If successful, the class action suit could vastly expand support for scores of struggling students, especially in low-income, high-crime minority neighborhoods. According to Marleen Wong, an associate dean and clinical professor at the USC School of Social Work, decades of research have found that children who have suffered serious trauma are far more likely to repeat a grade, be suspended from school and have severe attendance and behavioral problems. “If you really want to do something about the achievement gap, childhood trauma is the place to start,” said Mark Rosenbaum, an attorney with Public Counsel.

CUSD Superintendent Darin Brawley declined to specifically comment on the suit because he had not yet seen the legal complaint. However, Brawley said, “We take very seriously all allegations regarding the quality of education of our students. The district is committed to providing a quality education to all students and will continue to do so.” The lawsuit, whose plaintiffs also include three Compton teachers, details the cases of several students.

Rosenbaum said the cost of added services to school districts would likely be more than offset by the extra state dollars to campuses if fewer students were truant, suspended or dropped out of school. Wong pointed out that not one four-year teacher training program in California currently includes a class on how to recognize and deal with trauma in students. “This is really the civil-rights issue of our time for our children and their futures,” she said.

Source: Los Angeles Times, 5/18/15, By Teresa Watanabe

[Editor’s Note: Public Counsel’s legal complaint contains five counts: (1) Violation of Section 504 of the Rehabilitation Act; (2) Violation of U.S. Department of Education Regulations regarding “Location and Notification,” 34 C.F.R. § 104.32; (3) Violation of U.S. Department of Education Regulations regarding “Procedural Safeguards,” 34 C.F.R. § 104.36; (4) Violation of the U.S. Department of Education Regulations regarding “Free Appropriate Public Education,” 34 C.F.R. § 104.33 ; and (5) Violation of the Americans with Disabilities Act of 1990.

Public Counsel’s press release, announcing filing of the suit, states:

In a landmark, first-of-its kind case, students and teachers of a California school district today filed a class action complaint addressing a widespread, yet often ignored, public health crisis in America: the adverse impact of childhood trauma on learning.

Research has proven that childhood trauma stands in the way of academic success for millions of children, especially those in underserved communities. Low literacy, high dropout rates, repeating grades, low achievement, and the school-to-prison pipeline have all been shown to have a high correlation with exposure to trauma.] 

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