Administrative law judge applied wrong standard in determining whether student suffering from Ehlers-Danlos Syndrome was eligible for special education services under IDEA

A U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) three-judge panel has reversed the decision of an administrative law judge (ALJ) and the district court, ruling that a student suffering from Ehlers-Danlos Syndrome (EDS) was not eligible for special education services under the Individuals with Disabilities Education Act (IDEA) because his medical condition does not adversely affect his educational performance. The panel concluded that both the ALJ and the federal district court had applied the incorrect standard in determining whether the student’s  EDS rendered him eligible for services.  The ALJ had found that the student’s EDS adversely affects his educational performance because it causes him to experience pain and fatigue at school school, which can affect his educational performance (emphasis added).  "This is an incorrect formulation of the test, " found the panel.  "It is not whether something, when considered in the abstract, can but whether in reality it does adversely affect a student’s educational performance."

C.D. attends school in Marshall Joint School District No.2 (MJSD2). Because of his EDS, the IEP team found him eligible for special education, and MJSD2 provided him with additional resources in his academic classes and special education services in gym. His eligibility for such services was reevaluated in second grade, at which time the team determined that he was no longer eligible for special education services. MJSD2 employed the two-step process mandated by IDEA for determining C.D.’s eligibility:  (1) whether the child has a disability recognized by the statute; and (2) as a result, needs special education.   EDS fell within the catch-all category of "other health impairment" under the IDEA.  In order for a condition in this category to qualify, however, it must adversely affect the student’s educational performance. If this threshold step is satisfied, the school district must determine whether as a result the student “needs special education.” Although MJSD2 concluded C.D.’s EDS does not adversely affect his educational performance, it still addressed the second step. It concluded he "did not need special education because his needs could be met in a regular education setting with some slight modifications for his medical and safety needs."

C.D.’s parents disagreed with the finding and requested an administrative (due process) hearing.  The ALJ rejected MJSD2′s finding,  holding that C.D.’s “ability to fully and safely perform and participate in certain physical activities at school, including regular PE class and recess, is adversely affected by his EDS.” The ALJ also rejected MJSD2′s alternative finding that C.D. did not need special education, concluding that C.D. “cannot safely engage in unrestricted participation in various activities of the regular PE program and that he requires special education, particularly specially designed PE and related services to meet his unique needs.”  MJSD2 appealed the ALJ’s decision to a federal district court in Wisconsin, which upheld the ALJ’s ruling.

The Seventh Circuit panel reversed the lower court’s decision and remanded the case to it with instructions to enter judgment for MJSD2.   It found that the ALJ’s misstatement of the law had affected her finding and had resulted in over reliance on C.D.’s doctor’s opinion even though the doctor lacked any special education expertise.  "[T]he ALJ applied the wrong legal standard in determining whether the EDS adversely affected C.D.’s educational performance, and while there is evidence that the EDS can affect C.D.’s educational performance, there is no substantial evidence to support the ALJ’s finding that it has an adverse affect."

The appellate panel pointed out that even if the ALJ’s analysis of the first step had been correct, the ALJ would still have to determine if C.D., as a result of his condition, requires special education.  Agreeing with MJSD2′s contention that "physicians cannot simply prescribe special education for a student," the panel rejected the ALJ’s reliance on C.D.’s medical experts.  The panel rejected the ALJ’s finding that C.D.’s adaptive physical education teacher’s testimony was "not credible," noting that the teacher was responsible for both formulating and implementing  his individualized educational plans (IEP) and coordinating the modifications and accommodations that allowed C.D. to participate more fully in physical education class. It found that the very expertise that the teacher exercised in ensuring that C.D.’s IEP was followed was being discounted because according to the ALJ the teacher’s compliance with IDEA negated her contention that C.D. was no longer in need of special education.

The panel found that C.D. had no need of special education in physical education because  "his needs could be addressed by allowing him to participate in regular gym with a health plan." It noted, as had the district court, that C.D. did not need special education in gym because he was performing at grade level and had made huge personal gains over previous years. Lastly, the panel noted C.D.’s indeed could benefit from physical and occupational therapy.”  These services are related services, however, used to give a student the full benefit of special education instruction under IDEA.  The statute is "perfectly clear on this point: if a child has a health problem ‘but only needs a related service and not special education, the child is not a child with a disability.’"

Marshall Joint Sch. Dist. No. 2 v. C.D., Nos 09-1319/09-2499 (7th Cir. Aug. 2, 2010)

[Editor's Note: In 2007, the U.S. Court of Appeals for the First Circuit (ME, MA, NH, PR, RI)  ruled that a student suffering from Asperger’s Syndrome qualified as a "child with a disability" under the Individuals with Disabilities Education Act (IDEA) entitled to special education services, even though she excelled academically, because any negative impact her condition had on her educational performance, regardless of degree, could qualify as an "adverse effect" for purposes of IDEA’s eligibility test. A summary of the opinion is available below.]

NSBA School Law pages on Mr. I. et al. v. Maine Admin. Dist. No. 55

Pittsburgh school board approves settlement in bullying suit

The Pittsburgh Public Schools (PPS) board has approved the settlement of a suit brought by the parent of a student whom the parent claims was subjected to peer bullying and harassment about her weight, reports the Pittsburgh Post-Gazette. The board has agreed to pay $55,000, plus the cost of mediation. The suit alleged that a hostile school environment existed at Frick Middle School because school officials failed to act to put an end to the teasing and abuse of the student by fellow students. The suit charged that school administrators knew the student was being harassed but failed to take action or inform the parent of what was happening. It added that as a result of the harassment, the student had to be hospitalized for anorexia.

Even though the parent’s attorney has been unable to contact his client since the board approved the settlement, the federal court judge assigned to the case has scheduled a hearing on the settlement. PSS’s attorney, Ira Weiss, hopes the  judge will issue an order enforcing the settlement action. "It is not uncommon for parties to seek court intervention to enforce a settlement," he said. At the time of mediation, Weiss added, all of the parties were present and signed a summary of what they expected the settlement to be.

Source: Pittsburgh Post-Gazette, 8/4/10, By Paula Reed Ward

[In a related development, Courthouse News Service reports that the stepfather of a student who was rendered paraplegic after a suicide attempt has filed suit  in a Wisconsin federal district court against Chequamegon School District and its officials alleging the school district did not properly respond to bullying by a girl's classmates. A copy of the legal complaint is available below.]

Legal Complaint: Morenweiser v. Chequamegon Sch. Dist.

Federal district court judge releases Florida school district from desegregation order, but rejects parties’ settlement agreement

U.S. District Court Judge Anne Conway has released Orange County School District from a decades-old desegregation order, says the Orlando Sentinel. The order declared OCSD "unitary," which means that the court has determined that the school district has eliminated the vestiges of past discrimination "to the extent practicable" and no longer requires court intervention. "Having achieved unitary status in all areas of public school operation, the School Board is now entitled to reclaim full control over its affairs," Conway’s order stated. "The duty now falls upon the political system to ensure that the discrimination which triggered this action does not once again percolate."

Over the past months, OCSD’s attorneys and the NAACP Legal Defense and Education Fund, which represented the plaintiff’ families, negotiated a settlement. Both parties agreed that reaching a settlement was preferable to protracted litigation. The Orange County School Board approved an agreement with the NAACP this spring and submitted it to the court.  Judge Conway rejected their settlement, however, which included a number of concessions, such as rushing renovations of black-majority schools. The judge criticized both sides for focusing more on their agreement than on showcasing how the district had, or had not, changed. It was the court’s duty to assess whether the school system had met its legal obligations.  The parties’ "reluctance to confront the real issues in this case" made her job "manifestly more difficult," said the judge.

Judge Conway nevertheless concluded that the district had met the requirements to have the case dismissed despite a lack of evidence from both sides. In the five key areas a judge must consider in school desegregation cases, she concluded, Orange has shown that it no longer uses race as a factor in student or staff assignments, school facilities, extra-curricular activities or transportation. "The School Board has shown remarkable good faith compliance with the desegregation plan over the years, resulting in the elimination of any vestiges of the prior dual education system," she added.

The judge also expressed surprise at  the "lack of community interest" in the proceedings.  At a hearing in May the attorneys presented no evidence, only nine members of the public signed up to speak, and only four of them showed up. "Thus," she noted, "the hearing to determine whether to terminate federal court supervision over this near-fifty-year-old school desegregation case was opened and adjourned in only 15 minutes."

Source: Orlando Sentinel, 8/2/10, By Leslie Postal

[Editor's Note: Not all requests for a finding of unitary status travel the smooth road that Orange County's apparently did. In 2009, the Jackson Sun reported that the NAACP was opposing the Jackson-Madison County School Board’s (JMCSB) motion in federal court for full unitary status. While the NAACP supported partial unitary status, its attorney argued that the school district had not done all it could to create racial balance, such as rezoning. A summary of the article is available at the first link below.

The DOJ is still monitoring school districts under desegregation orders.  Recently, DOJ filed a complaint with a federal district court in Mississippi alleging that the Walthall County School District (WCSD) had violated its 1970 desegregation order by (1) implementing transfer policies that made certain schools racially-identifiable; and (2) assigning disproportionate numbers of white students to certain classrooms, resulting in significant numbers of segregated, African-American classrooms.  The court issued an order requiring WCSD to revise its transfer policies and eliminate segregated classrooms.  A summary of the order is available at the second link below.

Meanwhile, the News & Observer reported on NAACP North Carolina chapter's  ongoing battle with the Wake  County School Board over its vote to eliminate its busing policy in favor of keeping students in schools close to their homes, ending a diversity plan that was considered a model for school districts. A summary of the article is available at the third link below.]

NSBA School Law pages on JMCSB request for unitary status

NSBA School Law pages on federal district court order on Mississippi district’s transfer policies

NSBA Legal Clips archives on Wake County diversity plan dispute

Parent claims that seizure of cellphone and search of text messages by school officials violated student’s constitutional rights

According to a Dallas Morning News report in the Denton Record-Chronicle, the parent of a MacArthur High School student claims that school officials violated his daughter’s constitutional rights when they took her cellphone and read her text messages. Officials contend that they had probable cause to search the  student’s cellphone because of suspected criminal activity. They also point out that she voluntarily surrendered the phone. Her father, Frank Beaird, says she was ordered to do so and feared punishment.

Vice principals at the school and a school resource officer were looking into possible criminal activity related to the keying of two students’ cars, rumors that a gun was brought to campus, and bullying. “The campus administrators were working in the best interests of all the students on the campus, including those involved in the search, trying to make sure the campus was safe and secure for everyone,” Assistant Superintendent Neil Dugger wrote in a statement.

Beaird demands $7.5 million in damages to his daughter.  He asked for an apology from the district and termination of the vice principal and school resource officer involved in the search. Beaird pointed to a lawsuit filed by the American Civil Liberties Union accusing school officials in Pennsylvania of searching a girl’s phone without probable cause to punish her for storing semi-nude photos of herself.

School district officials say the Supreme Court established that students have fewer protections in a school setting because of schools’ need to preserve order. Lisa Graybill, legal director for the ACLU Foundation of Texas declined to comment on this specific case.  She said that schools can conduct a search if they have reasonable cause, but there are schools that have gone too far. “Students’ rights are limited by the fact that they’re in the school environment, but they don’t have no rights at all,” she said. “They maintain reasonable privacy even when they’re at school.”

Source: Denton Record Chronicle, 8/2/10, By Katherine Leal Unmuth (Dallas Morning News)

[Editor's Note: The Pennsylvania lawsuit referred to by the parent was reported by Courthouse News Service in May. One of the students involved in the “sexting” incident at Tunkhannock Area High School (TAHS) in Wyoming County filed suit in federal court against the Tunkhannock Area School District (TASD), TAHS’s principal, the county and the district attorney. N.N., the student in question, claims Principal Gregory Ellsworth violated her constitutional right to privacy by seizing her cell phone and turning it over to the district attorney because it contained “explicit” photos of herself.  A summary of the article is at the first link below.  A three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) ruled that another student  involved in the same incident, who engaged in “sexting,” was entitled to a preliminary injunction barring a local prosecutor in Pennsylvania from prosecuting the student under the state’s child pornography laws for refusing to participate in “education program.” The panel concluded that the prosecution under those circumstances would constitute retaliation for the student exercising her First Amendment right against compelled speech, and for the parent asserting her Fourteenth Amendment substantive due process right to control her child’s upbringing. However, the opinion did not address the issue of whether the seizure and search of the student's phone had Fourth Amendment implications. A summary of the opinion is available at the second link below.]

NSBA School Legal Clips archive on N.N. v. Tunkhannock Area School District

NSBA School Law pages on Miller v. Mitchell

Four urban school districts identified as failing to comply with federal ELL standards

Education Week reports that according to recent reviewsof the school systems in Boston, Buffalo, NY, Portland, OR, and Seattle, those districts are not providing English language learner (ELL) students with the level of assistance in learning English that is guaranteed under federal law. The reviews, which where conducted by state officials or private independent groups, dovetail with current efforts by the U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) to step up enforcement of civil rights laws in schools. ELL program directors  in those four districts indicate that they are trying to fix the problem, and point to confusion over how to apply federal civil rights laws to the education of such students.

It is expected that DOJ’s and ED’s enforcement efforts will bring clarity as to how to apply those civil rights laws to ELL programs. Since January 2009, DOJ has opened 15 investigations into ELL programs, including Boston. Thomas E. Perez, the assistant attorney general for DOJ’s civil rights division has laid out some guidance for districts. “All English-language-learner students have the right to appropriate language-support services until they achieve English proficiency,” he says, “and when educational agencies terminate such services prematurely, they deny these students the equal educational opportunity that federal law guarantees them.” Both ED and DOJ officials have made it clear that the school system must provide language support even if English-learners go to schools without formal programs. When parents decline participation in an alternative language program for their children, districts still have a responsibility to meet students’ language needs.

According to DOJ, one of its enforcement methods  is to investigate if states as well as individual districts are complying with the Equal Educational Opportunities Act of 1974, which requires schools to take action to overcome language barriers that hinder ELLs from having equal access to education. For example, DOJ announced that the Illinois board of education has adopted new administrative rules to address the federal agency’s concern  that Illinois schools aren’t giving ELLs special help to learn English until they reach proficiency in the language.

Source: Education Week, 7/30/10, By Mary Ann Zehr

[Editor's Note: The DOJ press release regarding recent changes to Illinois administrative rules cited by Education Week is available at the first link below. 

Mary Ann Zehr continues her examination of recent enforcement activity by the DOJ at her blog, available at the second link below.  She says that DOJ is stepping up its enforcement of civil rights in schools, including the ongoing ELL investigations.  She links to the DOJ web site, which contains an April 10 agreement between the department and a Colorado district resulting from an ELL review there.  The agreement lists specific services that will be provided by the district with respect to its ELL students.   

In a January, 2009 article for Inquiry & Analysis, Donna M. Andrew wrote on "The Fundamentals of Educating English Language Learners."  The issue is available to Council of School Attorneys members at the third link below.

In March, the New York Times reported on ED's plans to enhance its enforcement efforts of civil rights laws. The article quoted ED Secretary Arne Duncan as saying that ED's Office for Civil Rights “has not been as vigilant as it should have been in combating gender and racial discrimination and protecting the rights of individuals with disabilities. . . . We are going to reinvigorate civil rights enforcement.” A summary of the article is available at the fourth link below.]

DOJ Press Release re:  changes in Illinois rules on ELL students

Education Week blog on ED and DOJ enforcement of civil rights

Inquiry & Analysis article:  "The Fundamentals of Educating English Language Learners"

NSBA School Law pages on ED’s renewed civil rights laws enforcement

Group of disabled students charge Louisiana Dep’t of Ed. ignored violations of federal law by New Orleans public schools

A group of disabled students, represented by the Southern Poverty Law Center, Southern Disability Law Center and Loyola Law School’s Community Justice Clinic, have filed an administrative complaint with the Louisiana Department of Education (LDE), says the New Orleans Times-Picayune, alleging New Orleans public school officials committed a myriad of federal disability laws violations that LDE and the state Board of Elementary and Secondary Education (LBOESE) ignored. According to the complaint, LDE and LBOESE officials "denied New Orleans public school students their educational rights and placed an untenable burden on the operators of New Orleans’ public schools" by failing to remedy problems they knew existed.

The students are requesting appointment of a "special master" who would ensure that New Orleans schools are adequately serving the estimated 4,500 children with disabilities who are currently enrolled. If their concerns are not met,  their attorney said the next step would be a federal lawsuit. State Superintendent of Education Paul Pastorek said he wished the complainants had reached out to state officials earlier. "While we have no way of verifying these specific incidents as of yet, it’s unacceptable that any child or family would have to endure the kind of hardships that were described by the Southern Poverty Law Center in this complaint," Pastorek said. "If we had been notified, we would have worked with this organization, these students and their families to resolve any deficiencies so that their physical, emotional and educational needs are met by their local districts and schools."

Recovery School District (RSD) Superintendent Paul Vallas disputes the claims in the complaint, calling them  "kind of misinformed and off base." He pointed out  that following Katrina the school district started from scratch because paperwork on special-needs students had been lost in the chaos. According to Vallas’ estimate, five years later,  a third of the charter schools in his district are doing an "outstanding" job with special-needs students, a third are "getting there" and a third "need to make improvements." According to state data released in June, all but four RSD charter schools had special education populations of 5% or higher.

Source: New Orleans Times-Picayune, 7/28/10, By Cindy Chang

[Editor's Note: In January 2008, the Times-Picayune reported that two years after charter schools began taking over the city's education landscape, they serve, on average, significantly fewer special education students than traditional schools.  According to the article, the five traditional Orleans Parish School Board schools, many of which have selective admissions, had an average of close to 7% special education students in December, while the School Board's charter schools averaged about 4%. Activists reported that they were hearing fewer complaints of charter schools outright turning away special education children, but said some charter operators had found subtle ways to discourage children with special needs from staying. Vallas was quoted as saying, “By the end of the year, we will have addressed all kinds of issues.” A summary of the article is available below.]

NSBA School Law pages on New Orleans charter schools’ struggle to meet special education needs

Schoool district was required under IDEA to continue IEPs for special education student and to act as her LEA beyond her twenty-first birthday

A three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) has ruled that a special education student is entitled to have the school district issue annual individualized educational plans (IEP), and serve as her local education agency (LEA) during her three year compensatory education period, even though she had reached  her twenty-first birthday. The panel held that she was entitled to such services as equitable relief under the Individuals with Disabilities Education Act (IDEA) for prior violations of IDEA. Even though the student no longer enjoyed a statutory right to a free appropriate public education (FAPE) under IDEA, the panel found, she was still entitled to such services rather than simply a monetary award of compensatory education. It upheld the federal district court’s order that for the  duration of her three years of compensatory education the school district was required annually to reevaluate the student, provide her with annual individualized educational plans (IEP), and serve as her local education agency (LEA).

Ferren C., who suffers from a number of disabilities including autism, lives within the boundaries of the School District of Philadelphia (PSD). In resolution of a legal dispute about PSD’s failures to provide her with an adequate special education, PSD established a trust fund in excess of $200,000 to provide Ferren with three years of compensatory education past her twenty-first birthday. She subsequently attended a private school from 2004 to 2007. During the 2006-2007 school year Ferren turned 21. It was the last year PSD issued an IEP. Although PSD had agreed with the private school that Ferren should graduate in 2010, and agreed to provide the funding, PSD refused to issue IEPs and act as Ferren’s LEA.

The parents requested and received a due process hearing. The hearing officer (HO) ruled PSD was not required to provide Ferren with an IEP during the three-year compensatory education period. An administrative appeals panel upheld the HO. The parents appealed that decision to a federal district court, which found in favor of the parents, ordering PSD to reevaluate Ferren annually duration of her three years of compensatory education, provide her with annual IEPs, and serve as her LEA.

The Third Circuit panel determined that the compensatory education awarded by district court, i.e., issuing IEPs and serving as LEA, is authorized by IDEA, as it aimed to put Ferren in the position she would have been in but for PSD’s prior failures to provide her with a FAPE as required by the statute. Analogizing the present case with the U.S. Supreme Court’s decisions in Burlington v. Massachusetts, 471 U.S. 359 (1985), in which the Court first recognized the right of parents under IDEA to reimbursement or private school placement, and Forest Grove School District v. T.A., __ U.S. __, 129 S. Ct. 2484 (2009), in which it extended that right to parents whose child never attended public school, the panel explained that IDEA does not foreclose "the type of equitable award provided to Ferren by the District Court."

Lastly, the panel stressed that a "money-only" type of award would leave Ferren with a hollow victory of the kind the Supreme Court sought to avoid in Burlington. It stated: "Compensatory education is ‘a remedy to compensate [] for rights the district already denied. ‘…   If an individual was deprived of his or her right to an adequate FAPE, and by extension an IEP, prior to the age of twenty-one, it follows that the student could only be fully compensated by an award of compensatory education that contains the elements of a FAPE that she was previously denied."

Ferren C. v. School Dist. of Philadelphia, No. 09-1587 (3d Cir. Jul. 13, 2010)

[Editor's Note:  The Third Circuit panel focused on Burlington's standard, finding the relief granted here appropriate because it furthers IDEA's purpose.  " Ferren’s specialized education at [the private school] will address her ‘unique needs and prepare [her] for further education, employment, and independent living.’ 20 U.S.C. § 1400(d)(1)(A). The equitable relief will further ensure that Ferren’s educational rights under the IDEA are enforced and that she receives the education to which she was statutorily entitled. Id. at § 1400(d)(1)(B)."  The purpose of the monetary award would be frustrated if Ferren could not remain at the private school.

In its Forest Grove opinion, relied on by the Third Circuit panel here, the Supreme Court stated: “It would be particularly strange for the Act [IDEA] to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.” A summary of the Supreme Court’s opinion is available below.]

NSBA School Law pages on Forest Grove Sch. Dist. v. T.A.

D.C. and 18 states named finalists in second round of RTTT competition

The U.S. Department of Education (ED) has announced that the District of Columbia (DC) and 18 states are finalists in the competition for a share of $3.4 billion in the federal “Race to the Top” (RTTT) funds, reports the Washington Post. Meanwhile, 17 states were eliminated. The finalists are: Arizona, California, Colorado, DC,  Florida, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island and South Carolina.  The RTTT competition has fueled momentum among states for making student achievement a significant factor in teacher evaluations and pay, easing limits on public charter schools and embracing national standards.

On the other hand, it is increasingly unlikely Congress will provide a bailout for schools this summer to prevent teacher layoffs and program cuts amid local budget troubles. “I have a suspicion we’re going to have a deadlock for the next two years,” said Jack Jennings of the Center on Education Policy.

ED Secretary Arne Duncan, in remarks prepared for the Race to the Top announcement at the National Press Club Tuesday afternoon, said the administration is focusing more attention than ever on the lowest-performing schools. He praised local unions for teaming with school boards on experiments in performance pay and evaluation. “We’re building on what we know works — and doesn’t work,” Duncan said in the advance text. “And while there are still some honest policy disagreements among key stakeholders, there is far more consensus than people think.”

Source: Washington Post, 7/27/10, By Nick Anderson

[Editor's Note: ED's press release on the announcement, which includes links to Secretary Duncan's remarks and his letter to the governors, is available at first link below.

In June,Bloomberg Businessweek reported that the RTTT program attracted three fewer states to the competition’s second round amid resistance to changes in teacher pay and tenure rules and states’ fears that the federal government may exert too much influence over its schools. A summary of the article is available at the second link below.]

ED RTTT press release

NSBA Legal Clips archive on RTT second round applications

California State Board of education improperly approved charter school without a finding that the instructional services of statewide benefit could not be provided through locally approved charters

The California Court of Appeals, First Appellate District, has ruled that the California State Board of Education (CBOE) improperly approved Aspire Public Schools (APS) for a statewide charter under the state’s Charter School Act (CSA) because CBOE failed to make a finding that  the “instructional services of statewide benefit” could not be provided through locally approved charter schools. In addition, the appellate court ruled: (1) CBOE failed and refused to enforce the conditions of approval imposed on APS’ charter and should be compelled to do so; and (2) CBOE used policies and procedures in connection with its consideration of statewide charter petitions that have not been adopted in accordance with California’s Administrative Procedure Act.

After CBOE  approved APS’ petition to operate a statewide charter school, the California School Boards Association (CSBA) led a coalition that filed suit in Alameda County Superior Court (trial court) against CBOE seeking to overturn CBOE’s approval of APS’ petition to operate a statewide charter school. The trial court dismissed CSBA’s, suit holding that the CSA, which authorizes CBOE to grant statewide charters, requires CBOE to find the proposed charter school will provide “instructional services of statewide benefit,” but does not require the CBOE to find, in addition, that the statewide benefit could not be provided through locally approved charters.

The appellate court reversed the lower court’s decision on all of CSBA’s claims. Noting that CSA was “not a model of clarity,” it acknowledged the statute’s language was conducive at least facially to CBOE’s construction,”a finding that ‘the [applicant] will provide a statewide benefit that cannot be achieved through a charter that only allows the [applicant] to operate in one location.’ But this interpretation necessarily presumes that a charter school entity can be restricted to operating in ‘only . . . one location.’ As has been noted, the CSA neither prohibits nor discourages a charter school from operating in multiple school districts under local charters.” Regarding CBOE’s assertion that once it has made a finding that a charter school provides “instructional services of statewide benefit” the statute’s requirements have been satisfied, the appellate court countered, “nothing in the statute‟s plain language, in the statutory scheme of the CSA, or in the legislative history of section 47605.8 that suggests this was what the Legislature intended.”

The appellate court, therefore, concluded ”the plain language of the statute requires the State Board to find, before approving a statewide charter, that the applicant‟s instructional services will provide a statewide benefit, and that the benefit is one that cannot be provided under local charters.” It added, ”This interpretation is also reinforced by the statutory scheme, the structure of which reflects a preference for locally chartered schools.” It determined that CSA’s statutory scheme reflected the legislature’s intent to encourage the creation of charter schools within local school districts with local oversight while permitting for limited exceptions. The appellate court found the provision in the CSA authorizing CBOE to allow ”the establishment of a charter school with no geographic restrictions only if it offers instructional services of a statewide benefit and only if that benefit would be frustrated if it operated its schools under district (or county) charters” as one of those limited exceptions. As a result, it held nothing in the record supported CBOE’s contention that authorizing provision of CSA was “adopted so that schools could avoid the requirements of local chartering.”

The appellate court found that record made it clear that the only finding made was the one, i.e., of ”statewide benefit,” that CBOE argued was required by CSA. It pointed out that as a result CBOE ”did not have before it any evidence on the question of whether Aspire‟s ‘statewide benefit’ could be provided under local charters,” and, therefore, failed to make the second finding that is a required under the two step analysis set forth in CSA provision’s statutory language.

California Sch. Bd. Ass’n v. State Bd. of Educ., No. A122485 (Cal. App. Ct. Jul.26, 2010)

[Editor's Note:  The California School Boards Association reports on the decision at the first link below.  Reporting on the appellate court decision, the San Francisco Chronicle quoted attorney Deborah Caplan, who represented the CSBA coalition, as saying  the ruling would help to make charter schools "accountable to local needs and to the local student population." She added one purpose of the 2002 law was to protect students at so-called satellite campuses who had been left in the lurch when a charter headquartered in another county ran into financial trouble.  California Deputy Attorney General Benjamin Riley, who represented the state Board of Education, said the board was evaluating its options, which include an appeal to the state Supreme Court. The article is available at the second link below.

A summary of the trial court ruling, which includes links to background on the suit and California's charter school legislation is available at the third link below.]

CSBA pages on appellate court ruling for CSBA Legal Alliance

Source: San Francisco Chronicle, 7/27/10, By Bob Egelko

Under Missouri law unaccredited school districts must pay tuition of its students who choose to attend accredited school in adjoining district

The Missouri Supreme Court has ruled that the unambiguous mandatory language of a state statute requires unaccredited school districts to pay the tuition of its students who choose to attend an accredited school in an adjoining district. A number of parents, who live within the boundaries of the transitional school district of the City of St. Louis (TSD), had enrolled their children in Clayton School District (CSD) pursuant to personal tuition agreements with CSD. However, after TSD lost its accreditation, the parents requested CSD charge TSD for the tuition for the upcoming school year as required by the state statute, § 167.131, RSMo 2000. CSD denied the request. The parents filed suit in state court against CSD and TSD seeking a declaratory judgment that because TSD had lost its accreditation, it was required to pay the children’s tuition to attend school in CSD. The parents also sought restitution for tuition already paid.

CSD and TSD filed separate motions for summary judgment. TSD argued that § 167.131 did not apply to it because the enactment of SB 781 exclusively governs student transfers in the district. CSD’s motion essentially restated TSD’s. It also argued that the “Safe Schools Act” gives school districts discretion to admit non-resident students from unaccredited districts under § 167.131 and that because CSD refused to accept the children pursuant to that statute, their claims were foreclosed. The trial court, without providing a specific rationale, granted both TSD’s and CSD’s motions. Although the Missouri Court of Appeals issued  an opinion, it transferred the case to the Missouri Supreme Court pursuant to Rule 83.02 because of the general interest and importance of the issues in this case.

The supreme court reversed the trial court’s decision and remanded the case. It noted that § 167.131 ”was specifically written to apply to the factual scenario of this case.” It rejected TSD’s contention that the provision was intended to apply only to situations where an individual school in a district loses accreditation, not a district-wide loss of accreditation.  ”This Court holds that § 167.131′s unambiguous mandatory language requires unaccredited school districts to pay the tuition of its students who choose to attend an accredited school in an adjoining district.”

The supreme court also rejected the argument that§ 167.131 is in conflict with SB 781. It noted that SB 781 was enacted to implement a federal desegregation order by providing for the voluntary transfer of African-American students living within TSD’s boundaries to schools in CSD and voluntary transfers of white students from CSD to magnet schools. It rejected the argument that tension between the provisions required that SB 781 preempt § 167.131, noting in a footnote, “The policy considerations and mandates regarding public schools and public school funding are particularly well-suited for the state legislature and not the courts. For that reason, this Court will adhere to the express language of the statutes and not make an assumption that the legislature did not intend § 167.131 to apply to the St. Louis City school district. It could have easily done so when it enacted the legislation to enforce the desegregation of the St. Louis city schools.”

Lastly, the supreme court rejected the parents’ claim for restitution for past tuition payments to CSD.  It pointed out that the tuition agreements contained no contingency permitting the parents to stop paying their children’s tuition if the St. Louis school district lost its accreditation.  The court, therefore, concluded: “The terms of their contract are unambiguous and must be enforced as such.”

Turner v. Sch. Dist. of Clayton, No. SC90236 (Mo. Jul. 16, 2010)

[Editor's Note: In 2008, the Missouri Supreme Court upheld the Missouri State Board of Education's (MBOE)  decision to declare the St. Louis Public Schools (SLPS) unaccredited and handing power to govern the school district over to an unelected school board appointed by MBOE. A summary of the opinion is available below.]

NSBA School Law pages on Board of Educ. of the City of St. Louis v. Missouri State Bd. of Educ.