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Federal appellate court rules that suit under Section 504 and the ADA barred by failure to exhaust IDEA remedies

J.B v. Avilla R-XIII Sch. Dist./A.L.A. v. Avilla R-XIII Sch. Dist., Nos. 12-1112/12-1113 (8th Cir. Jul. 24, 2013)

Abstract: A U.S. Court of Appeals for the Eighth Circuit (ND, SD, MN, NE, IA, MO, AR) three-judge panel ruled that because two disabled students’ claims were related to implementation of their individualized education plans (IEP), they were required to utilize the Individuals with Disabilities Education Act’s (IDEA) due process complaint procedures before filing suit under the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504).  It concluded that the students’ claims were subject to the exhaustion requirement because the relief sought under each claim was available under IDEA.

Facts/Issues: J.B. and A.L.A., who have disabilities, attended Avilla R-XIII School District (ASD) schools.  Both students were provided with an IEP.  The parents/guardian of each student participated in the development of their child’s IEP, but had ongoing disputes with ASD over the manner in which the IEP was being implemented.

J.B.’s parents filed a complaint with United States Department of Education Office for Civil Rights (OCR), charging that ASD’s disability discrimination grievance resolution process was inadequate for addressing parents’ complaints about IEP issues.  OCR determined the process adequate for addressing IEP-related complaints, but inadequate to handle complaints regarding other forms of disability discrimination.

J.B. and A.L.A. did not utilize the due process complaint procedure available under the IDEA for parents dissatisfied with the manner in which an IEP is implemented.  Instead, they filed suit in federal district court against ASD. Their claims alleged that ASD had discriminated against J.B. and A.L.A. in violation of the ADA and Section 504, by failing to adequately implement each child’s IEP and by not having an adequate grievance resolution process for disability discrimination complaints.

The district court granted ASD’s motion for summary judgment in each case. It found that the claims related to implementation of the IEPs and, as a result, the students had been required to go through the IDEA due process complaint procedures before filing suit under the ADA or Section 504.  The plaintiffs appealed the court’s ruling that their claims were barred by their failure to exhaust their administrative remedies under the IDEA.

Ruling/Rationale:  The Eighth Circuit panel affirmed the lower court’s decision.

The panel identified the issues as whether the students were required to exhaust their administrative remedies under the IDEA before filing their ADA and Section 504 claims in district court and, if so, whether they satisfied any of the three recognized exceptions.

The IDEA text plainly requires exhaustion:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter. 20 U.S.C. § 1415(l) (emphasis added).

As relief, the plaintiffs had sought compensatory services, compensatory damages, attorneys’ fees, and reimbursement for education-related services and materials.  All of the relief requested is available under their IDEA, except for compensatory damages.  The panel determined that the existence of one outlying claim for relief, in this case, did not excuse IDEA’s exhaustion requirement.  The panel noted that exhaustion under the IDEA is the “general rule,” but said that there may be cases where “a plaintiff seeking relief both available and unavailable under the IDEA for a claim based on grounds both related and unrelated to the denial of FAPE” would not be required to exhaust their IDEA administrative remedies before filing suit.

The panel also determined that none of the three recognized exceptions to the exhaustion requirement were satisfied: futility; inability of the administrative remedies to provide adequate relief; and the establishment of an agency policy or practice of general applicability that is contrary to law.

The plaintiffs’ “futility” argument was that the school district’s inadequate disability discrimination grievance resolution process could not have been remedied in an IDEA due process hearing.   The panel accepted the plaintiffs’ assertion, but pointed out that even though “the administrative venue may not have been able to address the grievance resolution process … [e]xhaustion would have allowed the agency to develop the record for judicial review and apply its expertise to the Plaintiffs’ claims to the extent those claims are related to implementation of J.B.’s and A.L.A.’s IEPs.”

The plaintiffs’ “inadequate remedy” claim was based on an argument that their compensatory damages count was now barred by the statute of limitations. The panel dismissed this argument, stating that the plaintiffs’ failure to file their suit within the proper time frame “reflects only on the individual’s choice and not the adequacy of the remedy.”

The plaintiffs again cited the school district’s grievance resolution process in trying to satisfy the “practice contrary to law” exception.  The panel rejected this argument, noting that “The OCR report gives no indication the District’s grievance resolution process was inadequate for addressing IEP-related claims.”

J.B v. Avilla R-XIII Sch. Dist./A.L.A. v. Avilla R-XIII Sch. Dist., Nos. 12-1112/12-1113 (8th Cir. Jul. 24, 2013)

[Editor's Note: In August 2011, Legal Clips summarized a split decision by the U.S. Court of Appeals for the Ninth Circuit sitting en banc, in Payne v. Peninsula Sch. Dist., holding that the IDEA exhaustion of administrative remedies requirement is not jurisdictional and, instead, is an affirmative defense that must raised by a school district or is waived.  The majority also ruled that IDEA’s exhaustion requirement only applies when the relief sought by a plaintiff is available under the IDEA.  It concluded that non-IDEA claims that are not seeking relief under the IDEA are not subject to the exhaustion requirement.  Therefore, the court held, “although the district court properly dismissed Payne’s IDEA-based § 1983 claim, it should not have dismissed her non-IDEA claims on exhaustion grounds.”  In February 2012, the U.S. Supreme Court declined to review the Ninth Circuit's decision in Payne.

Attorneys handling an exhaustion case may want to read Muskrat v. Deer Creek Pub. Sch., No. 11-6194 (10th Cir. Apr. 23, 2013), summarized in Legal Clips in May 2013, and the cases cited therein concerning whether the exhaustion defense is jurisdictional and whether school districts must raise the issue at the trial court level. Circuits are split on this. ]

Virginia School Boards Ass’n and Norfolk Public Schools file suit to overturn legislation authorizing state takeover of failing schools

According to the Richmond Times-Dispatch,  the Norfolk Public Schools (NPS) board has voted to join the Virginia School Boards Association (VSBA) in a suit against the state seeking to overturn the legislation creating the Opportunity Educational Institution (OEI).  The suit will be filed in the City of Norfolk Circuit Court.

Under the legislation, the Opportunity Educational Institution, run by a board of state lawmakers and gubernatorial appointees, will take over schools that have been denied accreditation.  It can also take over schools in their third consecutive year of warning.  To lose accreditation in Virginia, as at least four schools currently have, schools must fail to meet basic academic benchmarks at least four years in a row.  School accreditation ratings are expected next month from the Virginia Department of Education.  Until then, it’s unclear how many schools could be seized.

OEI’s board is free to operate the school in whatever manner it chooses, including turning it into a charter school or college laboratory school.  It could return the schools to local control once they reach full accreditation, but it’s not required.

The VSBA was among the groups opposing the school takeover legislation promoted by Gov. Bob McDonnell, and the association argued that it was unconstitutional.  Per pupil funding would follow the student, meaning both the state and local shares of the funding for each student would go to the statewide board.  OEI would also be able to use any school facility or property that’s part of the school or used by its students before it’s taken over.

NPS and VSBA contend that the construct is unconstitutional and that the legislation violates parts of the Constitution of Virginia providing that “the supervision of schools in each school division shall be vested in a school board” and that the State Board of Education shall create school divisions.

“Creation of the Opportunity Educational Institution and the OEI Board clearly violate the Constitution of Virginia,” Kirk Houston, chairman of the Norfolk School Board, said.  “As Governor McDonnell referenced last week in a visit to Northern Virginia, local school boards and local control are vital to the success of local schools.”

J. Tucker Martin, Gov. McDonnell’s spokesman, said, “The Governor believes every child deserves the opportunity to attend a great school and have a real chance at success.  If it takes now beating a lawsuit to provide them with that basic right, so be it.”

Source: Richmond Times-Dispatch, 8/22/13, By Olympia Meola

[Editor's Note: Legal Clips thanks VSBA for bringing this issue to Legal Clips' attention and sharing it with our readers.  In a joint press release from VSBA and NPS announcing plans to file the suit, VSBA Executive Director Barbara Coyle said, "The Virginia School Boards Association and Norfolk City School Board request the court to declare the OEI legislation unconstitutional and to enjoin the OEI Board from taking any action to implement the legislation.”

The release also states that the suit will challenge the legislation primarily on two grounds: (1) The legislation violates Article VIII, Section 7 of the Constitution of Virginia, which provides that “the supervision of schools in each school division shall be vested in a school board;” and (2) The legislation violates Article VIII, Section 5 of the Constitution of Virginia, which provides that the State Board of Education shall create school divisions.]

DOJ sues to block Louisiana school voucher program alleging plan violates federal desegregation orders

According to The Times-Picayune, the U.S. Department of Justice (DOJ) has filed suit in federal court against the State of Louisiana to prevent the 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.”

Thirty-four school systems could be affected.  Under the lawsuit, the state would be barred from assigning students in those systems to private schools unless a federal judge agreed to it.  This year, 22 of the 34 systems under desegregation orders are sending some students to private schools on vouchers.

DOJ’s primary argument is that letting students leave for vouchered private schools can disrupt the racial balance in public school systems that desegregation orders are meant to protect.  Those orders almost always set rules for student transfers with the school system.

Federal analysis found that last year’s Louisiana vouchers increased racial imbalance in 34 historically segregated public schools in 13 systems.  DOJ goes so far as to charge that in some of those schools, “the loss of students through the voucher program reversed much of the progress made toward integration.”

State Education Superintendent John White took issue with the suit’s primary argument and its characterization of the program.  Almost all the students using vouchers are black, he said.  Given that framework, “it’s a little ridiculous” to argue that students’ departure to voucher schools makes their home school systems less white, he said.  He also thought it ironic that rules set up to combat racism were being called on to keep black students in failing schools.

Gov. Jindal blasted DOJ’s suit.  “After generations of being denied a choice, parents finally can choose a school for their child, but now the federal government is stepping in to prevent parents from exercising this right. Shame on them,” he said.  “Parents should have the ability to decide where to send their child to school.”

The case has been assigned to Judge Ivan Lemelle.  He ruled in November 2012 that elements of Jindal’s 2012 education overhaul were unconstitutional, because paying to implement the voucher program would hurt Tangipahoa Parish’s ability to pay for the programs it uses to comply with its federal desegregation order.  The state’s appeal in that case is pending.

Source: The Times-Picayune, 8/24/13, By Danielle Dreilinger

[Editor's Note: In November 2012, Legal Clips summarized an Associated Press article in The Times-Picayune reporting on Judge Lemelle's decision that Governor Jindal’s voucher program in Tangipahoa Parish conflicts with a decades-old desegregation case in the parish.]

Delaware Supreme Court finds school district may be liable for student’s off-campus suicide

Rogers v. Chistina Sch. Dist., No. 45, 2012 (Del. Jul. 16, 2013)

Abstract: The Delaware Supreme Court has ruled that a school district is not liable under the state’s Wrongful Death Statute for a student’s suicide that occurred off-campus.  It concluded that the school had not assumed a duty of care and that no special relationship existed between the school and the student requiring the school to notify the student’s guardians.  However, the supreme court found that the parents have a valid negligence per se claim against the school district based on school officials’ alleged violation of the Delaware Department of Education’s and the school district’s mandatory requirement to notify a parent or guardian of a student’s crisis situation.

Facts/Issues:  Ms. Margette Finney, Intervention Specialist at Newark High School (NHS), met with a student, Roger L. Ellerbe, for four hours to discuss Ellerbe’s suicidal thoughts.  Finney had been alerted to the situation by a friend of Ellerbe’s, who told her that Ellerbe was considering committing suicide and that he had  tried to suffocate himself the previous weekend. Finney also discussed the matter with Ellerbe’s former girlfriend–they had broken up the previous Sunday–who told her that Ellerbe was contemplating suicide.

In the four hour interview with Finney, Ellerbe confirmed that he had attempted suicide the previous weekend.  After the interview, Finney decided Ellerbe was no longer suicidal and sent him back to class.  She sent an email to the assistant principal and other school counselors saying that after talking with Ellerbe she felt “that he is not a threat to himself.”  Finney did not contact Ellerb’e legal guardian (his grandmother), nor did any other school district employee.  After arriving home that afternoon, Ellerbe committed suicide.

Delaware State Department of Education regulations require a parent or guardian to be notified of a crisis situation involving a student.  A crisis situation is defined under the regulations to include suicidal or homicidal statements or actions.  The Christina School District (CSD), where  Newark High School (NHS) is located, has identical regulations.

Ellerbe’s family brought a wrongful death and survival suit in state court against CSD and NHS school officials, including Finney.  The trial court granted summary judgment in favor of the defendants, finding no duty to the student and no wrongful act under the Delaware Wrongful Death Statute (WDS).

The plaintiffs appealed, asserting a common law duty of care based on the existence of a special relationship between a school and its students.  In response to an inquiry from the Supreme Court of Delaware, the plaintiffs also asserted negligence per se based upon the defendants’ violation of the regulations issued by the State Department of Education and the school district.

Ruling/Rationale: The Delaware Supreme Court found that the plaintiffs’ claim under the state’s Wrongful Death Statute, based on the theory that CSD had a “special relationship” with students giving rise to a duty of care to Ellerbe, was without merit.  However, it found that the plaintiffs had stated a valid claim of negligence per se, based on the alleged violation of DDE and CSD’s  mandatory requirements to notify a parent or guardian of Ellerbe’s crisis situation, and reversed the lower court’s award of summary judgement.

The supreme court noted that the question of  whether a school district can be liable for the off-campus suicide of a student is an issue of first impression in Delaware.

The court’s analysis of the Wrongful Death Statute claim relied heavily on the Restatement (Second) of Torts.  The court determined that the plaintiffs could prevail on their Wrongful Death Statute only if they could prove that either 1) the school had assumed a duty of care or 2) a special relationship existed between the school and Ellerbe.  The school had not assumed a duty of care to Ellerbe because Finney had taken  no “affirmative action…[which] increased the risk of self-harm” to Ellerbe.  The supreme court also rejected the plaintiffs’ attempt to use the the doctrine of in loco parentis to create a special relationship between CSD and Ellerbe.  It found that the doctrine has been narrowly applied in Delaware:

There is no Delaware precedent suggesting that in loco parentis should be applied to an injury sustained by a high school student not inflicted by another student, or, as the [plaintiffs] urge, instances where a school administrator fails to alert medical professionals or the student’s guardians.  Rather, much of the case law involves instances where the school administrator conducts a search of a student’s property or disciplines a student.

The negligence per se claim, however, was upheld by the court.  The supreme court pointed out that  “[t]he basic concept of negligence per se is to ease the requirements of proving negligence if a party inflicts harm that the General Assembly attempted to alleviate by legislative enactment.”

The supreme court stated, “It has been long settled in this State that the violation of a statute or ordinance enacted for the safety of others is negligence in law or negligence per se.”  It continued, “The Protocols, mandated by [the Delaware Department of Education] and promulgated pursuant to its statutory authority delegated by the General Assembly, have the force and effect of law.” The plaintiffs’ allegation that the school also violated school district regulations requiring parental contact also stated a valid claim.  The court concluded, based on Delaware case law, that CSD’s actions “if proved, establish negligence per se.”  The case was remanded for further proceedings on the plaintiffs’ negligence claim.

Rogers v. Chistina Sch. Dist., No. 45, 2012 (Del. Jul. 16, 2013)

 [Editor's Note:  In Eisel v. Board of Education of Montgomery County, 597 A.2d 447 (Md. 1991), Maryland's highest court held that school counselors have a duty to use reasonable means to attempt to prevent suicide when they are on notice of a child or adolescent student’s suicidal intent.  Like Rogers, the Maryland decision relied on statutes from the legislature and regulations from the state department of education.

In July 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) three-judge panel in Chigano v. City of Knoxville holding that school officials did not violate an autistic student’s Fourteenth Amendment substantive due process rights by failing to inform a police officer called to arrest the disruptive student of her disability.  The panel determined that the student’s claim failed under DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), because the student had failed to show an affirmative act on the part of school officials.  Liability requires an affirmative act on the part of the defendants, and the failure to act is not an affirmative act.]

Ohio district transfers autistic student with a service dog due to teacher’s allergies

The mother of an elementary school student who uses a service dog was told that her daughter would not be allow to attend the school as planned, says The Columbus Dispatch, because the special education teacher assigned to teach the student is is severely allergic to dog dander.  The mother was told her daughter and the dog must transfer to another school, where an allergy-free special-education teacher will instruct the student.

Charla Gretz, the mother of Shyanna Gretz, insists the transfer is unacceptable.  She asked why a different teacher could not be assigned rather than make her daughter change schools, which involves a 30 to 40 minute bus ride.  According to Gretz, Shyanna’s autism includes being overwhelmed by sensory issues and not coping well with change, and a longer bus ride and switching schools would exacerbate both.

Superintendent Carl D. Martin said the dog is welcome in the district, where about 20% of students have an identified disability.  However, the accommodations made for Shyanna and her dog must be balanced against the rights of the allergic teacher, and moving the student to a different school is a reasonable solution, Martin said.  He also disputed the time that Gretz gave for the bus ride.  The elementary schools are 5 miles apart, and Shyanna would not spend significantly more time on the bus, he said.

The issue of service dogs and classroom allergies has surfaced nationally, said Sara Clark, an attorney with the Ohio School Boards Association.  Neither she nor an Ohio Department of Education spokesman knew of other cases in Ohio.

Federal law is clear that schools cannot turn away a student using a service dog because a teacher or another student is allergic, Clark said.  The recommended solution is to put the student with the service dog and the student or teacher with the allergy in different classrooms, she said.  There is a legal obligation to accommodate both, Clark said.

Shyanna’s parents plan to home school her while they present the issue to the school board.

Source: The Columbus Dispatch, 8/23/13, By Mary Beth Lane

[Editor's Note: In April 2013, Legal Clips summarized an article in the Palm Beach Post reporting that members of the Palm Beach County School District’s (PBCSD) board were expected to vote on a proposed “service animal” policy that Deputy General Counsel Laura Pincus said basically will formalize district procedures that already have allowed several service dogs on a “case-by-case” basis.]

Rhode Island suspends use of student performance in teacher evaluations

The Rhode Island Department of Education has temporarily suspended the use of student progress on the New England Common Assessment Program (NECAP) test as part of its teacher evaluations, says the Providence Journal. Mary Ann Snider, chief of education excellence, issued a memo announcing that Commissioner Deborah A. Gist had considered the widespread fears of teachers across the state in her decision to postpone using the test as a gauge of teacher performance.

Snider said there has been a lot of misunderstanding about how the NECAP was being used to evaluate teachers.  The one-year postponement will give her department time to explain the so-called “growth model” of student progress, she said.  As part of their evaluation, teachers are rated on whether their students have shown progress on the NECAP.  Some teachers have feared that part of their evaluation depends on students reaching proficiency on the test, which isn’t true.

Meanwhile, Gist is consulting with U.S. Secretary of Education Arne Duncan as to whether Rhode Island can get a waiver on this requirement so that the state’s $75-million federal Race to the Top grant isn’t jeopardized.  Although the test will not immediately be used to measure teacher performance, it will be used this year for the first time as a high school graduation requirement in Rhode Island.

Source: Providence Journal, 8/25/13, By Linda Borg

[Editor's Note: In April 2013, Legal Clips summarized an article in the Orlando Sentinel reporting that teachers in three school districts, along with their local unions, had filed suit in federal court charging that Florida’s sweeping merit-pay law unfairly resulted in many teachers’ evaluations being based on the test scores of students or subjects they did not teach in violation of the equal-protection and due-process clauses of the U.S. Constitution.]

Lawsuit alleges North Carolina’s redrawn board member election districts favor Republicans

Several supporters of the Democratic majority on the Wake County school board filed a federal lawsuit challenging the constitutionality of new election districts drawn up this year by the Republican-led General Assembly, says the News & Observer.  The suit alleges that the new lines violate the one-person, one-vote requirements of the state and U.S. constitutions by creating districts with overly large differences in numbers of voters, diluting the influence of some voters’ ballots.

According to the legal complaint, the new lines “disfavor incumbents who are registered Democrats and support progressive education policies” while trying to “further Republican interests that advance conservative agenda policies.” Amy Womble, one of the plaintiffs, said, “This redistricting plan was designed to change the makeup of the Wake County School Board to include members who would return to policies of re-segregation and undermining of public education.”

Several leaders of the Great Schools in Wake Coalition are plaintiffs.  Plaintiffs also include the Coalition of Concerned Citizens for African-American Children and the Raleigh Wake Citizens Association.

Currently, the school board is organized into nine districts.  Voters can pick only the member for their districts of residence.  The lines were drawn by the school board in 2011.  But under the law passed in June, the legislature turns two of the nine seats into “regional” representation areas for the county.

One district is strongly Democratic.  The other district consists of much of suburban Wake County and historically has voted Republican.  The lines for the other seven board districts also were redrawn.

Starting in 2016, voters would choose candidates for one of the two regional seats and another in the district they reside in.  Three non-regional districts that draw from areas inside the Beltline historically have voted Democratic. The four other non-regional districts in the suburbs historically have voted Republican.  Voter registration statistics suggest that the new lines would favor a 5-4 Republican majority.

The lawsuit points to how, although President Barack Obama won Wake County in 2012, under the new lines he would have had a majority in only four of the nine districts. “Disenfranchising some voters because they are not voting your way is not constitutionally right,” said Allison Riggs, a staff attorney for the Southern Coalition for Social Justice, which filed the lawsuit against the General Assembly. “They’re disenfranchising those that don’t favor conservative policies.”

Source: News & Observer, 8/22/13, By T. Keung Hui

[Editor's Note: The Southern Coalition for Social Justice (SCSJ) filed the suit on behalf of the plaintiffs named in the News & Observer news article.  SCSJ's press release announcing the suit states:

Today the Southern Coalition for Social Justice, on behalf of thirteen Wake County citizens and two community organizations, filed a lawsuit in federal court challenging Senate Bill 325 (now Session Law 2013-110), the North Carolina General Assembly’s unjustified redistricting of Wake County Board of Education districts. The new law has the effect of unconstitutionally devaluing the vote of some residents of the County in electing members to the School Board.

The Legal complaint contains two counts: (1) Denial of Equal Protection under the 14 th Amendment to the U.S. Constitution; and (2) Denial of Equal Protection under Article I, §19 of the North Carolina Constitution.

In August 2013, Legal Clips summarized an Associated Press article in the Great Falls Tribune reporting that the America Civil Liberties Union of Montana (ACLU-MT) had filed suit against Wolf Point School District charging that school board voting districts are arranged to favor white voters in a predominantly Native American area.  The suit contends that the voting districts are drawn so that white residents have a proportionally greater say on the school board than American Indian residents.]

California district hires company to monitor students’ online activity

Glendale Unified School District (GUSD) has hired Geo Listening to monitor and analyze what students post online, on sites such as Facebook, Instagram and Twitter, reports The Huffington Post.  Geo will be looking for evidence of cyberbullying, crime, drug-use and suicidal thoughts, which will allow GUSD officials to intervene in order to prevent students from engaging in illegal or harmful activity.

According GUSD Superintendent Richard Sheehan, the “whole purpose is student safety.”  “Basically, it just monitors for keywords where if a student is considering harming themselves, harming someone else,” he said.

While the program was being piloted last year, it allowed officials to intervene with a suicidal student.  “The administrator was contacted at the school site. Then we made contact with the student, the student’s family and we got them the appropriate help,” Sheehan said.

The program tracks the social media habits of about 13,000 high school and middle school students.  However, some parents and students believe the program is an invasion of privacy.  Geo insists it only monitors public social media posts.  “All of the individual posts we monitor on social media networks are already made public by the students themselves,” the company said. “Therefore, no privacy is violated.”

Source: The Huffington Post, 8/27/13, By Rebecca Klein

[Editor's Note: In August 2013, Legal Clips summarized an article in the Recordnet reporting that attorneys representing the Student Press Law Center had sent a letter to the Lodi Unified School District (LUSD) asking its school board to suspend a controversial social media policy.  The letter asks LUSD to suspend the new contract required of student athletes and extracurricular club members that allows punishments for inappropriate or “bullying behavior” on social media outlets.]

Connecticut district adopts anti-profanity policy for students

The New Britain Herald reports that New Britain Superintendent of Schools Kelt L. Cooper has announced a new anti-profanity policy for the school district that calls for students to be suspended from school for 5-10 days.  “We need to deal with the chronic absenteeism and kids in your face,” Cooper said.  “I seem to think that some point along the line people gave up here.  But enough is enough.”

Cooper was interrupted numerous times by applause by teachers and school staff.  “Today, we have a new motto,” Cooper said.  “Don’t talk smack and don’t show crack [kids with pants half down].”  Students that curse, use abusive language or disrespect teachers and staff will be sent to the principal’s office — and expect to get a suspension.

According to Cooper, there is not a set list of words that students can’t use, but principals will decide what the context of the language was and if it reaches a level of suspension.  He also pointed out that it is up to the principal’s discretion on whether to suspend the student five days, 10 days or somewhere in between.  Cooper noted that in the past, there were not mandatory suspensions for students who used profanity against staff.

In addition to addressing verbal forms of disrepect, the policy states that students who wear their pants halfway down also will be subject to 5- to 10-day suspensions, beginning with their second offense.  “The aggressive in-your-face words like F-you and the B-word, none of that will be tolerated,” Cooper said.

“People know right from wrong and what vulgarity is,” said Paul Salina, chief operations officer for the school district.  Salina added the policy is aimed solely at students who show disrespect to teachers and staff.  It will take effect the first day of school.  “We are doing what worked well in the 1950s and 1960s,” Salina said.  “You show up and go to school and you be a good citizen.  With the right to an education is the responsibility to be a good student.”

As a symbolic effort, more than 100 teachers and staff joined Cooper outside the school following the announcement for a picture with bars of soap in their hands.  Sue Truglio, teachers union president, said: “Children should be accountable for their actions, both academically and socially.  Teachers should not accept anything other than respect.”

Source: New Britian Herald, 8/26/13, By Robert Storace

[Editor's Note: Student speech that is obscene, lewd, vulgar or plainly offensive is not entitled to First Amendment protection. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  Student speech that materially and substantially inferes with school operations or infringes on the rights of others is also not entitled to First Amendment protection.  See Tinker v. Des Moines Cmty. Sch. Dist., 393 U.S. 503 (1969).

Recently a federal appellate court and a federal district court disagreed as to whether the term "boobies" runs afoul of the Fraser standard.  In August 2013, Legal Clips summarized a  U.S. Court of Appeals for the Third Circuit en banc decision in B.H. v. Easton Area Sch. Dist. holding in a 9-5 split that a Pennsylvania school district’s ban on displays of a cancer awareness bracelet inscribed with the caption “I ♥ boobies” violated students’ First Amendment free speech rights.  The Third Circuit’s majority concluded that the ban could not be justified under either the Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), substantial disruption standard or the Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), vulgar, lewd, profane, or plainly offensive speech standard.

Also in August 2013, Legal Clips summarized a decision by a federal district court in Indiana in J.A. v. Fort Wayne Cmty. Sch. that denied a student’s motion for a declaratory judgement and permanent injunction allowing her to wear a cancer awareness bracelet bearing the caption “I ♥ Boobies” at school, and entered judgement for the school district.  The court concluded that the school district’s ban on the bracelets was justified under the standard articulated in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  The court held that the school district “made an objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene or plainly offensive,” and therefore its ban was constitutional.]

Sua Sponte: U.S. Dep’t of ED’s Office of Special Education and Rehabilitative Services issues guidance on the bullying of disabled students

The U.S. Department of Education (ED) announced on its August 20, 2013 blog that ED’s Office of Special Education and Rehabilitative Services (OSERS) has issued guidance regarding the bullying of students with disabilities.  According to ED, the “guidance provides an overview of school districts’ responsibilities to ensure that students with disabilities who are subject to bullying continue to receive free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA).”

The four page OSERS Dear Colleague Letter (DCL) states that the letter is being issued “to provide an overview of a school district’s responsibilities under the Individuals with Disabilities Education Act (IDEA) to address bullying of students with disabilities.”  In a footnote supporting that statement, OSERS says its DCL is “intended to supplement the July 25, 2000, joint Dear Colleague Letter from OSERS and the Department’s Office for Civil Rights (OCR), which addressed disability harassment under Section 504 of the Rehabilitation Act of 1973 (Section 504), Title II of the Americans with Disabilities Act of 1990 (Title II of the ADA), and the IDEA.”

The guidance states that “any bullying of a student with disabilities which results in the student not receiving meaningful educational benefit is considered a denial of FAPE.”  The DCL also notes that “certain changes to an educational program of a student with a disability (e.g., placement in a more restricted ‘protected’ setting to avoid bullying behavior) may constitute a denial of FAPE in the LRE.”

The DCL stresses that even when circumstances do “not rise to a level that constitutes a denial of FAPE, bullying can undermine a student’s ability to achieve his or her full academic potential.”  OSERS, therefore, included with the DCL a seven page enclosure titled Effective Evidence-based Practices for Preventing and Addressing Bullying.

The attachment provides “specific strategies that school districts and schools can implement to effectively prevent and respond to bullying, and resources for obtaining additional information.”  It suggests nine “effective evidence-based practices” as part of any bullying prevention and intervention program  undertaken to help ensure that  school and classroom settings are positive, safe, and nurturing environments for all children and adults:

(1) Use a comprehensive multitiered behavioral framework

(2) Teach appropriate behaviors and how to respond

(3) Provide active adult supervision

(4) Train and provide ongoing support for staff and students

(5) Develop and implement clear policies to address bullying

(6) Monitor and track bullying behaviors

(7) Notify parents when bullying occurs

(8) Address ongoing concerns

(9) Sustain bullying prevention efforts over time

The enclosure also provides a list of “Resources on Preventing and Addressing Bullying.”

OSERS’ DCL may have a significant impact on litigation involving claims of peer harassment/bullying of disabled students.  Such claims have been brought under Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA).

In June 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Eleventh Circuit (AL, GA. FL) three-judge panel in Long v. Murray Cnty. Sch. Dist., holding that a school district was not deliberately indifferent to peer harassment of a deceased disabled student.  The panel noted that both parties to the suit agreed that the deliberate indifference standard established in Davis v. Monroe County Board of Education, 526 U.S. 629, 633, applies to the plaintiffs’ § 504 and Americans with Disabilities Act (ADA) claims.  The panel upheld the lower court’s ruling that the school district was not liable  for student-on-student harassment under either federal anti-discrimination disability statute.

NSBA filed an amicus brief in Long urging the Eleventh Circuit to adopt the deliberate indifference standard for disability-based harassment claims under Section 504 and the ADA.

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