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Second Circuit rules that parents were not entitled to private school tuition reimbursement under IDEA based on the parents’ assertion the school district was unlikely to implement the student’s IEP at the school he was assigned to by the school district

M.O. v. New York City Dep’t of Educ., No. 14-1473 (2d Cir. Jul. 15, 2015)

Abstract: A U.S. Court of Appeals for the Second Circuit three-judge panel has ruled that parents of a special education student were not entitled to tuition reimbursement under the Individuals with Disabilities Education Act (IDEA) for unilateral placement of the student in a private school based on the parents’ assertion that the school district was unlikely to implement the student’s individualized educational plan (IEP) at the school he was assigned to by the school district. The panel held that while R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012), allows a parent to challenge a school district’s placement based on that schools ability to provide the services mandated in the IEP, a parent cannot succeed by speculating that the school district will not implement the IEP.

Facts/Issues: The parents of a special education student filed a reimbursement action for a unilateral private placement under the IDEA, challenging the adequacy of the public school proposed by the school district for the placement of their child. In September 2011, the parents initiated their reimbursement action for the student’s unilateral placement in the Lowell School by filing a due process complaint and request for a hearing before an independent hearing officer (IHO). The due process complaint alleged that the student’s IEP was substantively inadequate. The due process complaint also challenged the adequacy of the district’s proposed placement schools.

The IHO determined that the student was not denied a FAPE and that the parents were therefore not entitled to a reimbursement for their unilateral placement of the student in the Lowell School for the 2011-2012 school year. The IHO rejected the parents’ challenges to the substantive and procedural adequacy of the IEP and found that the school district had demonstrated the appropriateness of its recommendation that the student repeat the second grade in a 12:1:1 special placement classroom in a community school. The IHO, however, did not separately address the parents’ challenges to the adequacy of the district’s proposed placement schools.

The parents appealed the decision to a State Review Officer ( SRO). The SRO affirmed the IHO’s decision and dismissed the parents’ complaint. The SRO observed that, under the second Circuit’s decision in R.E., the sufficiency of the district’s offered program is to be determined on the basis of the IEP itself and that the parents rejected the IEP and enrolled the student at the Lowell School prior to the time that the school district became obligated to implement the student’s IEP. The SRO, therefore, found that “the district did not have an obligation, under these factual circumstances, to present evidence that it provided special education services in conformity with the student’s IEP.” Even having assumed that the student had attended P.S. 159, the SRO found that there was no evidence in the record to suggest that the district would have deviated from D.O.’s IEP in a material or substantial way.

The parents filed an action challenging the SRO’s decision in federal district court. The district court rejected the parents’ argument that the DOE was required to present evidence to the IHO on P.S. 159’s ability to implement D.O.’s IEP. It reasoned that “[i]t would be inconsistent with R.E. to require the [the school district] to proffer evidence regarding the actual classroom [the student] would have attended, where it had become clear that [the student] would attend private school and not be educated under the IEP.”

Ruling/Rationale: The Second Circuit panel affirmed the lower court. After noting it would give the SRO’s decision due deference, but not “simply rubber stamp” it, the panel addressed the school district’s assertion that “under [the Second Circuit’s] decision in R.E., a child must physically attend a proposed placement school before challenging that school’s ability to implement their IEP.” It acknowledged that a number of district courts within the Second Circuit “… R.E. broadly enough to exclude all prospective challenges to a child’s proposed placement.”

However, the panel said, “Because R.E. does not foreclose all prospective challenges to a child’s proposed placement school, we find it necessary to clarify the proper reach of our holding in R.E.” It agreed with the school district that it would be “speculative to conclude that a school with the capacity to implement a given student’s IEP will simply fail to adhere to that plan’s mandates.” At the same time, the panel pointed out that it would “not be speculative to find that an IEP cannot be implemented at a proposed school that lacks the services required by the IEP.”

Nevertheless, the panel determined that “the due process complaint’s challenges to P.S. 1596 were not of the type permitted by R.E., [i.e.,] prospective challenges to P.S. 159’s capacity to provide the services mandated by the IEP.” Instead, it found the challenges were substantive attacks on the student’s IEP that were couched as challenges to the adequacy of the school the district placed the student at. As a result, the panel concluded the challenges “do not relate to P.S. 159’s capacity to implement the IEP; they relate to the appropriateness of the IEP’s substantive recommendations.”

The panel stated: “Because the substantive adequacy of the IEP must be determined by reference to the written IEP itself, the school district did not have the burden to produce evidence demonstrating P.S. 159’s adequacy in response to these arguments.” It, likewise, found that the parents’ other challenge, based on the mother’s visit to P.S. 159 and testimony that the placement was inappropriate, was related to the substantive adequacy of the student’s IEP, which must be assessed by reference to the written plan itself, and did not trigger a duty on the part of the school district to provide evidence regarding P.S. 159’s adequacy.

The panel stressed that while the “SRO and district court appear to have concluded that the school district was not required to produce evidence on the adequacy of P.S. 159, based on an erroneous determination that R.E. requires a child physically to attend a proposed placement school before challenging that school’s ability to implement the child’s IEP,” it was free to “affirm the judgment on any basis that is supported by the record.” Rejecting the district court’s and SRO’s rationale for holding that the parents were not entitled to tuition reimbursement under IDEA, the panel, instead, based its affirmance of the decision to deny reimbursement on the ground that “the due process complaint’s challenges to P.S. 159 were in fact substantive attacks on D.O.’s IEP rather than prospective challenges to P.S. 159’s capacity to provide the services mandated by D.O.’s IEP.”

M.O. v. New York City Dep’t of Educ., No. 14-1473 (2d Cir. Jul. 15, 2015)

[Editor’s Note: In October 2012, Legal Clips summarized the Second Circuit’s panel decision in R.E. holding that in determining whether an individual education program (IEP) has provided a disabled student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), the adequacy of an IEP may only be evaluated prospectively as of the time the IEP is drafted, and, thus, “retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered” in a due process hearing. However, the panel rejected the rigid “four corners” rule that would prevent a court from considering evidence that explains in detail the written terms of the IEP.]



Parents’ suit claims Pennsylvania middle school wrestling coach encouraged bullying, sexual assault of son

The parents of a student at Trafford Middle School (TMS) have filed suit against Penn-Trafford School District (PTSD), says WTAE Action News 4, alleging that the student was bullied and sexually assaulted at wrestling practice during the 2014-15 school year. The suit claims TMS’s wrestling coach egged on another student who was bullying their 13-year-old son, then told the teen to “toughen up” and “stop acting like a dead fish.”

The parents also claim that their son was the victim of “oil checking.” The suit describes oil checking as “extremely painful, insulting and humiliating and constitutes sexual assault.” According to the lawsuit, the family is suing the school district because the district assigned the accused coach to investigate the bullying allegations.

PTSD Superintendent Dr. Matthew Harris issued a statement,  which said: “Penn Township Police Department and the district attorney’s office investigated the incident and have taken all appropriate steps to protect the districts students from any ongoing inappropriate behavior.” Harris noted the coach has resigned, but added that it was not the result of the lawsuit.

Source: WTAE Action News 4, 8/28/15, By Marcie Cipriani

[Editor’s Note: In August 2015, Legal Clips summarized an article in the Daily Press reporting that a suit alleging that Hesperia Unified School District (HUSD) and Oak Hills High School (OHHS) officials failed to address sexual hazing issues on the school’s football team is scheduled to go to trial early next year. The suit, which is pending in San Bernardino County Superior Court, involves claims by the mother of a football player at OHHS on his behalf, accusing HUSD district and OHHS officials of covering up the “sexual beatings.” ]






Nebraska district settles suit over teachers being told by principal to contact parents before reporting suspected child abuse

The North Platte Bulletin  reports that while publicly stating that two teachers acted properly in reporting suspected child abuse without first contacting parents, the North Platte school board settled the suit that the teachers filed against North Platte School District (NPSD) and the complaint filed with the Nebraska Commission of Industrial Relations. The North Platte Board of Education voted for a settlement that makes clear the school district will not require teachers to check with parents before reporting suspected child abuse/neglect.

The board read a statement acknowledging that the teachers did, in fact, follow district policies and procedures. The statement also confirmed that any employee filing a grievance through the teacher’s union should not suffer reprisals for doing so.

On March 24, Madison Middle School Teacher Christie Copper and Madison Guidance Counselor Steve Spiehs told police that a boy who appeared to be abused was at the school. They also informed the Department of Health and Human Services through the Child Abuse Hotline. Later that day, McMurtry emailed the employees who were involved and said “In the future…. If there is not an immediate threat to the student then we will call parents and share our concern. We need to let them know that protocol will lead us to alerting (police and HHS) at that point.”

McMurtry said he’d talked to the boy’s father on the phone who was upset that he’d been notified of the situation by the police, not by the school. But Copper and Spiehs said they were following state law, and if school employees don’t make a proper report, they can be charged with a misdemeanor crime, and/or lose their teaching certificate. They asked McMurtry to retract his email directive. McMurtry refused, and the dispute escalated.

North Platte School Superintendent Larry Ramaekers told Copper that the email was proper and would not be retracted. Within three weeks, the North Platte Education Association (NPEA) got involved. In a grievance, they also asked the school district to retract McMurtry’s email.

NPEA attorney Scott Norby said the settlement agreement statement is clear that:

• Administrators are, in fact, aware of and support the process followed by Copper and Spiehs.

• The school district withdraws the administration’s email directing staff to contact parents before reporting suspected child abuse/neglect unless the child is in immediate danger.

• The actions of Copper and Spiehs in contacting authorities and district administration were in compliance with the school board’s policy and procedure.

• The school board expects and supports staff to report circumstances where they have reasonable cause to believe that a child has been subjected to child abuse or neglect.

• The school board pledges its support of staff in making suspected abuse/neglect determinations.

• The school board agrees that no reprisals of any kind shall be taken against any employee who utilizes the grievance process.

Source: North Platte Bulletin, 8/12/15, By George Lauby

[Editor’s Note: In June 2015, Legal Clips summarized a story from WOWT News reporting that NPEA has filed a lawsuit in state court against North Platte School District (NPSD), which alleges that two teachers, who had reported child abuse, were told that in the future they needed to contact the parents first. NPEA asked the school district to rescind what it believes is the district’s policy and that so far the NPSD and the school board have refused to do so.]

Sixth Circuit dismisses former employee’s First Amendment retaliation claim and Title VII religious discrimination claim

Haji v. Columbus City Sch., No. 12-3520 (6th Cir. Jul. 16, 2015)

Abstract: A U.S. Court of Appeals for the Sixth Circuit three-judge panel has ruled that a former employee, who is Muslim, was not retaliated against by an Ohio school district’s officials for exercising his First Amendment free speech rights or retaliated against by those same officials on the basis of his religious beliefs in violation of his Title VII rights. It concluded that even though his protected activity was a motivating factor for terminating his employment with the school districts, officials would have made the same decision to terminate him in the absence of the protected activity. The panel also rejected his Title VII retaliation claim, holding that the employee had failed to present evidence that supported an inference of discriminatory motive in the absence of evidence that similarly situated non-Muslim employees were treated more favorably.

Facts/Issues: Abdurahman Haji, who is a Muslim of Somalian extraction, was an imam at a local mosque. Because of his involvement with Somali community and bi-lingual language skills, Principal Colon Lewis of the Mifflin Alternative Middle School (MAMS), which had a large Somali student population, told Haji about a job opening for an instructional assistant at Mifflin. Haji applied and was hired by Lewis in November 2005 to work as an instructional assistant in Melissa Ellingwood’s class in English as a Second Language (ESL).

Haji’s normal working hours were 7:30 AM to 2:30 PM. Lewis agreed that Haji could leave early on Friday afternoons to lead prayer at the Mosque at the time Haji was hired.  From the beginning of his employment in November 2005 to April 2008, Haji left early each Friday to lead prayers without signing out, as normally required. Haji typically returned to school after prayers, but if his prayer service ran long, he would not return.

In late 2007, Haji gave a lecture at the Mosque that was recorded and uploaded to YouTube. The video depicted Haji identifying himself as a Mifflin employee and voicing his concern that the school was exposing Muslim students to the polytheistic belief system of Greek mythology. In February or March 2008, Lewis and other school officials became aware of the video.

In response to reports that Haji portrayed Columbus City Schools (CCS) in a negative light, school officials reviewed the video and spoke to Haji. CCS claims that, aside from these meetings, “[n]o further action regarding the video was taken by the Board of Education or any of its employees, and Mr. Haji was never disciplined as a result of the video.”

Haji was disciplined with a one-day suspension on February 25, 2008, due to two unrelated incidents that occurred in February 2008. CCS t held a disciplinary hearing, at which Labor Relations Director DeWayne Howard presided. Howard suspended Haji for one day without pay for being “insubordinate and contributing to a hostile work environment.” In Spring 2008, Ellingwood complained to Lewis that Haji’s early Friday departures were interfering with his job duties.

On April 23, 2008, Principal Lewis, Welcome Center Director Woodward, and Mira Wright, the human-resources director who is responsible for approving religious leave, held a meeting with Haji in which they told him that he could no longer leave campus to attend Friday prayers without obtaining prior permission. On April 25, Haji left school without permission. Lewis observed Haji and told him that he could not leave, but Haji nonetheless left for the Mosque. On May 30, Lewis again saw Haji leave without obtaining prior permission.

Lewis arranged with Wright to hold a disciplinary hearing with Haji on June 5, 2008. Howard presided over the hearing and recommended termination for neglect of duty, insubordination, and absence from work without leave. The Board of Education ratified that recommendation on August 5, 2008.

Haji filed a complaint with the EEOC, which issued a right-to-sue letter. He then brought suit against CCS, the board and a number of school officials. He raised a First Amendment retaliation claim under § 1983, a Title VII retaliation claim based on religious discrimination, and a number of state law claims. The district court granted summary judgment to the defendants on all claims. Haji appealed only as to the First Amendment retaliation claim under § 1983 and the religious-discrimination claim under Title VII against CCS and its board.

Ruling/Rationale: The Sixth Circuit panel affirmed the district court’s grant of summary judgment. Addressing the First Amendment retaliation claim, it stated that in order for Haji to establish a prima facie First Amendment retaliation claim, he must show:

(1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by his protected conduct.

It noted that CCS conceded that Haji had satisfied the first two prongs of the test and, therefore, its analysis would focus on the causal connection prong.

The panel began by pointing out: “Temporal proximity between ‘an employer’s knowledge of protected activity and an adverse employment action’ can establish prima facie causal connection by itself.” It agreed with Haji that the relevant time period was from March 2008, when school officials learned of the YouTube video, to June 5, 2008 when they recommended to the board that he be terminated. It concluded that the “three-month March-to-June period between discovery and termination falls within the temporal-proximity period that would permit a jury to infer prima facie causation.”

The panel also explained that “[e]ven if temporal proximity alone were insufficient to permit a causal-connection inference, Haji could still satisfy his prima facie burden by ‘coupl[ing] temporal proximity with other evidence of retaliatory conduct to establish causality.’” It agreed with Haji that rescission of the early Friday leave agreement constituted other evidence of retaliatory conduct to establish causality.

However, the panel pointed out that CCS could escape liability even if Haji established that his protected conduct was a motivating factor behind his termination, if CCS could show “that it would have made the same employment decision even if the employee had not engaged in the protected activity.”

The panel found that rescission of the leave agreement “would not be retaliatory if [CCS] present[ed] evidence of sufficient nonretaliatory reason to rescind the agreement.” It concluded CCS had satisfied that burden because Ellingwood had complained to Lewis that Haji’s early Friday departures were interfering with his job duties. The panel, therefore held: “It is a sufficient, non-retaliatory reason to rescind permission for an employee to engage in otherwise impermissible conduct in response to a direct supervisor’s complaint that the conduct directly interfered with the employee’s job duties.”

Turning to Haji’s Title VII claim, the panel stated that in order for Haji to establish a prima facie claim he must show: “(1) is a member of a protected group, (2) was subject to an adverse employment decision, (3) was qualified for the position, and (4) was replaced by a person outside of his class.” CCS conceded that Haji satisfied the first three elements. It, therefore focused on the fourth McDonnell Douglas factor, which requires the “indispensable comparative evidence” that is necessary to prove discriminatory intent.

The panel pointed out that Haji had not provided any evidence that the CCS treated non-Muslim employees more favorably, but, instead, argued that he was “subjected to a pattern of religious discrimination in the months that preceded his termination.” It agreed that such evidence could substitute for comparator evidence. However, the panel concluded that “additional evidence” that Haji submitted “does not support an inference of discriminatory motive.”

The panel found the evidence fell short for four reasons:

First, Haji contends that he was disciplined in February for communicating with Muslim parents about the behavior of their children that he considered to be discordant with Islam. This argument fails because he was not being disciplined for being a Muslim but rather for failing in his duty as a liaison between parents and the school by causing conflicts.

Second, Haji alleges that it was religious discrimination for the Defendants to investigate his YouTube video because similar public criticism by a Catholic priest would not have triggered an investigation. But he does not offer any evidence that Catholic (or non-Muslim) critics were treated more favorably.

Third, Haji contends that Howard’s position as the hearing officer for his termination leads to an inference of discrimination because Howard had previously suspended him for a discriminatory reason in February. But, as stated above, Haji has not demonstrated that he was disciplined for a discriminatory reason in February.

Finally, Haji argues that temporal proximity between his suspension and termination is evidence of discriminatory motive. But temporal proximity is evidence of unlawful motive only in retaliation cases, not disparate-treatment cases. Additionally, there is no temporal proximity because the Defendants knew that Haji was a Muslim when they hired him in November 2005 and did not terminate him until June 2008.

Finding that Haji failed to present either comparator evidence or “additional evidence” of discrimination, the panel held he had failed to establish a prima facie case of religious discrimination.

Haji v. Columbus City Sch., No. 12-3520 (6th Cir. Jul. 16, 2015)

[Editor’s Note: In September 2011, Legal Clips summarized an article in  the Examiner reporting that Margaret Reyes, a second-grade teacher at Hillcrest Elementary School, who had successfully sued San Francisco Unified School District in 2006 for employment discrimination, had filed suit against SFUSD in federal court, alleging that school officials were retaliating for the previous lawsuit. Reyes’ suit claimed that she was baselessly accused of various misdeeds, including allowing a student outside without a jacket and mishandling paperwork. She said she also was placed under disciplinary review. Reyes alleged the harassment was based on her gender, age and religion, as well as the 2006 lawsuit that she had filed in San Francisco Superior Court after a principal, Allen A. Lee, made a comment about her religion. That suit was settled for $60,000.] 







Service dogs in classroom present challenge for districts in New York state

School districts in New York state are confronting the issues that come with service dogs in the classroom, says silive.com.  For example, the New York City Department of Education (NYCDE) acknowledges it must follow the law and make accommodations for a child with special needs whose individual education plan (IEP) requires the child have a service dog in class. It, however, has no policy for how teachers and administrators should handle the animal during the school day.

Among the challenges that service dogs present:

Who cares for the dog during the school day?

Who is responsible for feeding and walking the dog?

What happens if another child is allergic to the dog?

What happens if the dog becomes aggressive toward another child or teacher?

According to the New York State School Boards Association (NYSSBA), these questions are a gray area for administrators. NYSSBA has recently issued a brief on the issue.

The brief states:

Service animals can help people with a variety of disabilities, such as hearing impairments, physical handicaps and sight impairments. Service animals often develop strong bonds with their owners, and a student with a disability may request the companionship of his or her service animal in school. However. . . the presence of the animal could trigger allergic reactions or anxiety among other students, some of whom may also have a disability and rights under law. Therefore, a student who requests the presence of a service animal in school presents a complicated issue that requires legal counsel.

According to the U.S. Department of Justice Civil Rights Division Disability Rights section, service animals are defined as “dogs that are individually trained to do work or perform tasks for people with disabilities.” The Americans with Disabilities Act (ADA) guidelines also say that “allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.” Under the guidelines, service dogs must also be “leashed, harnessed or tethered,” and “staff is not required to provide care and food for the animal.”

While the NYCDE is required to comply with the determined need for a service dog, “therapy” or “comfort” animals are not covered by the same federal regulations. While they sometimes can be both, therapy dogs are usually not assistance or service animals.

Source: silive.com, 8/27/15, By Diane C. Lore

[Editor’s Note: NYSSBA’s “Service animals in schools: Recommendations for school districts,” points out that while service dogs may have a positive effect on a disabled student, “a service animal may not be necessary for a student’s success in school, and reliance on the animal could interfere with the student’s ability to develop skills of independence.”

In September 2013, Legal Clips summarized an article in the Athens Messenger reporting that Athens City School District had come to an agreement with the parents of an autistic student, who uses a service dog, as to the student’s placement. The student was barred from attending the Morrison-Gordon Elementary School because of a teacher’s severe allergy to dogs.

Also in September 2013, Legal Clips summarized an Associated Press (AP) article in the San Francisco Chronicle reporting that the American Civil Liberties Union of Indiana (ACLU-IN) had filed suit in federal court against the Evansville-Vanderburgh School Corporation (ECSC) on behalf of two disabled students over a policy that restricts the use of service dogs in school. The suit was seeking a preliminary injunction to admit the service dogs, alleging that barring the animals violated the ADA.] 

ACLU letter warns Nebraska district not to require employees to sign loyalty oath

According to the Nebraska Radio Network,  the American Civil Liberties Union of Nebraska (ACLU-NE) has sent the Hastings Public School District (HPSD) a letter warning the school district that it cannot compel its employees to sign a loyalty oath. The oath is required by state law and currently being enforced by HPSD.

Under the state law, teachers must pledge that they believe in the United States of America and that they acknowledge a duty to teach students that its policies and institutions make it the finest country in the world. The ACLU-NE’s letter says that despite the state law requiring the oath, the United States Supreme Court has ruled employees cannot be forced to sign such pledges.

HPSD Superintendent Craig Kautz insists that the district is simply complying with state law and that the district’s attorney advises it is still valid. However, Kautz says no teacher will lose their job for declining to sign the pledge.

ACLU-NE attorney Amy Miller says a number of teachers have complained about the requirement. In her letter to HPSD, Miller wrote that employees love their jobs, but “they have deeply held beliefs that do not permit them to sign an outdated McCarthy era pledge.”

This is the first year HPSD has asked employees to sign the pledge.

Source: Nebraska Radio Network, 8/17/15, By Brent Martin

[Editor’s Note: In Baggett v. Bulitt, 377 U.S. 360 (1964), the U.S. Supreme Court held that Washington state statutes requiring teachers and state employees to take loyalty oaths as a condition of employment were unconstitutionally vague.]

Iowa court dismisses student’s suit claiming district violated his free speech rights when it disciplined him for posting “racially charged” tweet

The Times-Republican reports Marshall County District Court Judge Michael Moon has  dismissed a suit  brought by former Marshalltown High School (MHS) student Jordan Smith against Marshalltown Community School District (MCSD). Smith’s suit alleged MCSD violated his free speech rights under Iowa Code and the Iowa Constitution when it suspended him from playing in three athletic games because he posted a “racially charged” tweet.

The tweet in question said, “I scored two goals for the white boys tonight  #WP.” His  football coach, Aaron Shipley, viewed the message Smith posted on Smith’s Twitter account. Smith’s profile was a photograph depicting him and two MHS students dressed in white. The students made a gesture with their hands in the shape of the letter “W.”

The photograph of Smith was taken on school grounds in May 2014. That day, MHS hosted a spirit day where all students were encouraged to wear white attire.

The meaning of the gesture and message were contested throughout Smith’s July trial. School administrators alleged each referenced “white power.” Smith testified the gesture referred to the color day. While explaining to the court the meaning of his message, Smith, a soccer player, said he used the term “white boys” because people of other races referred to the white players on the soccer team using that label.

Smith sought a declaratory judgment from the court, stating he did not violate the school district’s good conduct policy, which administrators cited in their decision to suspend Smith from athletic participation. In his ruling, Judge Moon noted that school administrators have the authority to circumscribe speech in Iowa schools if they have reason to believe the speech would encourage students to violate lawful school regulations or causes material and substantial disruption.

The judge pointed to the significance of previous racially charged incidents that heightened tension at MHS and in Marshalltown. he added that context matters. “Those incidents, together with the tension existing in the school, provided a reasonable context for administrators to anticipate and forecast future disruptions and to permit them to take necessary precautions,” he said. “School administrators were sensitive to any comment, post, T-shirt, symbol or other manifestation of racial bigotry that could act as a spark to ignite violence in the school.”

In Smith’s case, administrators’ actions were appropriate, Moon said.

Source: Times-Republican, 8/27/15, By Bennet Goldstein

[Editor’s Note: In August 2015, Legal Clips summarized a decision by the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, in Bell v. Itawamba Cnty. Sch. Bd. holding that a Mississippi district did not violate a student’s First Amendment free speech rights when school officials disciplined the student for a video he created and posted online off-campus that contained threatening language directed at two teachers/coaches. The majority’s opinion (there were a number of concurring and dissenting opinions) held that the substantial disruption standard enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969), was controlling even though the student speech in question took place off-campus. Because it determined that the speech was subject to regulation by school officials under Tinker, the majority declined to reach the issue of whether the student could be disciplined based on his speech constituting a “true threat.” ]

Disability advocacy groups file class action suit against Philadelphia district on behalf of limited English proficiency parents of disabled students

According to philly.com, the Public Interest Law Center of Philadelphia (PILC-PA), the Education Law Center of Pennsylvania and Drinker Biddle & Reath LLP have filed a class action suit in federal court against the Philadelphia school district claiming that thousands of parents and their children are illegally denied the opportunity to participate in the special-education process because of limited English ability. The suit alleges, “The District has systematically and with deliberate indifference denied essential translation and interpretation services to LEP [Limited English Proficient] parents of children with disabilities as well as to the children themselves.”

The suit alleges that the school district refuses to sufficiently interpret or provide parents with translated documents in a timely manner. This prevents parents “from participating in meetings and making informed decisions regarding educational placements and services.” Among the facts alleged in the suit:

25,990 families in the district don’t speak English as their first language; About 19,000 of those families have told the district they want their documents in their native language; and, About 1,500 English language learners received special-education services in 2013, along with 1,887 students with Individual Learning Plans who lived in homes where English was not the primary language.

Source: philly.com, 8/25/15, By Regina Medina

[Editor’s Note: PILC-PA’s legal complaint contains five counts alleging violation of federal law.] 



Study says African-American students in 13 southern states are disciplined at higher rates than white students

The University of Pennsylvania has published a study that reports that schools in 13 southern states suspend and expel African-American students at higher rates than white students, says NPR. According to the study from the University’s Center for the Study of Race and Equity in Education (CSREE), schools in those states were responsible for more than half of all suspensions and exclusions of black students nationwide. The 13 states named in the study are Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, Virginia and West Virginia.

Researchers examined more than 3,000 school districts in those states. In 132 of those districts, they found, the suspension and expulsion rates of blacks were off the charts, with suspension rates far greater than their representation in the student body. Shaun Harper, co-author of the study, said, “Blacks are only 24 percent of students enrolled in public schools in those states, yet they are 48 percent of students suspended, 49 percent of students expelled.” He added, “There are 84 districts where blacks were 100 percent of students suspended from school.”

The new study is not the first to document such disparities. Other researchers have argued that schools use zero-tolerance discipline policies to, in effect, criminalize misdeeds such as dress code violations or talking back to a teacher.

Source: NPR, 8/25/15, By Claudio Sanchez

[Editor’s Note: In the executive summary of the CSREE study, titled Disproportionate Impact K-12 School Suspension and Expulsion on Black Students in Southern States,  it states:

Boys were 65% of Black students suspended from K-12 public schools in the 13 southern states. Despite this, when compared to girls from other racial/ethnic groups, Black girls were severely and most disproportionately affected by school discipline policies and practices.

Nationally, Blacks were 45% of girls suspended and 42% of girls expelled from K-12 public schools, which was highest among all racial/ethnic groups. Across the Southern states, Black girls comprised 56% of suspensions and 45% of expulsions, both of which were also highest among all girls. In 10 Southern states, Blacks were suspended most often among girls.

In October 2010, Legal Clips summarized an article in the Palm Beach Post reporting that a national study ranked Palm Beach County No. 1 among 18 large, urban school districts in frequency of suspensions of black male middle school students. The study, published by the Southern Poverty Law Center, reviewed statistics from the year 2006, finding that the school district suspended 53% of its black male middle school students at least once in that year. 

In March 2014, Legal Clips summarized an article 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, says The Chronicle.  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.

The report was unveiled jointly by ED Secretary Arne Duncan and U.S. Attorney General Eric Holder. 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.”] 

New York City Public Advocate files suit against city’s Department of Education alleging that temperatures on special education buses dangerously high

New York City Public Advocate Letitia James has filed suit against  the New York City Department of Education (NYCDE), says CBS New York, alleging that interior temperatures on school  buses carrying special education students are dangerously hot. The suit demands that private contractors be fined if they don’t follow the air-conditioning rules.

According to New York City code, “any bus… transporting a child with a disability to and from a school in the city… shall be air-conditioned when the ambient outside temperature exceeds seventy degrees Fahrenheit.”

City law imposes fines on bus companies that do not comply, but James said the city is not imposing them. “I need DOE to step up and impose fines and penalties on these providers,” James said. “Part of this is mechanical, and part of this is, unfortunately, just turning a blind eye.”

The school buses transport the disabled students year-round, even in the height of the summer. Parents said they have done their own readings, and the temperatures in the buses can get up to 91 degrees Fahrenheit.

NYCDE said 86% of its buses have air conditioning, and it is working on 100% compliance.  It stressed that the standard is that every child whose individual education plan requires air conditioning must receive it. The department said it will correct any problems parents bring to their attention.

Source: CBS New York, 8/19/15, By Alex Silverman

[Editor’s Note: In Decemeber 2012, Legal Clips summarized an article in The Washington Post reporting that a federal court had dismissed a 17-year lawsuit over the transportation of D.C. special education students, giving the city final approval to control its own school buses.]

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