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Texas judge extends restraining order prohibiting district from enforcing ban of cheerleaders’ religious banners at football games

The New York Times reports that Hardin County District Court Judge Steven Thomas has extended a restraining order which prohibits the Kountze Independent School District (KISD) from banning the display at football games of the cheerleaders’ banners containing bible verses. A banner, and other religious-themed signs made by the high school and middle school cheerleading squads in recent weeks, has embroiled this East Texas town in a heated debate over God, football and cheerleaders’ rights.

School district officials ordered the cheerleaders to stop putting Bible verses on the banners, because they believed doing so violated the law on religious expression at public school events. In response, a group of 15 cheerleaders and their parents sued KISD and its superintendent, Kevin Weldon, claiming that prohibiting the students from writing Christian banner messages violated their religious liberties and free-speech rights.

The superintendent’s decision has outraged many students and their parents, and has brought national attention upon a small town outside Houston. The cheerleaders’ supporters have put up lawn signs and started a Facebook page that, with nearly 50,000 members, far exceeds the town’s population of 2,100. The Texas attorney general, Greg Abbott, offered to defend the cheerleaders’ First Amendment rights and wrote a letter to the superintendent saying that the decision to ban the religious messages was based on erroneous legal advice.

Recently, the two sides met in a courtroom on the second floor of the Hardin County Courthouse. Each side’s lawyers cast their clients as courageous: The teenage cheerleaders, for standing up to the school district to protect their religious views, and Weldon, himself a Christian and a former football coach, for taking an unpopular position in a largely conservative Christian town in order to, as he sees it, uphold the law.

After a daylong hearing that included the testimony of two cheerleaders, District Judge Steven Thomas of Hardin County decided to extend for an additional 14 days more a temporary restraining order that he had put in place two weeks ago. The move prevents district officials from enforcing the ban on religious signs for 14 days and allows the cheerleaders to continue to create and display the banners at the home game on Friday night as well as other coming games. It seemed likely that the judge would hold another hearing in two weeks.

Judge Thomas issued the first temporary restraining order on Sept. 20, and called the hearing on Thursday to determine whether to turn that order into a more extensive temporary injunction. At the end of the hearing, he postponed ruling on a temporary injunction, saying that he needed more time and additional information from both sides. In the morning, the hearing was delayed for hours as the two sides attempted, but ultimately failed, to reach a settlement.

Weldon and school district lawyers said his decision to prohibit the messages was based on a U.S. Supreme Court ruling in a Texas case, Santa Fe Indep. Sch. Dist. v. Doe, [530 U.S. 290 (2000)], which established that prayers led by students at high school football games were unconstitutional and had the improper effect of coercing those in the audience to take part in an act of religious worship.

While testifying on Thursday, Weldon – he and school board members had been subpoenaed, though Judge Thomas later nullified those subpoenas – said two lawyers he contacted, a district lawyer and a lawyer for the Texas Association of School Boards, advised him to prohibit the students from writing Bible verses. But he said that he supported the cheerleaders and that, as a Christian, he agreed with their religious viewpoints.

Weldon and lawyers representing the district have said that they would like to allow the cheerleaders to put religious messages on the banners, but a declaration from the judge was needed to determine whether the district is required to restrict such banners. During his testimony, Weldon said that his decision to prohibit the cheerleaders from putting Bible verses on the signs violated the school’s policies protecting students in expressing their religious viewpoints and discriminated against the cheerleaders.

One of the lawyers representing the students and their families, David Starnes, argued that the cheerleaders’ Bible-themed banners were protected private speech, not government-sanctioned speech, and that the Supreme Court’s ruling did not apply in this case because it had nothing to do with prayer. Cheerleading practice as well as banner-making occur after school on campus, and the squads are led by students, though adult advisers monitor and assist them. No school funds are used to purchase the banner supplies.

Source:  The New York Times, 10/04/12, By Manny Fernandez

[Editor's Note:  In September 2012, Legal Clips first reported this story, summarizing an article by the Associated Press in the Star-Telegram, which reported that a Texas state court had issued a temporary restraining order preventing KISD from enforcing its ban on displays of religious banners at football games. The ban on religious displays was put in place by KISD’s superintendent after receiving a letter from the Freedom From Religion Foundation.

In February 2012, Legal Clips summarized an article by the Associated Press in the Times-Union, which reported that the Cranston School Committee had voted 5-2 not to appeal a federal court decision ordering the removal of a prayer banner displayed in a high school, resulting from a lawsuit brought on behalf of a student at Cranston High School West.

In January 2012, Legal Clips summarized an article in the Rancho Bernardo Patch, which reported that the Thomas More Law Center (TMLC), a public interest law firm, had filed a petition for certiorari with the U.S. Supreme Court on behalf of Bradley Johnson, a teacher employed by Poway Unified School District, who was forced to remove banners containing religious messages from the walls of his classroom by Westview High School officials.  TMLC argued that school officials engaged in impermissible viewpoint discrimination on the basis of religion because another teacher was allowed to display a poster with the lyrics to John Lennon’s Imagine, which contains an anti-religious viewpoint.]

Federal appellate court rules that an IEP’s adequacy can only be evaluated prospectively from the time of its drafting

R.E. v. New York City Dep’t of Educ., Nos. 11-1266/11-1474/11-655 (2d Cir. Sept. 20, 2012)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Second Circuit (NY, VT, CT) has ruled that in determining whether an individual education program (IEP) has provided a disabled student with a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA), the adequacy of an IEP may only be evaluated prospectively as of the time the IEP is drafted, and, thus, “retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered” in a due process hearing. However, the panel rejected the rigid “four corners” rule that would prevent a court from considering evidence that explains in a detail the written terms of the IEP.

The panel also concluded that where the conclusions of the independent hearing officer (IHO) and the state review officer (SRO) conflict, the SRO’s conclusions should be given deference by the court unless the conclusions were inadequately reasoned. In addition, it determined that the procedural violation of failing to include a functional behavioral assessment (FBA) in the IEP was serious enough to constitute a denial of FAPE, while failure to include parent counseling in the IEP, standing alone, does not constitute a denial of FAPE.

Lastly, the panel concluded that the IEP’s failure to identify the exact school where the student would be placed does not constitute denial of FAPE. It stated that the “requirement that an IEP specify the ‘location’ does not mean that the IEP must specify a specific school site.”

Facts/Issues: In these three separate cases, parents of autistic children, R.E., R.K. and E.Z.-L., declined school placements offered by the New York City Department of Education (NYCDE) and placed their children in private schools. The parents brought due process claims against NYCDE for tuition reimbursement on the grounds that NYCDE’s public school placement offers for their children were inadequate.

In each case, the parents were initially granted relief following a hearing before an impartial IHO, but subsequently were denied relief after the IHO’s decision was reversed by the SRO on appeal. In each case, the SRO relied in part on testimony from Department personnel about the educational program the student would have received if he or she had attended public school.

In each case, the parents appealed to a federal district court, seeking to have the SRO’s determination reversed. The parents challenged the appropriateness of relying on such testimony, which the panel referred to in shorthand as “retrospective testimony,” and in two of the three cases they succeeded.

In R.E., the district court found that NYCDE failed to provide the student with FAPE and granted summary judgment for the parents. In R.K., a second district court similarly found that NYCDE failed to provide the student with FAPE and  granted summary judgment for the parents. In E.Z.-L., however, a third district court found that NYCDE had provided the student with FAPE and granted it summary judgment. NYCDE appealed the decisions in R.E. and R.K. The parents appealed the decision in E.Z.-L.

The Second Circuit panel consolidated the three cases, because even though the cases have individualized and unrelated facts, the cases all involve four common questions of law:

(1) When, if ever, is it permissible for a district to augment the  written IEP with retrospective testimony about additional services that would have been provided at the proposed placement;

(2) When an IHO and SRO reach conflicting conclusions, what deference should a court pay to each;

(3) At what point do violations of state regulations governing the IEP process amount to a denial of FAPE entitling the parents to reimbursement; and

(4) Must parents be involved in the selection of a specific school for their child?

Ruling/Rationale: The Second Circuit three-judge panel reversed the district court’s decision in R.E., finding that NYCDE did provide FAPE; affirmed the district court’s decision in R.K., finding that NYCDE failed to provide FAPE; and affirmed the district court’s decision in E.Z.-L., finding that NYCDE did provide FAPE.

(1) Retrospective Testimony

The panel concluded that the “use of retrospective testimony about what would have happened if a student had accepted [NYCDE's] proposed placement must be limited to testimony regarding the services described in the student’s [IEP].”

The panel stated that in all three cases, NYCDE offered retrospective testimony at the IHO hearing to overcome deficiencies in the IEP, and the SRO relied on this retrospective testimony in varying degrees to find that NYCDE had provided FAPE. Though the panel rejected the parents’ call to adopt a rigid “four corners” rule prohibiting any testimony about services beyond what is written in the IEP, it also rejected NYCDE’s counterargument that “review should focus on the services the child would have actually received[, ...] includ[ing] evidence of services beyond those listed in the IEP.” The panel stated that “[t]estimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.” However, the panel noted that testimony may be received that explains or justifies the services listed in the IEP.

The panel stated that “[a]t the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents.” The panel posited that “[b]y requiring school districts to put their efforts into creating adequate IEPs at the outset, IDEA prevents a school district from effecting this type of ‘bait and switch,’ even if the baiting is done unintentionally. A school district cannot rehabilitate a deficient IEP after the fact.”

Adopting the view of other federal circuits and of district courts within the Second Circuit, the panel concluded that “with the exception of amendments made during the resolution period, an IEP must be evaluated prospectively as of the time it was created.” It again emphasized that “[r]etrospective evidence that materially alters the IEP is not permissible.”

(2) Conflicting IHO and SRO Conclusions

We must give “due weight” to the state proceedings, mindful that we lack “the specialized knowledge and experience necessary to resolve … questions of educational policy,” and that it is not for the federal court to “ch[oose] between the views of conflicting experts” on such questions. The panel held “a court must defer to the SRO’s decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a better reasoned IHO opinion may be considered instead.”

(3) Procedural Violations of the IDEA

The panel held that failure to conduct an FBA does not rise to the level of a denial of FAPE if the IEP adequately identifies the problem behavior and prescribes ways to manage it. The panel also determined that failure to include parent counseling in the IEP, standing alone, does not result in denial of FAPE, as “the presence or absence of a parent-counseling provision does not necessarily have a direct effect on the substantive adequacy of the plan.”.

(4) Exact School Named in the IEP

The panel concluded that the IEP’s failure to identify the exact school where the student would be placed does not constitute denial of FAPE, pointing out that the “requirement that an IEP specify the ‘location’ does not mean that the IEP must specify a specific school site.” It noted that a school district may select the specific school, without the advice of the parents, so long as it conforms to the program offered in the IEP.

R.E. v. New York City Dep’t of Educ., Nos. 11-1266/11-1474/11-655 (2d Cir. Sept. 20, 2012)

[Editor's Note: In January 2012, Legal Clips summarized a Seventh Circuit (IL, IN, WI) panel's decision in M.B. v. Hamilton Southeastern Sch., which held that neither a school district’s procedural errors nor its substantive errors in developing a special education student’s IEP under IDEA resulted in denial of a FAPE.]

Iowa judge orders board members to jail for failing to reinstate high school principal

As reported in the Quad City Times, Cedar County District Judge Mark Smith has ordered members of the Durant School Board to serve 30 days in the Cedar County Jail for violating a court order in how the board was to restore Monica Rouse to her job as Durant High School principal.

In his written ruling, Judge Smith wrote that “[g]iven the actions of the school board members, the Court finds that they should be individually fined the sum of $500 and shall serve 30 days in the Cedar County Jail.” Judge Smith said, however, that school board members could avoid the contempt ruling by giving Rouse “all of her duties, privileges, authority and rights that she enjoyed prior to her termination as principal of Durant High School.” It is not clear how much time the board has to comply.

The three-year legal battle began when Rouse was escorted off the school grounds Sept. 17, 2009, by then-Superintendent Duane Bark. Rand Wonio of the Davenport law firm Lane & Waterman, which is representing the school district, released a statement Friday on behalf of the school board, saying it will “review the order with counsel and determine how to proceed in the very near future.” Superintendent Duane Bennett said Friday the board will react to the judge’s order after its next meeting. He declined further comment.

The Durant Community School District distributed an agenda for a special board meeting at 6 p.m. Monday at the school for a closed session to “discuss matters that are presently in litigation.” “They need to react to the ruling on Monday,” Rouse’s attorney, Cathy Cartee of Davenport, said. “I expect compliance by Monday. If they haven’t complied with the court order by Monday afternoon, I’m going to ask that they go to jail.”

The board had voted to fire Rouse in March 2010, claiming various counts of wrongdoing. Rouse was principal for 11 years before the board fired her. She appealed her termination to the Iowa Supreme Court and won earlier this year, returning to work April 23.

Bennett and Fargo, the school board president, admitted at an Aug. 27 contempt hearing that Rouse was not allowed access to student records, to her old computer or to the entire Durant High School facility for several months after she returned as principal.

Rouse testified that district leaders directed her not to interact with students or staff and denied her an office with the other administrators, including Anthony Neumann. Neumann was hired as high school principal while the school board was appealing a district court’s decision to reinstate Rouse. He has been rehired as co-principal for the current school year. Fargo testified the board met April 12 about Rouse and directed Bennett to divide principal duties between her and Neumann.

Smith talked about Neumann’s status in his ruling, saying the board can keep Neumann but not prevent Rouse from assuming all of the same principal duties she previously had. “However, the board cannot hire an additional principal to avoid, defeat or undermine the court order,” he wrote. Judge Smith wrote that the district should place Rouse in an office with the administrative staff and allow her to access the administrative staff as she did prior to her termination. He also ordered the board and the school district pay $12,000 in attorney fees.

Source:  Quad City Times, 9/29/12, By Brian Wellner

[Editor's Note:  UPDATE: Since first reporting this, the Quad City Times reported that on October 1, 2012, the Durant School Board voted in closed session to fully restore Rouse to her position of principal of Durant High School. High school co-principal Tony Neumann has agreed to give up his position in order to jointly administer the district’s K-8 program with Rebecca Stineman, the board said.

In September 2012, Legal Clips summarized an article in the Los Angeles Times, which reported that New Mexico Education Department Secretary Hanna Skandera had suspended the entire school board of the Questa Independent School District in northern New Mexico, saying that state officials would take over the running of the board. Secretary Skandera cited the regular fisticuffs, chaotic meetings, and required police presence as some of the reasons for the takeover.

In September 2012, Legal Clips summarized an article in The Des Moines Register, which reported that the Iowa chapter of the ACLU had filed suit under the state public records law against a Des Moines school district seeking materials from a May 2012 school board meeting closed to the public, after which the school board voted to accept the now-former superintendent’s resignation.]

The case of affirmative action in enrollment practices is set to be heard by the U.S. Supreme Court

As reported in Education Week, the future of affirmative action in education – not just for colleges but potentially for K-12 schools as well – may be on the line when the U.S. Supreme Court takes up a race-conscious admissions plan from the University of Texas next month. Scores of education groups have lined up behind the university with friend-of-the-court briefs calling on the justices to uphold the plan and continue to recognize the need for racial diversity in the nation’s schools and classrooms.

“Long identified as essential to the missions of many post-secondary institutions and school districts in the United States, diversity has emerged as central to our nation’s overarching goals associated with educational excellence,” says a joint brief by the College Board, the National School Boards Association, and several other K-12 groups and others that deal with college admissions.

In an interview, Francisco M. Negrón Jr., the general counsel of the NSBA and a co-author of the brief, emphasized the stakes in the scope of the issues posed in Fisher v. University of Texas at Austin (Case No. 11-345), which is set for arguments Oct. 10. “This is predominantly a higher ed. case, but our interests in K-12 diversity are not dissimilar to the interests of higher education,” he said. The Fisher case is one of the biggest of the court’s new term, and for now is the only education case on the docket.

It involves Abigail Fisher, a white applicant who was denied admission to the University of Texas at Austin in 2008 under the university’s “holistic review” program. That program may take race into account for the quarter of places in UT-Austin’s entering freshman class not filled by the Texas law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Lawyers for Fisher say that but for the consideration of race, she would have been admitted. They say that the Texas program should be struck down under the 14th Amendment’s Equal Protection Clause because it fails the requirement for a narrowly tailored race-conscious program set forth in the Supreme Court’s 2003 decision in Grutter v. Bollinger. That 5-4 decision involved the University of Michigan law school, and the majority opinion by then-Justice Sandra Day O’Connor expressed a desire for all use of affirmative action in education to end within 25 years. Opponents of race considerations would be happy to speed up that end point.

The University of Texas and other state higher-education institutions were barred from considering race in admissions in 1996 by the U.S. Court of Appeals for the 5th District, in New Orleans, in a decision known as Hopwood v. Texas. That led state lawmakers to adopt the Top Ten Percent plan, which has aided the admission of Hispanics from the Rio Grande Valley, for example, and black students from urban systems in and around Dallas, Houston, and other cities.

But after the Supreme Court’s Grutter decision upheld the use of race in holistic admissions plans, UT-Austin restored a racial component to its program. Race was added as a factor to UT-Austin’s “personal achievement index,” a mix of leadership qualities, extracurricular activities, work and service experience, and special circumstances. That index, known as the PAI, and a separate academic index are used on a matrix to grant admission to applicants who don’t get in through the Top Ten Percent law.

No goals or racial quotas are established. But, while a federal judge described the university’s use of race as “a factor of a factor of a factor,” all sides acknowledge that in an individual case, race can be the determining factor. (The university insists that Fisher would not have been admitted even if she had received the highest PAI score.)

While Fisher has a relative handful of groups, mainly conservative-leaning, on her side, the university has attracted some 70 friend-of-the-court briefs. Its supporters include President Barack Obama’s administration, most higher education groups and many individual institutions, retired military leaders, Fortune 100 corporations, and K-12 groups.

“In higher education, we don’t sense any lessened need for the right to appropriately consider race and ethnicity in considering the makeup of our student bodies,” said Ada Meloy, the general counsel of the Washington-based American Council on Education, the main umbrella group for colleges and universities. “To change the rules now would be highly disruptive to higher education.”

Source:  Education Week, 9/28/12, By Mark Walsh

[Editor's Note:  On August 13, 2012, NSBA, along with the College Board and eleven other education organizations, filed an amici curiae brief in Fisher v. University of Texas (UT), now before the U.S. Supreme Court. The Court will review the decision by the U.S. Court of Appeals for the Fifth Circuit that upheld the constitutionality of UT’s admissions process permitting the consideration of race/ethnicity as part of a holistic evaluation of a candidate’s application.

NSBA’s brief argues that the Court should avoid any dilution of Grutter that would undermine the current diversity efforts currently used throughout the spectrum of our public education system from kindergarten through post-secondary programs.

The brief was written by a team from EducationCounsel LLC, Washington, D.C., led by Arthur Coleman, former Deputy Assistant Secretary, Office for Civil Rights, U.S. Department of Education, and the Office of General Counsel for the National School Boards Association.]

Pennsylvania middle school requires drug testing of students to participate in extracurricular activities

As reported in The New York Times, Glenn and Kathy Kiederer have filed suit against the Delaware Valley School District, claiming that mandatory drug testing to participate in any extracurricular activities was unnecessary and that it infringed on the rights of their daughters. The Kiederers’ older daughter, a 12-year-old seventh grader (who are now in high school), wanted to play sports and join the scrapbooking club at Delaware Valley Middle School. However, one day when she took home a permission slip, it said that to participate in the club or any school sport, she would have to consent to drug testing. Her parents question school drug testing.

“They were asking a 12-year-old to pee in a cup,” Kathy Kiederer said. “I have a problem with that. They’re violating her right to privacy over scrapbooking? Sports?” Now, children in grades as low as middle school are being told that providing a urine sample is required to play sports or participate in extracurricular activities like drama and choir. Such drug testing at the middle school level is confounding students and stirring objections from parents and proponents of civil liberties. A lawyer for the school district declined to comment, citing the pending litigation.

It is difficult to gauge how many middle schools conduct drug tests on students. States with middle schools that conduct drug testing include Florida, Alabama, Missouri, West Virginia, Arkansas, Ohio, New Jersey and Texas. Some coaches, teachers and school administrators said drug-testing programs served as a deterrent for middle school students encountering drugs of all kinds, including steroids, marijuana and alcohol.

Drug testing for high school athletes, which has been around for years, was deemed constitutional in a 1995 United States Supreme Court ruling (Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995)). Some districts have expanded their drug-testing programs in recent years to include middle school students.

In 2003, the U.S. Department of Education (ED) started a program that offered federal money for drug testing in grades 6 through 12, and the last of the grants will be closed out this fall. The program, following the outlines of the Supreme Court decision, allowed testing for students who participated in school activities, or whose parents chose to enroll them.

In the 2004-5 school year, an estimated 14 percent of public school districts conducted some form of random drug testing, according to an ED report. But middle school testing is not thoroughly tracked by officials.

The nature of drug-testing programs at the middle school level varies by school district. In general, an outside testing company conducts the tests under contract with school authorities. Students are generally given little, if any, advance notice and are pulled away from class and asked to urinate in a cup – unsupervised, to comply with privacy laws.

Specimens are sent to a laboratory, and parents and students are notified of any positive result. Some schools require a second test to confirm a positive result; in others, parents may request a challenge to a result, sometimes for a fee. Results are generally not shared with law enforcement. Punishment for a positive test can range from a warning to removal from a sports team or an activity. Some coaches and school administrators, however, say the dearth of positive tests is an indication that testing is working effectively as a deterrent.

Despite the Supreme Court ruling in 1995, some districts have been challenged in lower courts. The American Civil Liberties Union (ACLU) won a settlement last year relying on California’s stricter state privacy laws that prevented the schools from conducting random drug testing for students in nonathletic activities absent a reasonable ground for suspicion. The district, in Redding, Calif., discontinued its program as part of the settlement.

Not all parents oppose testing of middle school students. Daniel Alef, the father of an eighth-grade swimmer in Santa Barbara, Calif., said he would support testing at his son’s school. “Kids today grow up too quickly and have access to way more information,” he said. “But in the end, I think it goes back to the parents.”

In Pennsylvania, the Kiederers are waiting as their case, filed by the state chapter of the ACLU in the Court of Common Pleas of Pike County, works through the legal system. Last year, they won an injunction preventing the district from enforcing its policy and allowing their daughters to participate in extracurricular activities. “They’re losing their rights every day and you ask yourself, what are we teaching the kids?” Glenn Kiederer said.

Source:  The New York Times, 09/22/12, By Mary Pilon

[Editor's Note:  The issue of random, suspicionless drug testing has been a source of contention for many states. In March and May 2012, Legal Clips summarized articles on LancasterOnline.com, which reported that another Pennsylvania school district, the Solanco School District (SSD), had revised its student drug-testing policy as a result of a suit brought by the ACLU challenging the district’s the random testing program. However, it appears that the policy revision did not address the main allegation of the lawsuit, namely that SSD never proved the need to test students for illegal drugs in the first place.

Also in March 2012, Legal Clips summarized an article in the Express-Times, which reported that yet another Pennsylvania district, the Saucon Valley School Board, had tabled further discussion of implementing a random drug testing policy for students, while the board awaits the outcome of a suit against the Delaware Valley School District over its random drug testing policy.

In June 2011, Legal Clips summarized a decision by the Wyoming Supreme Court in Hageman v. Goshen County Sch. Dist., which held that a school district’s mandatory random drug and alcohol testing policy for students participating in extracurricular activities does not violate the Wyoming Constitution’s provision protecting individuals from unreasonable searches and seizures.]

Anti-concussion legislation heads to Michigan governor’s desk

According to the Associated Press (AP) in The Macomb Daily, measures heading to Governor Rick Snyder’s desk would require the Michigan Department of Community Health to develop educational materials and training for athletes, parents, and coaches on concussion-related injuries and treatments. The legislation also would require coaches to immediately remove athletes suspected of having concussions from play and let them return only after getting a health professional’s written approval. The director of a youth sports organization in the Flint area says measures aimed at reducing concussions among student athletes are necessary but pose cost concerns for his and other financially struggling nonprofit groups.

David Munerlyn – who is known as “Coach Mun” to many in the community – said he supports anti-concussion measures such as the one topping the agenda at the next board meeting of the Greater Flint Affiliation Youth Development Inc. But he said he cannot help but think about the cost of medical care for young athletes who have little or no insurance. “The money’s on my mind,” Munerlyn said. “That is a concern in our group. We’re dealing with a lot of inner-city children. … I think organizations might have to come up with some ways of helping those parents.”

The Michigan House and Senate passed the measures with little opposition, and medical and health organizations who testified before legislative committees were nearly unanimous in their support of the bills. Still, House Fiscal Agency analysts say it could have cost implications for community recreation programs and school districts, and they question vague language in part of the legislation related to exemptions for groups with “substantially similar” concussion procedures. Snyder spokeswoman Sara Wurfel said the governor has not received the legislation, but intends to sign it after reviewing it.

The House Fiscal Agency says more than half of the states have enacted legislation dealing with student athlete concussions, and about a dozen more have measures pending. The measures stem from concerns that parents, coaches and students need to know more about signs and symptoms of a concussion.

The Michigan High School Athletic Association has already adopted concussion procedures for middle school and high school athletes, but the measures expand to kindergarten-through-12th grade gym classes and local parks and recreation department programs. According to the National Federation of State High School Associations, roughly 140,000 high school students a year suffer concussions. Advocates fear damage to developing brains from multiple concussions.

Munerlyn said he joins the chorus of support “regardless of the costs down the line.” But he said there will need to be discussions to ensure costs are covered, particularly those involving the health exam required for athletes. Lester Liston, who is associate director of the Flint youth sports organization and also president of the Flint Inner City Youth Football League, said every child that plays in the football program is covered by liability insurance for injuries including concussions. The students pay a small fee as part of their registration to be covered. “In the inner city, you can’t take that chance on kids getting injured — they don’t have coverage,” Liston said. “You can’t take that chance.”

He said he supports the legislation, but added that state officials could go even further in ensuring student athletes’ health and safety and look at the physical examinations required for student athletes to play in the first place. Citing examples of students collapsing and dying on athletic fields, Liston said the basic physicals are not thorough enough to determine a student’s overall health and fitness.

Source:  The Macomb Daily, 10/03/12, By Jeff Karoub (AP)

[Editor's Note:  In September 2012, Legal Clips summarized an article from the Courthouse News Service, which reported that Blake Allen Ripple had sued Marble Falls Independent School District and Cord Woerner, his former head football coach and athletic director at Marble Falls High School, claiming the coach’s lack of concern about a concussion Ripple suffered had left him permanently disabled. In the complaint, Ripple claimed that his “trainer briefly talked to the Plaintiff on the sidelines after the injury, but he failed to render plaintiff aide and did not continue to observe plaintiff.”

In June 2012, Legal Clips summarized an article in the Chicago Tribune, which reported that Pop Warner Little Scholars Inc., the nation’s largest youth football organization, had banned some common drills and told coaches to spend two-thirds of their practice time on non-contact activities as part of a wider crusade to reduce the risk of head injuries that can reverberate for a lifetime. The organization hopes the changes lessen concussions and reassure parents and players that the game is safe.]

North Carolina district settles funding lawsuit with local charter school

As reported on StarNewsOnline.com, the Pender County Board of Education has settled a lawsuit brought by Charter Day School (CDS), a local charter school, for $27,900. CDS first filed the suit against school boards in five counties, including Pender, in June 2011. The suit alleged that the school boards have continuously failed to transfer the correct amount of money to the charter school as required by law.

Local school districts must send part of their funding to charter schools each year, according to state law. A charter school receives per pupil allocation, or the average amount a district spends to educate one student, for each of its students who would normally attend a local school district.

According to the law, each district’s per pupil allocation should come from local, state and federal funding and from the district’s fund balance, which is similar to a savings account for the schools. That total dollar amount is then divided by the number of students enrolled in the district.

In 2008, the school enrolled 717 students and got about $8,000 for each, according to data compiled by the state department of education. In 2009 and 2010, enrollment jumped to 808 students, but funding fell to about $7,300 for each, according to state data. State records show that during the 2011-12 school year, only 34 of Pender County’s more than 8,000 students attended a charter school.

Source: StarNewsOnline.com, 10/1/12, By Pressley Baird

[Editor's Note: In August 2010, Legal Clips summarized a decision by the Missouri Supreme Court in School Dist. of Kansas City v. State of Missouri, which held that the state charter school statute, which allows charter schools to declare themselves local education agencies (LEA) and thereby receive funding directly from the state, did not violate the state constitutional provision that prohibits the diversion of local property tax revenue to any entity other that the Kansas City School District (KCSD). The state supreme court also ruled that the statute’s LEA provision did not violate the state constitution’s Hancock Amendment, which prohibits unfunded state mandates.]

New Jersey Governor signs new law requiring all schools to have defibrillators

According to the Clifton Journal reported on northjersey.com, Governor Chris Christie has signed into law A-1608, “Janet’s Law”, which requires all public and nonpublic schools to have automated external defibrillators (AED) on site, as a measure to safeguard the lives of New Jersey’s K-12 students. The new law calls for schools to establish emergency action plans to respond to sudden cardiac events, in order to be as prepared as possible to deal with life-threatening emergencies. The law is named in memory of Janet Zilinski, an 11-year-old resident from Warren who died of sudden cardiac arrest following cheerleading squad practice.

“By signing Janet’s Law, we hope to prevent other families from having to live through the shock and sorrow of unexpectedly losing a beloved child to an emergency cardiac situation,” said Christie. Governor Christie continued, “This law ensures that our schools will be prepared by having the appropriate equipment and that designated staff is properly trained to handle these sudden events before, during and after school. I am proud to sign this law in memory of Janet and I thank her parents, Karen and Jim Zilinski, for their commitment and action taken in their daughter’s name to help prevent other families from facing the same tragedy.”

As a result of Janet’s Law, all public and non-public schools, K-12, will have an automated external defibrillator on school property that is properly identified in an unlocked location beginning Sept. 1, 2014. The defibrillator must be accessible during the school day as well as during school-sponsored athletic events or team practices and within reasonable proximity to the school athletic field or gymnasium.

A school’s emergency action plan must contain a list of at least five school employees, team coaches or athletic trainers who have certifications in cardio-pulmonary resuscitation and the use of a defibrillator from either the American Red Cross, American Heart Association, or other training program recognized by the New Jersey Department of Health.

Further, the detailed response procedure must identify the appropriate school official responsible for responding to the person experiencing the sudden cardiac event, calling 911, starting cardio-pulmonary resuscitation, retrieving and using the defibrillator, and assisting emergency responders in getting to the individual experiencing the sudden cardiac event. The State Board of Education, in consultation with the Commissioner of Health, will adopt rules and regulations as necessary to implement the provisions of the legislation.

Source:  northjersey.com, 09/28/12, By Staff

[Editor's Note:  In a recent edition of School Board Notes, the  New Jersey School Boards Association noted that:

"The Office of Legislative Services said in a fiscal estimate that it could not determine the cost to school districts because it was unclear how many schools would be required to purchase a defibrillator, and it was unclear about the cost of training school staff. However, the Office of Legislative Services noted that under the state contract, which was set to expire in July, a school district could purchase a defibrillator for $829 per unit, and training for $58 per person. The office also noted that the American Red Cross offers such training courses at approximately $70 per person, and their certification is valid for two years."

Similar legislation has been proposed in other states over the past few years. Oregon has passed similar laws regarding the requirement to have defibrillators on school campuses. Those laws were amended in 2010 and 2011.  Earlier this summer, the Oregon School Boards Association posted helpful guidelines on its website to assist schools in interpreting those legal changes for Oregon school districts.]

University-run school sued for failure to protect Indiana elementary student from peer sex abuse

As reported by the Associated Press (AP) in the Huffington Post, the parents of a central Indiana boy are suing Ball State University, alleging their son was subjected to “horrific sexual abuse” by fellow second-graders at a university-run school who they say acted out scenes from pornographic videos they downloaded on school computers. The lawsuit says the boy was 8 years old when he was forced to engage numerous times in sex acts with other children at Burris Laboratory School in Muncie in late 2011. Four second-grade boys, including the alleged victim and another student described as the “ringleader,” are believed to have been involved in the sex abuse, the complaint alleges.

Ball State spokesman Tony Proudfoot said in a written statement that the university learned in December 2011 of allegations of inappropriate behavior among four second-graders at the school. He said the matter was “reported promptly” to local law enforcement and the Indiana Department of Child Services.

Proudfoot would not elaborate on the alleged inappropriate behavior, but he said the claims in the lawsuit “bear no resemblance to the evidence or results of the investigations of the university or those of the agencies to which it was reported.” Proudfoot’s statement noted that “no adults were alleged to be perpetrators of abuse of any child in this matter” and said that the university will “vigorously defend these unwarranted allegations.”

Chief Deputy Prosecutor Judi Calhoun confirmed Tuesday that the sheriff’s department and prosecutor’s office investigated the allegations. She said she could not comment on any findings because the matter involved juveniles and such cases are not open to the public. “All I can say in regard to the matter is that it was investigated,” Calhoun said.

Jason Delk, an attorney for the boy’s parents, also said he could not comment on what prosecutors or police found. But he said the boy suffered psychological and emotional trauma. “He’s absolutely a victim. I don’t know that he’s the main victim, but he’s certainly a victim of the sexual abuse that was going on at Burris,” Delk said Tuesday.

The lawsuit alleges the students had “unfettered access” to the Internet at school and viewed pornographic videos on school computers and iPads. After viewing those video, the lawsuit states, “the students would then ‘act out’ the scenes” on each other. All of the boys were students in the same second-grade class and were allowed by their teacher to go on long, unsupervised restroom breaks, the lawsuit states. Most of the alleged sex acts took place in bathrooms, but some occurred in the school’s library and in classrooms, the suit contends.

The suit, filed Friday, seeks compensatory and punitive damages. It alleges the boys engaged in at least 11 separate instances of sexual abuse and molestation over three months in late 2011. Delk said all of the boys were around 8 years old. He said the suit was filed “as a measure of last resort” after discussions with Ball State officials failed to result in “an understanding.” He declined to elaborate.

Source:  The Huffington Post, 10/02/12, By Rick Callahan (AP)

[Editor's Note: In May 2012, Legal Clips summarized an article from the Miami Herald in Education Week, which reported Governor Rick Scott had signed into law a bill that requires anyone to report known or suspected cases of child sex abuse. The “Protection of Vulnerable Persons” law, which took effect on October 1, 2012, also gives Florida the toughest mandatory reporting requirements in the nation for sex abuse violations on schools and university campuses, say victims advocates.

In January 2011, Legal Clips summarized a decision by a federal district court in Washington in J.B. v. Mead Sch. Dist. No. 354, in which had ruled that a student alleging peer sexual harassment has failed to state a valid Title IX claim or a § 1983 claim based on deprivation of his substantive due process rights. The court concluded that the student had failed to allege sufficient facts to show that school officials had actual knowledge of the sexual abuse that occurred.]

New Jersey district enters resolution agreement with OCR in disability discrimination case

As reported in a press release on ed.gov, the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) has 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 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), 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 and Title II.

“Whenever possible, students with disabilities should be educated in regular educational programs in our nation’s public schools,” said Russlynn Ali, Assistant Secretary for Civil Rights. “I applaud the steps the East Orange School District has agreed to take to address immediate concerns and to put systems in place to help ensure its compliance with Section 504 and Title II. We look forward to continuing to work cooperatively with the district to better ensure a fair, equal and supportive environment for all students.”

OCR initiated a compliance review in 2011 to assess whether the district discriminated against qualified students with disabilities by inappropriately placing them in self-contained classes instead of regular education classes. Section 504 and Title II require school districts to place disabled students in the regular educational environment unless the district demonstrates that the education of the disabled student in the regular environment cannot be achieved satisfactorily even with the use of supplementary aids and services.

In its Letter of Findings, OCR’s investigation revealed that a high number of students with disabilities were placed in the district’s self-contained classrooms. Specifically, during school year 2009-2010, 63 percent of the district’s 1,395 disabled students were in self-contained placements. During school year 2010-2011, 64 percent of the district’s 1,462 disabled students were placed in self-contained placements, and 52 percent of its 535 students with learning disabilities were placed in self-contained settings. OCR’s review of special education files revealed that, in many instances, the district did not demonstrate that these students could not be satisfactorily educated in the regular educational environment with the use of supplementary aids and services.

Source:  ed.gov, 10/1/12, By Staff

[Editor's Note: In February 2012, Legal Clips summarized guidance documents issued by ED's Office for Civil Rights, specifically a Dear Colleague letter and a Frequently Asked Questions document, on the requirements of Title II and Section 504 in elementary and secondary schools, given the changes to those laws made by the 2008 ADA Amendments Act. The Amendments "broadened the meaning of disability and, in most cases, shifts the inquiry away from the question of whether a student has a disability as defined by the ADA and Section 504, and toward school districts' actions and obligations to ensure equal education opportunities."]

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