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DOJ, along with several civil rights groups, are asking federal appellate court to reinstate Title IX suit of female student used as bait in sex sting

According to an Associated Press (AP) report in the Las Vegas Review-Journal, the U.S. Department of Justice (DOJ) and 33 advocacy groups, are asking the U.S. Court of Appeals for the Eleventh Circuit to reverse U.S. Magistrate Judge Michael Putnam’s ruling dismissing a Title IX suit brought by the father of a female student who attends Sparkman Middle School in Huntsville, Alabama. The suit contends that the female was dangled as bait to lure a male eighth-grader with a history of sexual harassment to attempt  to have sex with her, so he could be disciplined.

The father, along with DOJ and others, argue that the judge should have let the suit against the Madison County School Board, four school employees and the male student, move forward. The parties assert that he erred when ruling that Sparkman Middle School officials didn’t have sufficient warning that the boy might pose a threat. Putnam didn’t endorse the idea of using the girl as bait for a predator, but said allowing her to be put in such a position wasn’t bad enough for the lawsuit to continue under legal standards.

Judge Putnam’s opinion stated: “Although it was foolish to send (the girl) to meet (the boy), the court cannot say that it was ‘extreme and outrageous.’ The scheme to catch (the boy) ended horribly and tragically, but the idea of using (the girl) to catch (the boy) ‘in the act,’ however foolish, was not so extreme or outrageous as ‘to be regarded as atrocious and utterly intolerable in a civilized society.’” DOJ supports the plaintiffs’ position that school administrators knew of the plan and should have realized that the male student was a threat based on his history of propositioning female students. The friend of the court (amicus) brief filed with the Eleventh Circuit by the 33 organizations said, “The district court failed to appreciate the role of the school’s sexual harassment policy and conduct in causing (the girl’s) rape.”

Ronnie Blair was the principal. Jeanne Dunaway and Teresa Terrell were assistant principals and June Simpson was a teacher’s aide. The male student named in the lawsuit had been subject to discipline by administrators at least 14 times, including four for sexual harassment of female students, the judge found. He had also had infractions at a school he attended prior to attending Sparkman. Some documents indicate that at least one of the youths involved has been in a special needs program, but their exact status isn’t clear because of student privacy laws.

According to allegations in the suit, Simpson said, “Blair advised me that we were going to have to catch (the boy) in the act before he could take any disciplinary action ….” Simpson also said that on Jan. 22, 2010, the female student came to her saying that the male student had propositioned her to have sex with him in a boy’s bathroom. “I suggested to them that (the girl) agree to meet (the boy) in the restroom so he could be ‘caught in the act,’ because Mr. Blair had told me that nothing could be done to help these girls until he was caught in the act,” Simpson said.

After the female student agreed, Simpson said she took her to Dunaway’s office and told the assistant principal about the plan. Dunaway appeared “disinterested,” Simpson said. The girl, in sworn testimony, said she met the boy in a bathroom at his urging and he began trying to take her pants off in a stall. “I said I don’t want to do this,’” the female student said.

She said she tried to block the boy, but he raped her moments before teachers entered the bathroom. Police were called and an examination found injuries consistent with rape, but no charges were filed. Authorities have said that the boy wasn’t prosecuted because the girl initially said she wasn’t threatened or forced to have sex.

Simpson said she quit after Blair threatened her with termination and prosecution, but Blair remains at the school. Dunaway was promoted and is now a principal at an elementary school in Madison County. The school denies that the administrators knew anything about Simpson’s plan, and Blair testified that he wasn’t sure if he ever told workers that the boy had to be “caught in the act” before he could be disciplined.

Source: Las Vegas Review-Journal, 10/12/14, By Jay Reeves (AP)

[Editor's Note: DOJ's involvement in the suit is as an amicus (friend of the court) in which capacity it has filed a brief. The DOJ brief makes two points: (1) the plaintiffs had presented sufficient evidence that school officials had actual notice that the male student posed a substantial risk to other students; and (2) the plaintiffs had presented sufficient evidence that school officials were deliberately indifferent to the male student's history of  violent sexual misconduct.]

Florida’s teachers union refiles suit challenging expansion of state’s voucher program

Following dismissal of a lawsuit seeking to overturn Florida’s new law expanding the state’s private school voucher program, the Orlando Sentinel reports that the Florida Education Association led coalition has filed a new suit. The current suit again names the teacher as a plaintiff, but also adds parents whose children currently attend Miami-Dade County public schools in order to cure the problem of legal standing. The suit contends that they have legal standing, in part, because an expansion of the voucher program would shift to private schools money that otherwise would go into the public education system.

Patricia Levesque, chief executive officer of the Foundation for Excellence in Education, which is a major supporter of school-choice programs, criticized the suit saying, “It is unfortunate, but not unexpected, that the Florida Education Association continues its crusade against families who are poor or have students with learning disabilities.” She added, “How are we to take seriously an allegation that giving more than 70,000 disadvantaged children an opportunity to succeed in life threatens injury to three parents and a social studies teacher?”

The suit was spurred by passage of legislation that included expanding eligibility for the voucher program and creating “personal learning accounts” to help parents of students with disabilities pay for educational services.

Source: Orlando Sentinel, 10/22/14, By Jim Saunders

[Editor's Note: In September 2014, Legal Clips summarized an article in the Miami Herald reporting that Leon County Circuit Court Judge Charles Francis had dismissed a suit, brought by the Florida Education Association (FEA), challenging recently enacted legislation expanding the state voucher program and creating new scholarships for children with disabilities. The suit claimed that the law violates a state constitutional requirement that each law be limited to a single subject.] 


Sua Sponte: OCR issues guidance on bullying of students with disabilities

The U.S. Department of Education’s Office for Civil Rights (OCR) has issued guidance to public schools nationwide in the form of a “Dear Colleague letter” (DCL) regarding the bullying of disabled students. The press release announcing the guidance states that the guidance details school officials’responsibilities under Section 504 of the Rehabilitation Act (Section 504) and Title II of the Americans with Disabilities Act (ADA) regarding the bullying of students with disabilities. It adds, “If a student with a disability is being bullied, federal law requires schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.”

In the press release, Catherine E. Lhamon, Assistant Secretary for Civil Rights, says: “[w]hile there is broad consensus that bullying cannot be tolerated, the sad reality is that bullying persists in our schools today, especially for students with disabilities. Basic decency and respect demand that our schools ensure that all their students learn in a safe environment. I look forward to continuing our work with schools to address and reduce incidents of bullying so that no student is limited in his or her ability to participate in and benefit from all that our educational programs have to offer.”

The new guidance builds on OCR’s 2013 DCL, its 2010 DCL and its 2000 DCL. It makes clear that “the protections for students with disabilities who are bullied on any basis extend to the roughly three quarters of a million students who are not eligible for IDEA services but are entitled to services under the broader Section 504 of the Rehabilitation Act of 1973.”

The guidance states: “OCR would find a disability-based harassment violation under Section 504 and Title II when: (1) a student is bullied based on a disability; (2) the bullying is sufficiently serious to create a hostile environment; (3) school officials know or should know about the bullying; and (4) the school does not respond appropriately.” It points out that even when a school concludes that the bullying did not create a hostile environment, the school would still have an obligation to address any FAPE (free appropriate public education) related concerns.

The guidance  states: “The bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504.” In addition, it stresses that schools have a continuing obligation under Section 504 to ensure that a qualified student with a disability receiving an IDEA FAPE or Section 504 FAPE continues to receive that FAPE regardless of why the student is being bullied.

The guidance  also points out that unless it is clear that bullying has had no effect on the disabled student’s receipt of a FAPE, “the school should, as a best practice, promptly convene the IEP team or the Section 504 team to determine whether, and to what extent: (1) the student’s educational needs have changed; (2) the bullying impacted the student’s receipt of IDEA FAPE services or Section 504 FAPE services; and (3) [to provide] additional or different services, if any, are needed, and to ensure any needed changes are made promptly.”

According to the guidance, when OCR opens an investigation into disability-based harassment, it considers a number of factors including whether the student with a disability was bullied by one or more students based on the disability; whether the bullying conduct was sufficiently serious to create a hostile environment; Whether the school knew or should have known of the conduct; and whether the school failed to take prompt and effective steps reasonably calculated to end the conduct, eliminate the hostile environment, prevent it from recurring and, as appropriate, remedy its effects.

The guidance also indicates that when OCR is investigating whether a student receiving an IDEA FAPE or a Section 504 FAPE was denied a FAPE under Section 504, it considers a number of factors, including  whether the school knew or should have known that the bullying may have affected the student’s receipt of IDEA FAPE services or Section 504 FAPE Services. If the answer is no, then there is no violation. If the school answers in the affirmative, then OCR considers if the school met its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, making the necessary changes to the student’s IEP or Section 504 plan.



Coalition of parents and civil rights groups files suit claiming California district’s disciplinary policies discriminate against minority students

According to Bakersfieldnow.com, Kern High School District (KHSD) is the target of a suit filed in Kern County Superior Court by a group of parents and civil rights organizations alleging that the school district’s discipline policies discriminate against Latino and African-American students. The civil rights groups involved in the suit are: California Rural Legal Assistance (CRLA), Greater Bakersfield Legal Assistance, the Mexican American Legal Defense and Educational Fund, Dolores Huerta Foundation, and Faith in Action Kern County.

CRLA attorney Cynthia Rice said, “A disproportionate number of African-American children and Latino children are not given equal access to the education opportunities that they deserve.” She also pointed out that while the KHSD says they’re lowering the rate of expulsions, high numbers of minority students still face unfair discipline.

The suit challenges the discipline and involuntary transfer policies in the district. It claims that the policies push too many Hispanic and black students out of the general education setting  and places them in alternative settings like community schools, continuation schools and independent study. Rice says that these  alternative settings put the students on a “path to nowhere.” According to allegations in the suit, KHSD reported 2,205 expulsions for the  2009-’10 school year, which the suit claims was the highest actual number of expulsions in the state.

KHSD Assistant Superintendent Brenda Lewis contends that the district has been working on the concerns addressed in the suit.”We have heard from the state that we do have — have a higher rate of suspension[s] and expulsion[s] for these minority students, and we’re addressing the issues,” Lewis said. She also said that the district planned meetings with the organizations.

KHSD administrators told the school board earlier this week that  the number of expulsions had dropped dramatically. The CRLA attorney calls the numbers “smoke and mirrors.” “You need to look behind these numbers and see what’s happening to the same type of children,” Rice says, referring to minority students. “What we find is there’s not any significant difference in the real number of kids who are being taken out of the general education system and put into alternative schools.”

The suit states that this amounts to an inferior education. It contends:”Students who receive harsh discipline and are transferred out of a general school setting are also more likely to dropout. [They're] [l]ess likely to graduate on time, if at all, and are less likely to attend or complete college or post-high school vocational training.”

KHSD issued an official statement in which a spokeswoman said that the school district had not received the suit and declined further comment. The suit seeks a court order forcing KHSD to make changes to “end race-based discrimination” in student discipline, and to provide remediation services to students who were disciplined under the current policies.

Source: Bakersfieldnow.com, 10/9/14, By Carol Ferguson

[Editor's Note: In March 2014, Legal Clips summarized an article in  The Chronicle reporting that the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) had issued its first report in almost 15 years examining civil rights data from public schools nationwide. The Civil Rights Data Collection (CRDC) from the 2011-12 school year compiled data from all 97,000 of the nation’s public schools and its 16,500 school districts – representing 49 million students. U.S. Attorney General Eric Holder noted, “This critical report shows that racial disparities in school discipline policies are not only well-documented among older students, but actually begin during preschool.” He added, “Every data point represents a life impacted and a future potentially diverted or derailed. This Administration is moving aggressively to disrupt the school-to-prison pipeline in order to ensure that all of our young people have equal educational opportunities.”] 

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 rights 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.”

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