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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 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."]

Parent’s suit alleges that disciplinary action taken against child for purchasing ADHD medication from classmate amounted to “illegal expulsion”

The Lexington Herald-Leader reports that Steve Coleman, the father of a female student who attends Woodford County High School (WCHS) in Lexington Kentucky, has filed suit in federal district court against Woodford County School District (WCSD) challenging the school district’s decision to assign her to an alternative school for violating the district’s drug policy. The student, identified as K.C., purchased one Vyvanse pill from a classmate, but never ingested the pill. Vyvanse is a medication prescribed for the treatment of attention deficit hyperactivity disorder (ADHD). The suit seeks injunctive relief, damages and attorney fees.

WCHS  stripped her of her position as senior class president and assigned her to WCSD’s alternative school, Safe Harbor. The suit claims that being assigned to an alternative school amounts to an “illegal expulsion” and that the punishment imposed on her “is arbitrary and not rationally related to the offense charged against” her.

The district court denied Coleman’s motion for a temporary restraining order that would have required WCSD to readmit K.C. to WCHS. In addition to stripping K.C. of her position as senior class president, she was banned from the high school campus, prohibited from participating in any school-related activities, and was permanently removed from the cross-country team.

At issue is an incident that occurred in early September when K.C. discussed her anxiety about the ACT exam, scheduled for Sept. 13, with a classmate. The classmate told her that he had a prescription for Vyvanse. The classmate said he thought it would relieve her anxiety and help her focus if she took it before the exam. The classmate told K.C. that he would sell the pill to her for $5.

The suit claims that K.C. was “unaware that obtaining a prescription pill was impermissible” at the time she purchased the pill from her classmate. “If there was a concern about it being inappropriate or illegal on her part, she wouldn’t have obtained it in front of 25 or 30 other students and a teacher,” said her attorney, T. Bruce Simpson Jr. “The fact that it was in an open classroom reflects, at least in my judgment and her mind at the time, that there wasn’t anything illegal at the time,” he said.

Later that day, WCHS Assistant Principal Jennifer Forgy entered K.C.’s classroom and, in front of other students, instructed K.C. to gather her belongings and accompany her to the principal’s office. The suit indicates that Forgy refused to tell K.C. why she was being detained, and “K.C. was unaware of the basis for her removal from class.”

Without explaining why she was called to the office, WCHS Principal, Rob Akers, asked K.C. if she had  “paid another student for something.” When K.C. did not immediately divulge that she had purchased the pill, Akers directed an enforcement officer to search her. After realizing what Akers was referring to, K.C. acknowledged that she had purchased a pill from another student. K.C. voluntarily handed the pill to Akers. He informed her that a “witness” had “turned her in.”

The suit alleges that Akers and Forgy did not perform further investigation or questioning. It states that “[w]ithout giving K.C. an opportunity for a hearing or to offer any mitigating reasons for her conduct, defendants levied the following punishment: a five-day suspension (reduced to 21/2 days if K.C. enrolled in and completed a drug treatment therapy); 30 school days of placement in alternative school; a complete ban (except for after-school communications with teachers) from campus and all school-related activities, including all extracurricular clubs and sporting events, and homecoming activities; permanent removal from her position as senior class president; permanent removal from the cross-country team and [a] temporary ban from the softball team.”

According to the suit, after K.C.’s father arrived, Akers and Forgy presented K.C. with a “discipline/suspension report” and instructed her to sign it, without explaining what it was. In addition, the suit alleges that “[t]he bottom portion of that sheet, which now contains an explanation of the terms of her suspension and punishment, was blank at the time it was presented to and signed by K.C. Upon information and belief, that portion was completed some time after K.C. left.”

After leaving the school, Coleman took K.C. to a certified drug-screening facility in Lexington to perform a nine-panel drug screen. The suit indicates that “[t]he results of the drug screen came back completely negative for the presence of any drugs.”

The suit contends that there is no basis in applicable code or policy that provides for or enables a 30-day mandatory enrollment in the alternative school. However, in an affidavit, WCSD’s Superintendent, Scott Hawkins, refutes that allegation saying that four other students (and a fifth in a pending case) were assigned to 30-day stays in the alternative program after they were cited for drug offenses.

The suit indicates that because of a “deficient learning environment” and lack of instruction available to her at the alternative school, K.C. could not adequately prepare for exams.

In addition to being senior class president, K.C. was a member of the National Honor Society, and served on the student newspaper and in DECA. She regularly volunteers at the Woodford County Clothing Bank, the Woodford County Library and Huntertown Elementary School. She was also enrolled in five advanced placement classes and had no prior criminal record or prior disciplinary history at the high school.

The suit also indicates that the school was aware of her history of anxiety.


Source: Lexington Herald-Leader, 9/30/14, By Greg Kocher

[Editor's Note: In August 2012, Legal Clips summarized an article in the Portsmouth Daily Times which reported that the National Center on Addiction and Substance Abuse (NCASA), at Columbia University, had issued its annual survey, “National Survey of American Attitudes on Substance Abuse XVII: Teens.” In the survey, NCASA reported that nearly nine out of 10 high school students, 86% of those surveyed, said that some classmates drank, used drugs, and smoked during the school day. The results of the survey were garnered asking questions of 1,003 teens, including 510 girls and 493 boys ages 12-17 years old.] 





New Jersey high school cancels football season after allegations of hazing

The Washington Post reports that Sayreville, New Jersey’s schools Superintendent Richard Labbe announced that War Memorial High School would be cancelling the remainder of the football season following allegations of hazing.

“There was enough evidence that there were incidents of harassment, of intimidation and bullying that took place on a pervasive level, on a wide-scale level and at a level at which the players knew, tolerated and generally accepted,” Labbe said. “Based upon what has been substantiated to have occurred, we have canceled the remainder of the football season,” he said.

The Sayreville Police Department and Middlesex County Prosecutor’s Office are conducting a criminal investigation. In addition to the hazing allegations, last week Charles Garcia, an assistant coach on the varsity team, was arrested and charged with possession of steroids following a traffic stop in Somerset County. Garcia’s attorney said that the coach has resigned his position.

Source: The Washington Post, 10/7/14, By Marissa Payne


[Editor's Note: On October 7, 2014, Patrick Lanni of NJ Avance Media provided a timeline in nj.com of events in Sayreville from October 2 to October 7. In the report, Lanne quoted Labbe as saying that this was an opportunity to take a stand against bullying.

New Jersey has one of the most stringent anti-bullying laws in the United States. In January 2011, Legal Clips summarized a Star-Ledger article reporting that Governor Christie had signed the state’s latest anti-bullying legislation into law, which advocates tout as the toughest in the nation. 

In November 2010, Legal clips summarized a Boston Globe article reporting that a number of education and athletic associations had expressed support for Needham High School officials’ decision to suspend members of the school’s girls’ soccer team for allegedly hazing younger teammates.]


Mississippi’s attorney general seeks dismissal of school funding suit

Gulflive.com reports that Mississippi Attorney General (AG), Jim Hood, has filed a motion in Hinds County Chancery Court seeking dismissal of a lawsuit filed by 21 school districts claiming that Mississippi owes them $230 million in education aid and demanding an end to future shortfalls. The AG’s office argues that despite a 2006 law that mandates that the school aid formula must be fully funded, that guarantee has no power to bind future legislatures.

According to the AG,”One session of elected legislators cannot dictate the discretionary budgeting and appropriation authority of a future session of elected legislators.”  The AG’s brief supporting the motion cites cases from five other states to prove his point, but emphasizes that it’s ultimately common sense. The brief states: “If the principle did not exist, as the school districts’ ill-conceived mandatory appropriations theory here contemplates, the 2006 Legislature could have enacted a statute providing every subsequent legislature ‘shall never appropriate more than $1 to any school district’ in any given fiscal year.”

The suit seeks to force the state to compensate school districts for shortfalls in the Mississippi Adequate Education Program funding formula which have occurred since 2010. Under that law, the state legislature is required to fully fund the formula. The suit also asks the court to order lawmakers to never again underfund the program.

Former Gov. Ronnie Musgrove, who represents the school districts, argues that the law leaves no room for interpretation. “Unfortunately, General Hood finds himself in the difficult situation of having to defend a client that is undeniably guilty,” Musgrove said.

Hood, however, points out that in a separate provision in the 2006 law, the legislature directed how money should be allotted when the full amount isn’t appropriated, showing that lawmakers didn’t even intend for the statement to be binding. Musgrove argues that the same law closed those partial-funding escape hatches after 2009.

Hood argues that even if lawmakers did have the power to bind their successors, a judge would violate the separation of powers among the judicial, legislative and executive branches by telling lawmakers how to spend money. “Courts do not step in and direct legislators [on] how they must go about passing laws,” Hood’s office wrote. “Generally the separation of powers doctrine precludes courts from declaring how legislators must interpret any obligations the MAEP statutes impose on them.”

Source: gulflive.com, 10/7/14, By AP

[Editor's Note: In September 2014, Legal Clips summarized an article in the Jackson Free Press providing background on Mississippi's school funding suit. The article reported that fourteen Mississippi school districts had sued the state of Mississippi alleging that it has owed them more than $115 million in funding since 2010.]



U.S. Supreme Court declines request to review Eleventh Circuit decision holding Alabama’s state property tax system does not discriminate against African American students

According to AL.com, the U.S. Supreme Court denied review in Lynch v. Alabama, Docket No. 13-1232, which challenged Alabama’s property tax system on the grounds that it discriminates against African American children attending public schools in the state. The suit, brought on behalf of families of poor Alabama school children, alleged that Alabama’s property tax system, which collects the lowest taxes in the country per capita, was set up to ensure that wealthy landowners would be able to pay low rates and effectively ensure limited funding for public schools attended by minority children in Alabama’s rural black belt.

The suit contended that the state’s tax laws are rooted in the racist 1901 state constitution and that the updated laws were passed in the wake of court decisions ordering desegregation of Alabama’s public schools. Alabama defended the suit by asserting that the property tax system is not discriminatory, voters have the ability to raise rates, and that state data shows no deficiency in funding for school systems with large minority student populations.

The petition for certiorari to the Supreme Court was the final attempt to overturn the tax laws in court. The Supreme Court’s denial of certiorari effectively ended any further attempts to use the legal system to dismantle the legislation. Both a federal district court and the U.S. Court of Appeals for the Eleventh Circuit upheld the constitutionality of the tax laws. While both courts expressed concern about inequity in Alabama’s public education system, they both agreed that there wasn’t sufficient evidence to prove that the state’s property tax laws were designed to harm public schools in the wake of federal desegregation orders.

The district court found that the tax laws were about economic benefit for landowners, not racial discrimination. The Eleventh Circuit observed, “Courts, however, are not always able to provide relief, no matter how noble the cause.”

Jim Blacksher, one of the attorneys who brought the suit, said  “We’re disappointed but not surprised.”  “Going to the Supreme Court was a very long shot, but we can say we went the last mile. Now tax reform can only be addressed in the legislature.”

Alabama Attorney General Luther Strange, who represented the state, said, “The Supreme Court’s decision not to intervene confirms our consistent position that Alabama’s property tax structure does not violate the United States Constitution, and equally as important, that the citizens of Alabama have a right to structure their own tax system.”

Source: AL.com, 10/6/14, By Brian Lawson

[Editor's Note: The Council of School Attorneys (COSA) maintains a chart available to the public that tracks cases on the U.S. Supreme Court docket for the current term.

In December 2013, Legal Clips summarized an Associated Press article in the New Jersey Herald reporting that superintendents in two upstate New York school districts, Schenectady and Middletown, had filed complaints with the U.S. Department of Education’s Office for Civil Rights claiming that the state’s public school funding scheme discriminates against minority students.]

Tennessee district agrees to pay anti-Sharia law group $17,500 to settle facilities use suit

WBIR reports that the Knox County School District (KCSD) has agreed to pay Act! for America, an anti-Sharia law group, approximately $17,500 to settle a suit filed by the group after Superintendent Jim McIntyre rescinded permission for the group to use Farragut High School for an after-school event. Just weeks before the event, McIntyre decided to renege on the original offer because of media publicity about the group’s plan to discuss Sharia law and his fear that allowing the group to use the facilities would cause “disruption” at the school.

John Peach, Director for Act! for America’s Knoxville chapter, and Bill French, one of the scheduled guest speakers, then filed a lawsuit in federal district court suing the school board, McIntyre and Michael Reynolds, the principal of Farragut High School. This settlement resolves that suit. In addition to the financial settlement, KCSD has also amended its policy regarding the community’s use of school facilities.

Knox County Law Director Richard “Bud” Armstrong said Act! for America argued that the school system discriminated against it, since other religious-based groups in the past were able to hold events at the school’s facilities. “As part of the settlement we said that we did nothing wrong,” he said. “We were following our policy but our policy was flawed. It wasn’t discrimination.”

Armstrong also pointed out that the new policy specifically states that the use of the facilities is not based on the content of the message or viewpoint of the applicant. The new policy strikes language that gives the superintendent discretion to determine who can and can’t use a facility.

KCSD officials noted that Act! for America can also re-apply to use the school facilities and would more than likely be given permission to use the facilities.

Source: WBIR, 10/2/14, By Mike Donila

[Editor's Note: In September 2014, Legal Clips summarized a report from WATE.com on Act! for America's suit. The report noted that the Knox County School Board had approved revisions to its policy governing the use of school facilities by outside groups. This policy change was recommended by the board’s legal counsel after the suit was filed.]

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