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Federal district court rules parents are entitled to reimbursement for unilateral placement at private school even though school offered FAPE, applying “stay put” to the unilateral placement

N.W. v. Poe, No. 13-07 (E.D. Ky. Nov. 4, 2013)

Abstract: A federal district court in Kentucky has ruled that a school district that provided a disabled student with a free appropriate public education under the Individuals with Disabilities Education Act was nonetheless responsible for reimbursing the parents for tuition at the private school where the parents had unilaterally placed the student.  The court found that the private school was the proper “stay put” placement under IDEA, and that the district was therefore liable for tuition reimbursement.

Facts/Issues: At the time N.W. was three, he was enrolled in the Boone County Schools (BCS) in Kentucky.   BCS determined that N.W. was eligible for special education services under the IDEA, and placed him at St. Rita School for the Deaf in Ohio.  In June 2010, when N.W. was 6, his parents unilaterally enrolled him in Applied Behavioral Sciences (ABS) school, also in Ohio.  BCS convened an Admissions and Release Committee (ARC) meeting on October 21, 2010 to discuss N.W.’s placement options.  Although the parents planned to transition N.W. back to public school, they believed ABS was the best placement at the time.

The parties agreed to a mediated settlement involving tuition, transportation, and attorneys fees’ reimbursement and N.W.’s transition back to the district.  The parties agreed to hold an ARC meeting on or before April 15, 2011 to discuss N.W.’s transition back to public school and that a board certified behavioral analyst would lead the transition team.

The spring ARC meeting did not take place until June 1, 2011.   As well, BCS’s board certified behavioral analyst did not attend that ARC meeting.  Even though BCS expressed its readiness to proceed with the transition plan, the parties to agreed to reconvene at a later date to allow the behavioral analyst to attend.  A follow-up ARC meeting was held in July, where the behavioral analyst presented a transition plan under which N.W.’s placement would be the New Haven Elementary School, a BCS school.  N.W.’s parents raised concerns about the plan, but they did not object to it.  The parties agreed to meet on August 25, 2011 to discuss dates on which to begin N.W.’s transition back to public school.

At the August 25, 2011 ARC meeting, BCS’ behavioral analyst presented a detailed transition plan.  The parents, however, claimed that the plan was not specific enough and ended the meeting.  BCS sent letters to the parents and their counsel requesting further ARC meetings.  At the end of October the parents requested a due process hearing.  The hearing was delayed until March 2012 while the parties engaged in settlement negotiations.

The hearing officer (HO) ruled that BCS had not denied N.W a FAPE and that the ARC team membership complied with the IDEA even though the behavioral analyst was not present at the initial meeting on June 1. Specifically, the HO found that the behavioral analyst was not a statutorily required member and, even if she was, the parents had failed to prove her absence at one ARC meeting caused any actual harm.  The HO also found that BCS’s transition plan did not deny N.W. a FAPE because the failure to provide such a plan is a procedural error and N.W. provided no evidence that BCS’s plan resulted in a denial of educational benefits.  The HO ordered the parties to continue working on a transition plan similar to that proposed by BCS at the August 25, 2011 ARC meeting.

However, the HO concluded that ABS was the “stay-put” placement under IDEA and, as a result, ordered BCS to reimburse the parents for transportation and tuition through end of the 2012 summer session at ABS.

Both parties appealed the decision to the Exceptional Children’s Appeal Board (ECAB).  The ECAB affirmed the HO’s conclusion that BCS had offered N.W. a FAPE.  More specifically, the ECAB held that New Haven was an appropriate placement for N.W. , BCS’ transition plan was adequate in all aspects, and BCS’s ARC team was composed of the required individuals.  Additionally, the ECAB reversed the HO’s “stay-put” order, and held that N.W. was not entitled to compensatory education, tuition reimbursement, transportation costs, or attorney’s fees.  The ECAB ruled that ABS was not the “stay put” placement because the district had never consented to that placement.

N.W.’s parents then filed an appeal in federal district court.

Ruling/Rationale: The district court granted in part and denied in part BCS’s motion for summary judgment on the administrative record.  The court upheld the ECAB’s rulings as to the district’s offering of FAPE, the proposed transition plan, the ARC membership, the placement decision, and the continuum of placement options.  However, it reversed the ECAB’s ruling on “stay-put” and reinstated the HO’s decision that the parents were entitled to reimbursement.

N.W. argued that BCS failed to develop and implement an appropriate IEP because the proposed transition plan was not appropriate.  The court responded that the IDEA does not require a transition plan when a student is moving from one school to another, only when the student is transitioning from school to post-school activities.  Further, N.W.’s argument at most presents a procedural claim, which fails because N.W. did not show that it resulted in any substantive harm or denial of educational benefits.  Even if the transition plan was inadequate, there was sufficient time to address any shortcomings in the plan because N.W. never actually transitioned to the school.

The district court found that that failure to include a required member on the ARC was a procedural error that required substantive harm to be actionable. Assuming without deciding that the behavioral analyst was a required member, the court found that no substantive harm resulted from her absence at the initial ARC meeting.

The court ruled that BCS’s proposed placement was appropriate.  The parents were unable provide any evidence that the public school environment chosen by BCS was not reasonably calculated to provide N.W. with educational benefits.  N.W.s expert witness admitted that she had no knowledge about New Haven’s classrooms and ABS’s owner admitted that she could no offer an opinion about N.W.s placement at New Haven.  The court rejected the parents’ argument that the students in the classroom were less verbally proficient than N.W. because that argument was based solely on the mother’s opinion and disputed by the classroom teacher, citing a Sixth Circuit decision that a parent’s opinion alone is insufficient to prove a FAPE violation.

Despite finding that BCS had offered N.W. a free appropriate public education, the court ordered the district to reimburse the parents for the tuition and costs associated with their unilateral placement of N.W. at ABS.  The court sided with the Hearing Officer’s conclusion that ABS was the appropriate “stay put” placement, reversing the ECAB’s ruling on the “stay put” issue.  Finding that ABS was the “stay put” placement, the court ordered BCS to pay for N.W.’s tuition at ABS through the date of the court’s decision.  The court’s rationale was that “N.W.’s operative placement under which he was actually receiving instruction at the time the dispute arose was ABS,” despite the fact that that placement was arrived at unilaterally by the parents without the school district’s assent.

Interestingly, the court had earlier in its decision bolstered its conclusion that BCS’s transition plan complied with the IDEA with this quote from Park Hill School District v. Dass, 655 F.3d 762, 767-768 (8th Cir. 2011): “IDEA was not intended to fund private school tuition for children of parents who have not first given the public school a good faith opportunity to met its obligations.”

N.W. v. Poe, No. 13-07 (E.D. Ky. Nov. 4, 2013)

[Editor's Note: The court's rationale for ordering tuition reimbursement--a parent's unilateral placement equals stay put equals reimbursement even though the district offered a FAPE-- will likely cause school districts to face increased litigation and huge tuition costs.  

Boone County Schools is appealing this decision.

The Council of School Attorneys has created the COSA IDEA Re-authorization Working Group, comprising approximately 30 school attorneys from across the nation.  The group is preparing recommendations to inform NSBA's advocacy to Congress on needed revisions to the IDEA.  The issue of school district responsibility for unilateral placements is one key area the working group is addressing.

In May 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Third Circuit (DE, NJ, PA, VI) in D.P. v. Council Rock Sch. Dist. holding that a Pennsylvania parent, who unilaterally placed a special education student in a private school, was not entitled to tuition reimbursement on the basis that the school district failed to update the student’s individualized education plan after the student was privately placed.  The panel held that because the parent never requested that the student be reevaluated, or informed the school district that the parent intended to re-enroll the student in public school, the school district had no duty under the IDEA to update the student’s IEP and no responsibility for tuition reimbursement.] 

Five steps school districts should take to protect Cloud data

The Center for Digital Education reported on a CoSN webinar where experts outlined five steps school districts should take to manage their data in the cloud.  The cloud prompts school district leaders to consider where they store their data, why they’re collecting data, and how to keep it private, a panel of experts said in the webinar.  And it’s not easy to keep data private in the cloud because technology and privacy policies change so quickly, said Jim Siegl, technology architect at Fairfax County Public Schools in Virginia, who moderated the webinar for CoSN.  “Is privacy in the cloud possible?” Siegl said. “Yes, but it takes a lot of work and a lot of communication.”

The panel laid out five steps to ensure such privacy:

1. Communicate what data you’re collecting and why.

The U.S. Department of Education’s Chief Privacy Officer, Kathleen M. Styles, suggests that school districts maintain a page on their websites that outlines what data they collect, who has access to it, and why it’s being collected.  This transparency builds trust between school districts and the community, said Aimee Guidera, executive director of the Data Quality Campaign.  If the community doesn’t see the value of collecting data, they will negatively react to the practice. “If it’s all risk and no value add, that’s when fear grows,” Guidera said

2. Find out what data people need.

Ms. Guidera points out that school districts often collect data that’s not valuable because no one uses it.  For every piece of data that’s collected, school districts spend money and take on the risk of guarding its privacy.

3. Make data and cloud decisions based on district values.

Mr. David Rubin, an attorney who’s a member of the Council of School Attorneys, said superintendents and school boards should make these decisions, not teachers.  Many teachers have good intentions when they sign their students up for no charge websites, but they’re putting student data in the hands of a third party without the district’s knowledge.  “Districts are not policing their teachers adequately in terms of signing up for these free apps,” Styles said. Any app or service should go through a procurement, policy and legal review before school districts hand over student data to third parties, Styles said.  And when they do hand it over, the privacy law FERPA requires the third party to:

a) Perform a service that an educator would otherwise do;

b) Use and maintain the education records under the direct control of the school district;

c) Use education data in a manner consistent with the annual FERPA notification of rights that districts send to parents; and

d) Not disclose or use the data for unauthorized purposes.

Styles stressed that third-party providers do not own the student data and that they act at the school district’s direction.

4. Assess your record-keeping practices and clean them up.

Styles believes school districts should take the time to analyze their data collection practices and processes before moving anything to the cloud.  And this analysis could help address problems that the school district previously didn’t handle, Rubin said.  “Oftentimes when you’re dealing with new legal issues, it forces you to confront concerns that really have always existed, but we haven’t paid much attention to,” Rubin said

5. Take an inventory of the records you have in the cloud.

Once school districts address these problems, they may be ready to move data to the cloud. But not before they record where all of their data is located.  If districts don’t take an inventory of the records they have, they’ll have a hard time finding them later when they need them.

Source: Center for Digital Education, 11/13/13, By Tanya Roscorla

[Editor's Note: We thank Mr. David Rubin, a COSA member, for his excellent representation of the interests of school districts and school attorneys.

Another resource on the Cloud available to COSA members is the December 2011 Inquiry & Analysis article: Cloud computing issues for schools.] 

Fifth Circuit hears arguments in University of Texas admissions case on remand from Supreme Court

A U.S. Court of Appeals for the Fifth Circuit three-judge panel heard arguments from the parties in Fisher v. University of Texas at Austin, reports The Texas Tribune.  The case is on remand from the U.S. Supreme Court with instructions to apply the strict scrutiny standard to the university’s admissions policies.  The Supreme Court directed the Fifth Circuit to “assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

Although the overwhelming majority of the university’s students are admitted through the state’s automatic admissions law, which is based on being in the top 10% of your high school class, the remaining applicants are subject to a review that considers a number of socio-economic factors, including race. The Supreme Court found the Fifth Circuit’s previous ruling in Fisher flawed because the judges were too inclined to take the university representatives at their word when they said the consideration of race was a necessary component of the review process that helped the institution meet its diversity goals.

Exactly what those goals are has been a point of dispute.  The university has argued that it is striving for — and has not yet attained — a “critical mass” of diversity.  But Judge Emilio Garza said that the definition of “critical mass” that he has heard has been “tautological, circular or subjective.”  Judge Garza observed that the application of strict scrutiny creates an interesting problem since, under the law, the goals for diversity cannot be defined by a specific number.

Attorney Gregory Garre, representing the university, said the judges could reach the same conclusion they did previously by submitting the record already provided to them to a more thorough review.  “Our view is that the record is sufficient,” he said, after citing increasing rates of minority enrollment since the current practice was adopted.

Fisher’s attorney, Bert Rein, countered that there was no evidence to suggest that the university had exhausted alternative options before turning to race to help improve campus diversity.  He also contended that the current admissions system had done little to improve diversity in UT’s classrooms.

Following oral argument, UT-Austin President Bill Powers said, “To suggest that we have not tried race-neutral admissions policies ignores the university’s history.”  He noted that before allowing the consideration of race, UT-Austin saw minority enrollment stagnate and drop.  If the court rules against the university’s current policy, Powers said, it would be “a setback, not just at the University of Texas, but at universities across the country.”

Edward Blum, the director of the Project on Fair Representation, which has represented Fisher throughout her fight, told reporters that until a conclusion was reached that banned the use of race in admissions decisions, “thousands of Texas high school graduates will be unfairly denied admission to UT simply because they are the wrong race.”

Source: The Texas Tribune, 11/13/13, By Reeve Hamilton

[Editor's Note: In June 2013, Legal Clips summarized the  U.S. Supreme Court's  7-1 decision in Fisher vacating the U.S. Court of Appeals for the Fifth Circuit’s decision upholding the constitutionality of the University of Texas’ (UT) admission policy, which considers race as one of many factors in undergraduate admissions, because “the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and . . . Bakke . . . .”] 

South Carolina parents call for national school boycott Monday in protest of Common Core

According to the U.S. News & World Report, South Carolina Parents Involved in Education (SCPIE) is demonstrating its opposition to the Common Core State Standards with a one day boycott of the state’s public schools to coincide with the beginning of National Education Week.  SCPIE is calling on parents to keep their children out of school Monday and rally at the South Carolina Department of Education.

The group’s website further urges parents across the country to keep their children out of school in protest of the standards, which some see as a federal overreach into state educational policies.  SCPIE issued the following statement:

Common sense tells us Common Core is bad for children, but the school districts and the education authorities in our state are turning a blind eye to the serious flaws in the Common Core Standards.  We are uniting with parents, grandparents and other education stakeholders, across the nation, to let the education establishment know that we are going to protect our children from the perils of Common Core.

SCPIE dubbed the protest “National Don’t Send Your Child to School Day,” and is seeking to start a “revolution in opposition of the Common Core Standards,” according to the group’s website.  A Facebook event for the national protest lists more than 6,000 participants.  Parents in at least 17 states, including New York, Connecticut, Alaska, and West Virginia, indicated that they planned to keep their children out of school on the Monday as a part of the protest.

Opponents charge that the standards are voluntary in name only because the federal government pressured many of the 46 states which adopted the standards both verbally and through financial incentives with Race to the Top grants.  U.S. Secretary of Education Arne Duncan has denied such claims on a number occasions.  “Again, it’s just not intellectually honest,” Duncan said. “Anyone who says that we developed them, or we mandated them or we did whatever, they’re lying.  They’re either lying or they’ve been absolutely misled.”

“It’s fascinating to me that some of the pushback is coming from, sort of, white suburban moms who — all of a sudden — their child isn’t as brilliant as they thought they were and their [schools aren't] quite as good as they thought they were, and that’s pretty scary,”  Duncan told attendees at a meeting of the Council of Chief State Schools Officers Organization in Richmond, Va. on Friday.

However, skeptics note similarities between Common Core standards and the national testing and “one-size-fits-all” education seen in No Child Left Behind.  Duke Pesta, an English professor at the University of Wisconsin–Oshkosh, characterized the Common Core standards as “No Child Left Behind on steroids.”

In South Carolina, several educators and politicians are scheduled to speak in opposition to the standards, including a teacher from Georgia who says she left her job because of Common Core, and state Sen. Lee Bright, who is sponsoring a bill to outlaw Common Core in South Carolina.

Source: U.S. News & World Report, 11/18/13, By Allie Bidwell

[Editor's Note: In November 2013, Legal Clips summarized an article in the San Jose Mercury News reporting that the U.S. Department of Education sent a letter to California education officials saying that the state risks losing more than $3.5 billion in federal funding because it decided not to administer out-dated standardized tests next spring.  ED’s threat to withhold funding is a reaction to the state’s manner of implementing the Common Core.

In June 2013, Legal Clips published a Sua Sponte item reporting that the National School Boards Association, the School Superintendents Association (AASA), the National Association of Elementary School Principals (NAESP), and the National Association of Secondary School Principals (NASSP) issued a joint statement urging that ”States need adequate time, professional development, and the technical infrastructure to properly transition to the Common Core State Standards (CCSS) and the assessment requirements.” ]

Texas district reconsiders – allows transgender student to wear tuxedo for yearbook photo

After initially barring a transgender student who was born female but identifies as male from wearing a tuxedo for his yearbook photo, an Associated Press article on ABC News reports, the La Feria school district has announced it will allow a photo of Jeydon Loredo in a tux to appear in La Feria High School’s yearbook.  The school district’s decision came after the Southern Poverty Law Center threatened to file suit on Loredo’s behalf.

According to Stella Loredo, the student’s mother, school superintendent Raymundo Villarreal, Jr.  told her during a meeting that the photograph of her son in a tuxedo “goes against the community standards.”  She added that Villarreal also said that “they were a conservative school and that (outfit) wouldn’t follow the school policy as far as their dress code.”  Ms. Loredo said she was told her son’s photograph would be included only if he wore feminine attire, such as a drape or blouse.

The school district issued a statement pointing out that Loredo was never in danger of “being completely excluded from appearing in the portrait section of the high school yearbook.”  The statement continued: “There were discussions between the student, the student’s family and the administration on options affiliated with a dress code, including options which were gender neutral.”  The district’s statement asserts that dress code issues “can be difficult and complicated.  Oftentimes, an administrator is called to balance perceived community standards and individualized requests.”

Alesdair Ittelson, an attorney with the law center, insists the district’s action violated Loredo’s right to freedom of expression under the First Amendment, as well as the equal protection clause of the 14th Amendment and Title IX.

Loredo’s case is similar to two that occurred in Mississippi in 2010.

Source: ABC News, 11/15/13, By Juan A. Lozano (AP)

[Editor's Note: Legal Clips reported on both Mississippi cases.

In September 2011, Legal Clips summarized an article in the Clarion Ledger reporting that a federal district court in Mississippi had denied Copiah County School District’s motion to dismiss Ceara Sturgis’ suit over the school district’s exclusion of her senior portrait from the yearbook because she was wearing a tuxedo.  The suit was subsequently settled.

In July 2010, Legal Clips summarized an AP article reporting that a lesbian student prohibited from bringing a same-sex date to her high school prom had settled her suit against the Itawamba County School District (ICSD).  ICSD cancelled the prom at Itawamba Agricultural High School rather than permitting Constance McMillen to wear a tuxedo and bring her girlfriend to the event.  ICSD agreed to pay $35,000, plus attorney’s fees.  Although McMillen failed to obtain a federal court injunction ordering ICSD to hold the prom, the court  ruled that ICSD had violated her rights.]

Nevada district hit with copyright infringement suit by author of training manual

The Clark County School District (CCSD) has been sued for copyright infringement in federal court, says the Las Vegas Review-Journal, for allegedly buying and then scanning and posting online a professional training book.

Jeff Gray’s copyrighted book, “If She Only Knew Me,” is written in the perspective of a troubled student and is meant to help train educators to identify and help children with behavioral problems.  Since its publication in 2005, the book has sold 70,000 copies, according to Gray’s attorneys, Donald Cox and Matthew Cox.  Gray asserts that the district bought the book in December 2009 but was never given the right to reproduce it.

The book was posted online with the attribution line, “Learn more at http://interact.ccsd.net,” which is a link to a portion of the Clark County School District’s website.  Sometime between May and September, when the lawsuit was filed, the book was kept online for download, but the district’s attribution was changed to “Anonymous,” according to the lawsuit and supporting documentation.

District officials assert they can’t find anyone at the district who posted the book online.  District spokeswoman Kirsten Searer said that when the lawsuit was filed, the district asked multiple employees if they had any information about the origin of the reproduction, and no one had knowledge of it.  There’s no proof that the district did reproduce it, Searer said.  She said the district bought multiple copies of the book, but knows of no employees using the book at this time.  Gray also didn’t provide evidence in his complaint that the “presentation originated with or was posted by a CCSD employee,” Searer said.

According to  Mark Borghese, a copyright attorney not connected with the case, the suit will probably be resolved in a quick settlement, adding that the author of the reproduction should be ascertainable through a subpoena served to the website host.

In addition to the suit against CCSD, Gray has filed lawsuits against other school districts and an education consultant for also reproducing and dispersing the book online.

Source: Las Vegas Review-Journal, 11/14/13, By Trevon Milliard

[Editor's Note:  "Using and Protecting Copyrights: Legal Aspects of Remixes and Mashups in K-12 Education" is a resource available to COSA members.  In October 2010, Legal Clips summarized an article in The Washington Post reporting that universities have increased their vigilance in protecting trademarked team logos and insignias  from infringement by high schools that use the designs. These logos have become more valuable in recent years because licensing for merchandise and apparel deals can be worth millions to a university or sports team.] 

Contrary to governor’s claim DOJ has not dropped suit over Louisiana’s voucher program

Both a federal district court judge and the Louisiana State Superintendent of Schools confirm that the U.S. Department of Justice (DOJ) has not abandon its desegregation suit challenging the state’s voucher program, says The Times-Picayune.  After the judge issued an order ratifying DOJ’s September statement that it is no longer seeking injunctive relief, Gov. Bobby Jindal announced that DOJ had abandoned its suit.  U.S. House Majority Leader Eric Cantor (R-VA) also announced that the ruling signaled that DOJ had dropped its suit.

However, while DOJ’s September statement made it clear that it was no longer looking to bar the state from issuing some vouchers without court permission, DOJ is still seeking to monitor the program through court supervision.  The federal government’s initial petition, filed in August, would have made the state get court permission before issuing vouchers to students in 34 school systems that are under long-standing desegregation orders.

In September, DOJ said it is no longer seeking to intervene before voucher assignments are made.  It now wants the judge only to decide whether a 1975 desegregation decision applies to the voucher program and, if so, what data the state must submit to ensure voucher assignments comply with that decision.  “As the department has consistently said in its filings over the past few months, we do not oppose the state voucher law or seek to take vouchers away from students,” a Justice Department spokesperson said.  “Our goal has always been to obtain information on the voucher program on a timely basis and to facilitate implementation of the program consistent with the state’s desegregation obligations.  The court has put in place a process to meet that goal.”

DOJ is requesting that the state provide a long list of information about all voucher applicants 45 days before making any assignments.  The data would include the planned voucher assignment, the school the student would attend without a voucher, and the reasons for denying any application.  State Superintendent John White said the data requirements were so onerous that “it is unequivocal that they have essentially maintained their desire to limit this program.”

Source: The Times-Picayune, 11/19/13, By Danielle Dreilinger

[Editor's Note: In August 2013, Legal Clips summarized an article in The Times-Picayune reporting on DOJ's suit against the State of Louisiana seeking to prevent implementation of the state’s private school voucher program at public schools currently under federal desgregation orders.  DOJ claims that during the first year of its operation the program has “impeded the desegregation process.” ]

New York governor orders state investigation of anti-Semitic school bullying allegations

New York Gov. Andrew Cuomo has ordered state police and the Division of Human Rights to conduct an investigation into allegations of anti-Semitic harassment in the Pine Bush Central School District (PBCSD), says CNN. “The reports of rampant anti-Semitic harassment and physical assaults at Pine Bush schools, if true, are deeply disturbing,” Cuomo said in a statement to the state education commissioner.  “Here in New York State, we have zero tolerance for bigotry or hate based on anyone’s religious or ethnic origin, and to that end, I have directed the State Police and the Division of Human Rights, to undergo a full investigation into the circumstances surrounding these acts,” Cuomo added.

The investigation comes on the heels of a lawsuit filed by attorney Ilann M. Maazel alleging that five PBCSD students were subject to bullying and harassment.  According to the lawsuit, the alleged physical attacks against Jewish students included a swastika drawn on a student’s face against her will, the severe beating of one with a hockey stick, and repeated slapping of another in the head.  Maazel charges that the harassment continued even after the suit was filed.  Maazel contends there is “out of control anti-Semitism in the school district, saying “[t]his is one of the worst bullying cases I’ve seen.”

PBCSD Superintendent Joan M. Carbone declined to respond to the suit’s allegations specifically, but said, “We are hopeful that at the conclusion of this litigation, Pine Bush Central School District’s actions will be vindicated.”

In response to the governor’s call for an investigation, the New York State Department of Education’s (NYDE) executive deputy commissioner Elizabeth R. Berlin said, “We share the governor’s revulsion at the reports of heinous anti-Semitic acts at the Pine Bush Central School District.”  She added that it was the first time NYDE had become aware of the allegations of anti-Semitism.

New York State Attorney General Eric Schneiderman released a statement as well, admonishing the “blind eye” that was taken to these instances of “illegal bullying and discrimination.”  He also said that his Civil Rights Bureau launched an ongoing investigation after it received complaints from Jewish students.  According to Maazel, he was not aware of any investigation that the attorney general conducted.  He said he was never contacted for questions or evidence by their office.

Source: CNN, 11/9/13, By Elizabeth Landers

[Editor's Note: In February 2011, Legal Clips summarized an article in the Student Press Law Center reporting that a middle school student’s family had brought a federal class action lawsuit against a New York school district, alleging school officials failed to protect their daughter and other Jewish students from discriminatory treatment by staff and students, including bullying and anti-Semitic taunts.  The complaint claimed school officials allowed an article to be published in the student newspaper that the family claims was anti-Semitic.  The suit was voluntarily dismissed in July, 2011.]

Parent’s lawsuit claims Georgia district banned her for posting concealed weapon permit online

The Augusta Chronicle reports that a parent volunteer banned from her child’s school has filed suit in federal court against her school district, the Richmond County Board of Education (RCBOE), alleging that the ban was issued because she posted a photo of her concealed weapons permit on Facebook. Tanya Mount’s lawsuit alleges school officials violated her First Amendment right of free speech, her Second Amendment right to bear arms, and her “right to participate in the defense of the nation” when they issued her a criminal trespass warning at McBean Elementary School (MBES).  According to the suit, Mount was summoned to School Safety and Security Capt. Ted Brown’s office after posting the photo, where she was told she was banned from the McBean campus and would be arrested if she trespassed.

School officials say it was her behavior, however, not the posting of the photo that led to the ban.  “A person that has a permit to carry a weapon, if they post it on Facebook, we don’t care,” said Deputy Superintendent Tim Spivey.  “It was her behavior that alarmed us that triggered the reaction from the principal.” Spivey said that MBES Principal Janina Dallas had become increasingly wary of Mount’s behavior because there were times she was found walking around campus unannounced.  Spivey added that Mount wandered from assigned volunteer tasks into unauthorized areas and made “inappropriate comments” when Dallas tried to explain the visitor sign-in rules.

John Monroe, the attorney representing Mount, believes the ban was prompted solely on the Facebook photo and may have also had to do with Mount’s status as an Army veteran.

Former Richmond County Council of PTAs President Monique Braswell said parents are often banned from local schools for frivolous reasons, and this is one of them.  “They need to just say ‘We overreacted, we made a mistake,’ ” Braswell said. “Parents would have accepted an apology.”

However, Spivey said in an age of school shootings, violence, and tragedy, administrators can’t take chances when it comes to student safety.  He said the McBean principal had reason to be nervous and acted reasonably.

Source: The Augusta Chronicle, 11/7/13, By Tracey McManus

[Editor's Note:  Mount's legal complaint also names Captain Brown and Ms. Dallas as defendants.

In September 2010, Legal Clips summarized an Associated Press article in the Morning Sentinel reporting that school districts are increasingly using background checks to weed out volunteers with criminal pasts.  These policies raise two questions: should parents with records, especially for offenses not connected to children, be automatically barred from volunteering?  And how should schools reconcile their need to protect students with the public’s interest in helping offenders rejoin society?] 

Pennsylvania board member’s motion to allow female student to participate on male wrestling team to end lawsuit rejected by the board

Lamont Masser, a member of  the Line Mountain School Board (LMSB), called on the board to allow Audrianna Beattie to join her school’s wrestling program, says the News-Item.  LMSB rejected Masser’s motion, which also asked the board to withdraw from the federal lawsuit filed by the student’s parents.

Masser told follow board members the suit is distracting LMSB from its primary responsibility of ensuring all the district’s students receive a quality education.  “The litigation surrounding our wrestling program will have no positive effect for our school,” he said.  “Regardless of the outcome, the only certainty is that we will spend our time, our administrators’ time and the taxpayers’ money, all of which could and should be put to better use.”  Masser criticized the board’s lack of focus on academics, saying, “I think our priorities are out of order.”  LMSB  President Troy Laudenslager said he was offended by Masser’s statement that the board members weren’t putting education first.

The parent’s suit charges LMSB is discriminating against their daughter on the basis of sex in violation of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and the Equal Rights Amendment of the state constitution.  The suit contends that by denying Beattie participation, she misses opportunities to practice and compete, which would cause her to fall behind in her development as a wrestler and prevent her from being able to compete in the future.

A federal judge ruled on Nov. 1 that Beattie is allowed to participate in the wrestling program until the suit is settled.

Source: News-Item, 11/13/13, By Justin Strawser

[Editor's Note: In August 1998, Inquiry & Analysis (available to COSA members only) summarized a decision by a Texas federal district court in Barnett v. Texas Wrestling Association holding that the state interscholastic athletic association was not liable for sex discrimination under title IX when it barred female wrestlers from participating in intergender matches.  However, the female wrestlers did have cause of action for violation of their equal protection rights under section 1983 based on the state association’s rule prohibiting intergender matches. 

In September 2013, Legal Clips summarized an article in the Pharos-Tribune reporting that the American Civil Liberties Union of Indiana (ACLU-IN) has dropped its suit against the Eastern Pulaski Community School Corp. after the school district agreed to allow a female student to play on the all male middle school football team.] 

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