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Colorado teacher tenure/evaluation law faces legal challenge from state’s teachers’ union

The Colorado Education Association (CEA) has announced it is filing a lawsuit challenging the validity of parts of the state’s education reform law, says The Gazette, specifically “proven flaws in the mutual consent provision of Senate Bill 191 that allows school districts to remove qualified teachers from the classroom.”

Among other things, SB191 implements a new high-stakes teacher evaluation system that is based in part on student performance and test scores.  The evaluation system allows for the dismissal of a tenured teacher when performance is low and for other reasons.  The teacher can only be placed in a new school if there is mutual consent between the school principal and the teacher.  The lawsuit likely will be on behalf of teachers from Denver Public Schools who lost their jobs after the district introduced a pilot program based on SB191.

A spokesman for the CEA has said in previous interviews that those teachers were not dismissed due to poor performance, as was intended in SB191, but because of budget cuts needed in the district.  Those teachers were then unable to find jobs at other schools in the district using a “mutual consent” policy, leaving them unemployed.

Denver Public Schools Superintendent Tom Boasberg defends the “mutual consent” provision, saying, “Forced placement of teachers is wrong.  It’s wrong for students, it’s wrong for teachers and it’s wrong for schools.  Nobody benefits when a teacher is placed in a school that does not want them.”

Source: The Gazette, 1/28/14, By Megan Schrader

[Editor's Note: In February 2012, Legal Clips summarized an article in the Denver Post reporting that a bill revising the rules about how teachers and principals will be evaluated and how they will earn or lose tenure easily passed through Colorado’s general assembly, and Gov. John Hickenlooper signed it into law.  The signing represents the culmination of the work behind the controversial Senate Bill 191, passed in 2010.

In March 2013 Legal Clips reported that the Louisiana Federation of Teachers won the initial round in a lawsuit challenging that state's new teacher tenure/evaluation law when a judge overturned the law, albeit on a technical violation of the state constitution's one subject rule.

In April 2013 Legal Clips reported on a suit by Florida teachers' unions challenging a state law linking teacher evaluations and merit pay.]

Eleventh Circuit rules that school district is not required to request due process hearing to implement IEP amended over parents’ objection

K.A. v. Fulton Cnty. Sch. Dist., No. 12-15483 (11th Cir. Dec. 20, 2013)

Abstract: A U.S. Court of Appeals for the Eleventh Circuit three-judge panel has ruled that the IDEA does not require a school district to request a due process hearing when the IEP team amends an IEP and the parents object. Rather, it is the parents’ responsibility to request a due process hearing.

The panel also held that the matter was not moot, that any procedural deficiencies in the school district’s IEP notice to the parents did not result in prejudice or harm and were therefore non-actionable, and that parents cannot sue under § 1983 for IDEA violations.

Facts/Issues: K.A., who suffers from Down’s Syndrome, attended school in the Fulton County School District (FCSD).  After repeating kindergarten, her parents met with school officials to develop an IEP for first grade.  That IEP placed K.A. in regular classes for some subjects and in special education classes for others.  After K.A. began first grade, her teachers observed that she was having behavior problems and difficulty keeping up with the curriculum.

At that point, school officials met with K.A.’s parents to discuss amending the IEP to address K.A.’s problems.  School staff wanted to reduce the amount of time K.A was “mainstreamed” in favor of more time in special education classes with other disabled children.  Specifically, the school district wanted to transfer K.A. to a different elementary school and place her in a “mildly intellectually disabled” program.  The parents disagreed.  Over the parents’ objection, the school district amended the IEP, requiring K.A. to attend the new school and be placed in the less mainstreamed program.

The parents requested a due process hearing to challenge the amended IEP and, pursuant to IDEA’s “stay put” provision, K.A. remained in her present school.  The independent hearing officer (IHO) dismissed the parents’ claims and a federal district court upheld the IHO’s decision.  The parents challenged the procedures used to adopt the new IEP, not its substance.

The parents raised four issues in their appeal to the Eleventh Circuit.  Principal among them was the argument that the school district, not the parents, should have had to request a due process hearing and defend the proposed IEP.  The parents also claimed that: (1) they were deprived of prior written notice and notice of their procedural rights as required by the IDEA; (2) the district court applied the wrong standard of review to the hearing officer’s decision and ought to have taken additional evidence; and (4) the parents are entitled to relief under § 1983 because the school district’s actions violated their rights under the IDEA and the U.S. Constitution.

Ruling/Rationale:  The panel agreed with FCSD that a school district may amend an IEP even if the parents do not consent to the amendment, if the amendment occurs at an IEP team meeting.  Further, the panel rejected the parents’ argument that “the school district must present a complaint, request a due process hearing, and bear the burden of proof at the hearing before the amendment can be implemented.”

The panel stated: “We are unable to identify anything in the statute that suggests Congress intended to require school districts to present a complaint and prevail at a due process hearing in order to amend an IEP if the parents do not consent.”  The panel concluded:

The parents’ proposed interpretation has no support in the complex and detailed statutory provisions enacted by Congress and would effectively foreclose any changes to the IEP by the team without the parents’ consent.

The panel also rejected the parents’ reliance on the Supreme Court’s decision in Schaffer v. Weast, 546 U.S. 49, 53 (2005), where the Court stated: “If parents believe that an IEP is not appropriate, they may seek an administrative ‘impartial due process hearing.’  § 1415(f).  School districts may also seek such hearings . . . They may do so, for example, if they wish to change an existing IEP but the parents do not consent, or if parents refuse to allow their child to be evaluated.”  The panel concluded that this “dicta” was not controlling because the “question at issue in Schaffer was which party bears the burden of proof, not which party must present a complaint and seek a due process hearing.”

As to the other issues, the panel found that the case was not moot, applying the “capable of repetition, yet evading review” exception.  It also ruled that any procedural deficiencies in the school district’s IEP notice to the parents did not result in a violation of the IDEA warranting relief because no prejudice or harm resulted.  The panel upheld the district court’s discretionary authority not to take additional evidence.  Lastly, the panel rejected the parents’ argument that it had a § 1983 claim for statutory violations of IDEA.  It stated:

We join the First, Third, Fourth, Ninth, and Tenth Circuits, and hold that section 1983 actions for denial of rights conferred by the IDEA are barred because the IDEA’s comprehensive enforcement scheme provides the sole remedy for statutory violations.

K.A. v. Fulton Cnty. Sch. Dist., No. 12-15483 (11th Cir. Dec. 20, 2013)

[Editor's Note: In April 2013, Legal Clips summarized an article in the StateImpact reporting that under current law schools decide whether to move a disabled student into special education classes, but a bill in the Florida legislature would give parents of children with special needs more power over their education.  The proposed legislation would give parents of special needs kids the final say about their child’s education.  If a school district wants to override a parent’s decision, it would have to convince a judge.  This legislation, known as the Exceptional Student Education Act, was signed into law on July 1, 2013.]

Federal court rules Pennsylvania district did not violate § 504 by having tree-nut allergic student eat lunch at desk in cafeteria or retaliate by filing truancy action upon student’s withdrawal

T.F. v. Fox Chapel Area Sch. Dist., No. 12-01666 (W.D. Pa. Nov. 5, 2013)

Abstract: A federal district court in Pennsylvania has ruled that a school district did not discriminate against a student with a severe tree nut allergy in violation of § 504 of the Rehabilitation Act.  The court found that the school district had offered reasonable accommodations and was not deliberately indifferent to the parents’ claims of peer harassment.  It also concluded that the school district had not retaliated against the student’s parents when they filed a truancy petition after the parents withdrew the student from school.

Facts/Issues:  T.F. attended kindergarten at Fairview Elementary School (FES) in the Fox Chapel Area School District (FCASD) from August 2010 to December 2010.  He suffers from a severe tree nut allergy, which is a recognized disability under § 504.  FCASD had adopted a food allergies policy in May 2010, but T.F.’s parents did not learn of it until the administrative hearing in the case commenced.

In May 2010, T.F.’s parents expressed interest in enrolling T.F. at FES and requested a meeting to establish a § 504 plan.  The meeting took place in June 2010, during which FCASD proposed the following accommodations: 1) T.F. would not be given any food while at FCASD unless provided by his parents; 2) FCASD would provide an emergency care plan to teachers, cafeteria staff, and custodial staff; 3) a nurse or parent designee would go on T.F.’s field trips; and 4) in case of medical emergency, FCASD was to call (a) 911; (b) Andrew J. MacGinnitie (T.F.’s physician), and (c) T.F.’s parents.

In August 2010, the parents formally rejected FCASD’s proposed service plan. T.F.’s doctor sent a letter recommending that T.F. sit at a nut free table due to his allergies.  At a second meeting in August, T.F.’s parents proposed that T.F. not be required to sit alone in the cafeteria.  FCASD declined to incorporate the parents’ requested accommodation on three grounds: 1) “part of the routine things that happen in the building at school” [sic]; 2) the 504 Plan only addressed issues that were done differently for T.F. than for other students covered by the district’s food allergies policy; and 3) FCASD wanted the 504 Plan to be understandable and not too long.

The school’s proposed 504 plan was amended several times and ultimately included the following additional accommodations: 1) during lunchtime, T.F. would be seated at “tree nut free” table which was, in fact, a student desk; 2) a treat box would be provided by the parents to T.F. on occasions such as classroom parties and birthdays; 3) Fox Chapel would provide and T.F. would be permitted to purchase a tree nut free lunch, in a sealed wrapper; 4) T.F.’s teacher would keep a tree nut-free snack to provide T.F. when other students were receiving snacks; 5) a staff directive would be issued to follow a food allergy plan, including the use of an EpiPen in case of severe reactions; and 6) T.F.’s cafeteria table (separate student desk) would be cleaned with a cleaner that removes food allergens.

T.F.’s treating physician then requested that T.F. be seated at a rectangular table, on the end cap with a two foot buffer from his fellow students seated at the same table, and that the others at the table also maintain a nut-free lunch. That accommodation was denied because school officials believed the current seating arrangement was appropriate.

The parents also claimed that T.F. was teased and bullied as a result of eating alone, that he experienced anxiety as a result of the seating arrangement, that the school unlawfully disclosed his condition to parents, that T.F. suffered allergic reactions from being exposed to nuts at school, that the school nurse communicated with T.F.’s doctor without parental permission, that the school did not respond to repeated requests for information on the school’s Food Allergy Policy, and that substitute teachers were not trained on the plan.

On November 12, 2010, the parents informed the principal that they were withdrawing T.F. from Fox Chapel.  Fox Chapel filed a citation for truancy against the parents on November 18, 2010.  The district did not pursue the citation after five scheduled hearings were continued.  FCASD withdrew the citation in April 2011.

In December 2010, the parents enrolled T.F. in a cyber-charter school for the remainder of the 2010-11 school year.  He was enrolled in a private school for the 2011-12 school year where he remains enrolled.  In February 2012, the parents filed a due process complaint on T.F.’s behalf, seeking compensatory damages.  The hearing officer (HO) found FCASD had met all FAPE obligations to T.F. under § 504.  The HO further found, however, that FCASD had retaliated against T.F. in maintaining the truancy proceedings.  Both the parents and FCASD appealed that portion of the HO’s decision that was adverse to them.

Ruling/Rationale: The district court upheld the HO’s determination that FCASD did not violate § 504 and had provided T.F. with a FAPE at all times.  It also reversed the HO’s ruling that the school district had retaliated against T.F. by maintaining the truancy complaint.

In order to prevail on a section 504 claim a plaintiff must prove that he: 1) has a disability; 2) was otherwise qualified to participate in a school program; and 3) was denied the benefits of the program or was otherwise subject to discrimination because of his disability.  Only the third element was in issue.

T.F. was seeking compensatory damages, and as a result the court found that he must prove that the discrimination was the result of FCASD’s deliberate indifference.  Under that standard, the court stated T.F. must prove that: 1) FCASD knew that a federally protected right was substantially likely to be violated and 2) FCASD failed to act despite that knowledge.  Although plaintiffs are not required to show ill will or personal animus, they must show “deliberate choice, rather than negligence or bureaucratic inaction.”

The court rejected T.F.’s factual allegations on which he based his claim of deliberate indifference.  It found that the facts, as cited by T.F., not only did not demonstrate deliberate indifference, but “demonstrate quite the opposite.” The court concluded that FCASD took “reasonable steps to accommodate [T.F.’s] disabilities and include [him] in all class activities; it was not required to grant the specific accommodations requested by Parents or otherwise make substantial modifications to the programs that were used for all other students.”

The court determined that at best the facts as presented by T.F. proved “no more than arguably mere negligence on the part of [FCASD].”  It stated: “The evidence as a whole demonstrates that Fox Chapel considered Plaintiffs’ concerns in formulating plans along with all of the professionals involved (T.F.’s physician, school nurse, guidance counselor, principal etc.).”  It determined that even the lunch room desk situation, which T.F. made a linchpin of his discrimination claim, fell “far short of establishing deliberate indifference to T.F.’s needs.”

The court stated that for T.F. to succeed on his peer harassment claim he must prove that: 1) he was harassed on the basis of his disability; 2) the alleged harassment was so severe, pervasive and objectively offensive that it altered the condition of his education; 3) the school district had actual notice about the disability-based harassment; and 4) the school district was deliberately indifferent to the harassment.  The court concluded that “any teasing T.F. experienced did not rise to the level of severe, pervasive or objectively offensive to the point that it altered the condition of his education; nor could Plaintiffs succeed in showing that Fox Chapel was deliberately indifferent to the alleged harassment.”

The record appeared to show that some of the school’s actions and treatment of the parents were less than ideal.  The court emphasized that mere negligence was insufficient when the cause of action required a showing of deliberate indifference:

In sum, this Court’s role is not to determine whether Fox Chapel could have endeavored in some way to address Plaintiffs’ concerns in a more orderly or reasoned way, but only to determine if Plaintiffs have presented sufficient evidence to demonstrate Fox Chapel’s deliberate indifference.  When the totality of Fox Chapel’s conduct is reviewed, accepting the deficiencies alleged by Plaintiffs, Plaintiffs have failed to establish a violation of any federally protected right or that Fox Chapel exhibited any deliberate indifference towards them because of T.F.’s disability.

The court also rejected the parents’ retaliation claim, reversing the Hearing Officer.  It stated that in order to prove a retaliation claim under § 504, T.F. must show that: “(i) [he] was engaged in protected activity; (ii) the alleged retaliator knew the plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.”  The plaintiffs satisfied the first three elements, but the question of causation was disputed, as was the appropriate standard for determining causation.  The plaintiffs argued for an “in part” standard and the defendants argued for a “but for” standard.

The court agreed with FCASD that the but-for test should applied, relying on Third Circuit case law and the Supreme Court’s recent decision in University of Texas Southern Medical Center v. Nassar, ___U.S.___, 133 S.Ct. 2517, 2525 (June 24, 2013)(holding that but-for causation is the standard for Title VII retaliation claims).  Under that standard, T.F. “must demonstrate that the desire to retaliate was the “but for” cause of the filing and continuation of the truancy proceedings.”  The court concluded that T.F. had failed to show “a causal connection between any of the alleged protected activities and [FCASD’s] requests to indefinitely continue the truancy proceedings.”  The court rejected T.F.’s allegations that FCASD “subject[ed] the family to multiple truancy proceedings,” finding that the continuances occurred because both parties agreed that the complaint be indefinitely continued.

 T.F. v. Fox Chapel Area Sch. Dist., No. 12-01666 (W.D. Pa. Nov. 5, 2013)

[Editor's Note: In November 2012, Legal Clips summarized an article in the Pittsburgh Post-Gazette reporting on the filing of this suit.]

Pennsylvania federal court grants preliminary injunction allowing female student to participate on junior high school’s all male wrestling team

Beattie v. Line Mountain Sch. Dist., No. 13-02655 (M.D. Pa. Jan. 13, 2014)

Abstract: A federal district court in Pennsylvania has issued a preliminary injunction ordering a school district to allow a female student-athlete to participate on the junior high school’s all male wrestling team pending a decision on the merits of the student’s claim.  It concluded that she was likely to prevail on the merits of her Fourteenth Amendment equal protection claim because none of the three reasons the school district articulated demonstrated an “exceedingly persuasive justification” for the prohibition.

The court also concluded that the student-athlete was likely to succeed on her claim under the Pennsylvania Equal Rights Amendment.

Facts/Issues: A.B. is a 12 year old, female seventh grader at Line Mountain Middle School in Line Mountain School District (LMSD).  She has participated on school wrestling teams since the third grade.  In the 2012-13 school year, A.B participated on the Line Mountain youth team, which is open to boys and girls through grade 6.  On the youth team, A.B. wrestled against both girls and boys, including some high school boys.  She participated in every dual meet, and had a record of 5-3 against boys and one girl.  A.B. also participated in wrestling tournaments against boys, and achieved second and third place finishes.  No boy refused to wrestle her.

LMSD’s Gender Participation on Athletic Teams Policy prohibits female students from participating on male varsity, junior varsity, and junior high athletic teams, except for teams specifically designated as co-ed, because of safety concerns regarding the “physiological difference between male and female athletes.”  Pursuant to that policy, LMSD prohibits girls from participating on boys’ junior high and high school wrestling teams.

LMSD articulates three reasons for the policy.  First, based on anatomical differences between males and females, boys are generally stronger and have less body fat than girls.  This places girls at greater risk of injury than boys.  Second, girls face a greater risk of inappropriate sexual contact and harassment when wrestling based on obvious anatomical differences.  Third, there are perceived emotional, psychological, and moral risks associated with girls wrestling boys.  

A.B.’s father filed a complaint with the Pennsylvania Human Relations Commission (PHRC).  He asked the PHRC for a preliminary injunction to allow A.B. to wrestle on the team, but was denied.  A.B’s father, with the assistance of the Women’s Law Project, subsequently filed suit in federal district court against LMSD, and at that point withdrew the PHRC complaint. The suit claims that LMSD’s policy violates the Fourteenth Amendment’s Equal Protection Clause and the Pennsylvania Equal Rights Amendment.  A.B. seeks a preliminary injunction barring LMSD from enforcing its policy of prohibiting girls from participating on the boys’ wrestling teams.

Ruling/Rationale: The district court granted A.B.’s motion for a preliminary injunction barring LMSD from enforcing its policy pending a decision on the merits. It concluded that A.B. satisfied the four elements necessary to obtaining injunctive relief: (1) reasonable probability of success on the merits; (2) irreparable harm to the movant if the injunction is denied; (3) the harm to non-moving party will not be greater if the injunction is granted; and (4) granting the injunction is in the public interest.

The district court first examined the equal protection claim.  Because the policy involved a classification based on gender, it found LMSD must demonstrate that there is “an exceedingly persuasive basis for the classification.”  Applying the intermediate scrutiny standard, the court pointed out that the classification must be “substantially related to an important governmental objective.”  The court cautioned that gender classifications that rely on overbroad generalizations would not be sufficient.  The government’s justification must be genuine, and not created as a response to the litigation.  Moreover, even a true generalization is insufficient if applied to an individual to whom it does not apply.

The court rejected LMSD’s safety argument.  It pointed out that LMSD had presented no evidence that A.B. is at greater risk because of her gender, other than generalized assumptions.  No female wrestler had been injured from wrestling boys, including A.B.  The school district acknowledged that boys are also at risk, yet any boy can join without any requirement as to size, strength, speed, or any other factor that could have an effect on safety.  LMSD also agreed that some girls would be stronger than some boys.  Consequently, the school district failed to prove that the policy substantially related to credible safety concerns.

LMSD also cited concerns over inappropriate contact and the need to prevent sexual harassment and misconduct as a policy rationale.  The court found that reason deficient because the school district had failed to provide any instances of males inappropriately touching females while wrestling or of any female wrestler making a complaint, male wrestlers could have inappropriate contact with another male wrestler, and A.B.’s testimony that she had not experienced any instances of inappropriate touching in the past and, if it did occur, she would know how to handle it.  In addition, the court dismissed LMSD’s concern that allowing girls to wrestle would make it more difficult to prevent sexual harassment, saying that the evidence presented by LMSD was nothing more than conclusory assertions and that the school district’s sexual discrimination policy provided an enforcement vehicle.

Finally, the court concluded that LMSD’s “moral concerns” reason lacked merit because LMSD failed to support it with any expert testimony.  As a result, the evidence failed to demonstrate that the moral concerns asserted by LMSD rise to the level of an important government interest.

The court concluded that A.B. was likely to succeed on the merits on her Equal Protection Clause claim, as well as on her Pennsylvania ERA claim.

The court further determined that A.B. had satisfied the other elements required to obtain injunctive relief, emphasizing that the deprivation of a constitutional right constitutes irreparable harm as a matter of law, that A.B. would suffer irreparable harm in her development as a wrestler if the injunction was not issued because there are no other opportunities that provide the same frequency and quality of wrestling, and that the school district’s safety argument is unsupported by competent evidence or case law.

Beattie v. Line Mountain Sch. Dist., No. 13-02655 (M.D. Pa. Jan. 13, 2014)

[Editor's Note: In November 2013, Legal Clips summarized an article in the News-Item reporting that 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.  The LMSB rejected Masser’s motion, which also asked the board to withdraw from the federal lawsuit filed by the student’s parents.]

High school lacrosse players sue Maryland district over search of equipment bags and suspension for stick tools after suspensions reversed on appeal

The Washington Post reports that two former high school lacrosse players have filed suit in federal court alleging that Talbot County, Maryland school officials conducted an unconstitutional search of their lacrosse equipment bags in 2012 that turned up two small knives and a lighter.  That discovery led Talbot school officials to suspend them for having dangerous weapons.  The students appealed their suspension to the Maryland State Board of Education (MBE) and, in a rare reversal of a local school system disciplinary decision, the MBE overturned the suspensions and ordered the school district to expunge the disciplinary actions from the students’ records.

The suit contends school officials violated the students’ constitutional rights to due process and their protections against unreasonable search and seizure when they boarded the team bus to investigate a tip about alcohol and took action against them for items the students said they used to maintain their lacrosse equipment.  The Rutherford Institute, a civil liberties advocacy firm, filed the suit on behalf of the former students seeking monetary damages from the Talbot County school board and four current or former school officials. The Post article pointed out the suit was filed on the cusp of the U.S. Department of Education having issued guidance urging school districts to use out-of-school suspensions as a disciplinary action of last resort.

The search began when school officials boarded a team bus to investigate a alcohol tip.  During the search, Graham Dennis, then a 17-year-old junior, volunteered that he had a small knife, which he used to fix his lacrosse sticks, inside his gear bag.  School officials took the knife as well as a Leatherman tool they found and called police.  The teenager was led away in handcuffs and suspended for 10 days.  A teammate, Casey Edsall, also a 17-year-old junior at the time, was suspended for having a lighter in his gear bag.  The teenager said it was used to seal the frayed ends of strings on his lacrosse stick.

In the MBE’s 2012 ruling, it conceded that knives and lighters don’t belong at school but concluded that “this case is about context and about the appropriate exercise of discretion.”  The MBE noted the coaching staff had tacitly approved the use and possession of the items and that players had openly used them on the bus.

Laura Dennis, mother of the teen most harshly punished, said the case took a toll on her son, who is 19, as he applied for college.  She said many applications have questions about disciplinary history, and his case was classified as a weapons offense.  He limited his college search, accepting a spot at a school that was not a good fit, she said.  He transferred a year later, she said

Andrew W. Nussbaum, an attorney representing the school system in the case, said Talbot would be filing a written response. Talbot officials have not argued that the students intended to harm others, but in case documents they have said the items were not permitted at school and were potentially dangerous. “We consider bringing a knife to school one of the most serious offenses that a student can commit,” a school board majority wrote.

Source: The Washington Post, 1/20/14, By Donna St. George

[Editor's Note: The former students' suit alleges that the search violated the 4th Amendment and the suspensions violated the 14th Amendment's due process protections.  Similar claims are filed under state constitutional provisions.  The suit seeks compensatory damages, punitive damages, and attorneys' fees.  The suit includes copies of the local school board's decision and the decision of the Maryland State Board of Education .

In January 2014, Legal Clips summarized an article from mlive reporting that the Vera Institute of Justice had issued a report that found that zero tolerance policies are having little to no effect on student classroom behavior.  The report states: ”No studies show that an increase in out-of-school suspension and expulsion reduces disruption in the classroom and some evidence suggests the opposite effect.” ]

Michigan enacts legislation requiring schools to stock epi pens

An Associated Press (AP) story on CBS Detroit reported that on December 18, 2013 Michigan Gov. Rick Snyder signed laws requiring every public school in Michigan to have epinephrine injectors to treat allergic reactions.  The legislation also requires schools to have two epinephrine devices starting next academic year and ensure that at least two staff members are trained to use them.

The legislation was spearheaded in part by the No Nuts Moms Group.  Lisa Rutter, a parent whose son is allergic to nuts, founded the organization two years ago and has seen roughly 50 chapters sprout up across the U.S. and in some other countries.

Source: CBS Detroit, 12/18/13, By AP

[Editor's Note: On October 27, 2013, Crystal Garcia of The Times Herald reported that The Michigan House passed two bills requiring schools to have two epinephrine injectors (EpiPens) and allowing doctors and pharmacies to prescribe and dispense them to school boards.  The bills then went to the Michigan Senate, which approved them and sent the legislation on to the governor for his signature into law.]

National School Boards Associations’ Council of School Attorneys – Webinar Archive

National School Boards Associations’ Council of School Attorneys – Webinar Archive

Available at: http://allendsmeet.com/cosa/

Recorded school law webinars available at the click of a button!

Designed for school attorneys and their school district clients, COSA’s school law webinars provide 60 minutes of detailed discussion on “hot,” as well as “bread and butter” topics, such as The Family Rights and Privacy Act; The Affordable Care Act; Labor Relations; OCR Investigations; Special Education; Sexual Harassment, and much more.

Visit the webinar archive site at http://allendsmeet.com/cosa/ for a complete list of available webinars.

California district agrees to OCR monitoring of special education program

The San Ramon Valley Unified School District (SRVUSD) has agreed to the monitoring of its special education program for the next two years by the U.S. Department of Education’s (ED) Office for Civil Rights (OCR), reports the Contra Costa Times.  SRVUSD was the subject of two disability-based discrimination claims by two sets of parents between 2012 and 2013.

In a May 2013 complaint to OCR, the parents of an autistic student alleged that his class of special education students was discriminated against when they were excluded from an otherwise all-school sixth-grade field trip to a local museum.  The parents also complained about the complete lack of information posted about their son’s special education assignments and grades on the online School Loop system, used by the district’s general education teachers, parents and students.

That investigation closed on November 25, 2013, when SRVUSD agreed to revamp its policies and train and monitor staff to ensure students are not discriminated against.  The earlier OCR investigation was resolved in October 2012 when the school district adopted and circulated new procedures that promised “to provide [disabled students] accommodations to permit participation” in extracurricular field trips.  The procedures also stipulated that field trip information given to parents of other students “must be provided to parents or guardians of students with disabilities,” something the May 2013 complainant did not receive.

Judith Cameron, SRVUSD’s new special education program director, is committed to better results.  “The district is taking this very seriously,” said Cameron.  “You can have procedures, but if you don’t have the training and accountability, then it gets lost.”

Cameron will reinforce and rewrite district policies to specify that only a special education student’s Individualized Education Program team, comprising a parent or guardian, teacher, and program specialist, can decide to deny a student participation in a field trip.  Cameron will also train and monitor school sites to make sure they do not run afoul of anti-discrimination laws and will give a report of her findings to the superintendent and the Office for Civil Rights at the end of each semester.

Source: Contra Costa Times, 12/11/13, By  Ashly McGlone

[Editor's Note: In October 2012, Legal Clips summarized an ED press release announcing that OCR had entered into a resolution agreement with the East Orange School District in New Jersey to resolve compliance concerns identified by OCR, under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act, during its investigation of the district’s special education program.  The resolution will ensure that special education students in this largely minority school district are not inappropriately separated from their peers during the school day.  OCR did not make a determination of whether or not the district was in compliance with Section 504 or the ADA.] 

Florida court rules that SRO search of student’s book bag for a firearm based on anonymous tip did not violate 4th Amendment; reasonable suspicion standard applied to SRO’s search

K.P. v. State of Florida, No. 3D 12-1925 (Fla. App, Ct. Dec. 26, 2013)

Abstract: In a 2-1 split, a Florida Third District Court of Appeals panel upheld a juvenile court’s denial of a student’s motion to suppress evidence of a firearm found during a search of the student’s book bag by a school resource officer.  The search was based on an anonymous tip.  The appellate court’s majority concluded that given the reduced expectation of privacy, the moderate intrusiveness of the search, the gravity of the threat, and the reduced level of reliability necessary to justify a protective search, the decision to search the student’s book bag was reasonable under the Fourth Amendment.

Facts/Issues: After the Miami-Dade County Police Department Gun Bounty Program received an anonymous tip that K.P., a student at Miami Northwestern Senior High School (NSHS), was possibly in possession of a firearm, it passed the tip on to a school resource officer (SRO) assigned to NSHS.  The school resource officer was employed by the Miami-Dade County Schools Police Department and assigned to the high school.  The SRO notified the assistant principal and school security guards of the tip.

The assistant principal and two school security guards went to K.P.’s classroom, took possession of K.P.’s book bag, and escorted K.P. to the principal’s conference room.  The assistant principal handed K.P’s book bag to the SRO, who searched the book bag in K.P.’s presence and discovered a loaded, semi-automatic handgun.

K.P. was charged in juvenile court with carrying a concealed weapon, possession of a firearm on school grounds, and possession of a firearm by a minor.  He moved to exclude the handgun from evidence, arguing that the search of his book bag violated his Fourth Amendment right to be free from unreasonable searches and seizures.  The juvenile court denied the motion, and K.P. appealed.

Ruling/Rationale: The appellate panel’s two judge majority affirmed the juvenile court’s denial of the motion to suppress.  It first addressed the circumstances under which a search based on an anonymous tip will satisfy the Fourth Amendment.  The majority found that such a tip would generally withstand scrutiny “only if the tip contains sufficient details and information that can be independently corroborated by the police to establish a level of reliability regarding the information in the tip.”  Against this general rule, however, the majority added that “the level of reliability that an anonymous tip must demonstrate in order to satisfy the Fourth Amendment is lower both when an extraordinary danger is threatened and where legitimate expectations of privacy are reduced.”  Weapon possession is one area category of extraordinary danger, and schools are places where expectations of privacy are reduced.

The majority was also guided by this passage from the Supreme Court’s decision in Florida v. J.L., 529 5 U.S. 266, 274 (2000)(internal citations omitted):  “Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports and schools, cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.”

The majority noted that the Supreme Court established a more relaxed standard than probable cause–a standard of reasonable suspicion– in New Jersey v. T.L.O., 469 U.S. 325 (1985), for searches conducted in the school setting.  Citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995), the majority stated that whether a “search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”  Noting that the threats in T.L.O. and Acton were cigarette and drug use, respectively, it emphasized that the threat in the present case, i.e., a firearm on school grounds, was a more immediate and graver threat.

Given the paramount importance of school officials addressing the issue of violent crime in schools, the majority found that the “government’s interest in protecting students from gun violence is entitled to substantial weight when deciding whether a particular search at a school is reasonable under all of the circumstances.”

Applying the Fourth Amendment standard of looking at the totality of the circumstances, the majority balanced K.P.’s expectation of privacy in his book bag, the intrusiveness of the search, and the government’s interest in conducting the search.  The majority noted that “K.P.’s expectation of privacy was tempered by the special characteristics of the school setting,” and concluded that the search was only moderately intrusive.  Because the majority had “little difficulty holding that firearms at schools represent a heightened danger,” it concluded that the government’s interest in conducting the search was substantial.

Noting that the Fourth Amendment requires that search of a student be “justified at its inception,” the majority returned to the general rule that an anonymous tip will not justify a search unless it includes details that establish its reliability.  The majority said that “the level of reliability required to justify a search is less where the danger is sufficiently heightened and the expectation of privacy is reduced,” which was the case here.

The majority, therefore, held: “Given the reduced expectation of privacy, the relatively-moderate intrusiveness of search, the gravity of the threat, and the consequent reduced level of reliability necessary to justify a protective search, the decision to search K.P.’s book bag was reasonable.”

The majority’s only reference to the fact that K.P.’s book bag was searched by an SRO came in its analysis of the intrusiveness of the search.  The majority, concluding that “the intrusiveness of the search at issue was not disproportionate,” added: “This analysis is not altered because the search was conducted by a school resource officer assigned full time to work at the school because such an officer is more akin to a school official than an officer on the street and the purpose of the search was to protect students, not to establish guilt.  M.D. v. State, 65 So. 3d 563, 566-67 (Fla. 1st DCA 2011).”

The dissenting opinion argued that the standard of reasonable suspicion was not satisfied.  It stated that “the uncorroborated, unenhanced anonymous tip received by the school in this case was legally insufficient to satisfy that standard.”  It contended that at best the tip justified no more than an initial examination of the book bag’s exterior.

K.P. v. State of Florida, No. 3D 12-1925 (Fla. App, Ct. Dec. 26, 2013)

[Editor's Note: In August 2012, Legal Clips summarized a decision by the Supreme Court of the State of Washington in State v. Meneese holding that a school resource officer (SRO), who is an employee of the local police department, violated a student’s right to be free from unreasonable search and seizure under the federal and state constitutions when he searched the student’s locked back pack after arresting the student and handcuffing him.  The court’s majority concluded that the “school search” exception did not apply to the SRO’s search.  The majority concluded that the “school search” exception to the requirement for a warrant did not apply, because at the time the SRO executed the back pack search, he was acting as a police officer, and not a school official.

In May, 2013, Legal Clips summarized the Kentucky Supreme Court's decision in N.C. v Kentucky, holding that a student was entitled to Miranda warnings before being questioned by an assistant principal in the presence of an SRO.  NSBA joined the Kentucky School Boards Association in filing an amici curiae brief asking the U.S. Supreme to review the N.C. v. Kentucky decision.]

Suit claims school officials’ overreaction to drawing led to home search, incarceration, arrest, and suspension of disabled student

According to Courthouse News Service, the parents of a New Jersey high school student, who has Asperger’s syndrome and attention deficit hyperactivity disorder, have filed suit against the Greater Egg Harbor Regional High School District Board of Education, a number of school officials, the county prosecutor’s office, and the local police department after New Jersey high school officials and police sent a bomb squad to the student’s home and arrested him upon seeing his doodles of a superhero glove with a flame coming out of it.  The events began when the student’s geometry teacher noticed him working on the sketch in class.  The sketch was “an updated version of a drawing” he had been doodling with for two years at home, according to the complaint.

The suit alleges that based solely on a review of the sketch, the student was held in the vice principal’s office while the vice principal called the police.  The police, along with the fire department, emergency medical workers and a bomb squad, were dispatched to the student’s home.  The school also summoned bomb-sniffing dogs to go through the campus “causing panic in school and among the community,” says the suit.

The search of the home netted no explosives, only supplies the student uses for his science and engineering homework.  Nonetheless, the student was held in juvenile detention center for 16 days, the suit claims, where he was strip searched and cavity searched.  After being released he was placed on house arrest and had to wear an ankle bracelet for 5 months.  Even though he was cleared of criminal charges at or before trial, the suit alleges that the school tried to expel him, and still refuses to let him return to class.

“K.J. expresses himself through his drawings,” his parents say.  “He doodles at school and that helps him concentrate and focus in class.  His IEPs [individual education plans - required by law for students with disabilities] note that he doodles and draws in class.”

The suit also charges that the school district “harassed, intimidated, bullied, retaliated against, and cyber-bullied” the student.  The parents are seeking actual damages, statutory damages and punitive damages on 12 counts, including malicious prosecution, intentional infliction of emotional distress, denial of education, discrimination, constitutional violations, deprivation of freedom, harassment, state and federal civil rights violations, and defamation.

Source: Courthouse News Service, 1/13/14, By Staff

[Editor's Note: In March 2012, Legal Clips summarized a decision by the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) in Cuff v. Valley Cent. Sch. Dist. holding that a school district did not violate a student’s free speech rights when it imposed a six day suspension on him for drawing a picture in class expressing the desire to commit violence against the school and teachers.  The majority concluded that school officials reasonably forecast that the student’s picture would result in substantial disruption to school operations. The test should be an objective one, the court found, focusing on the reasonableness of school officials’ response, rather than the student’s intentions.] 

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