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COSA to present webinar with OCR Chief regarding new federal guidance on racial discrimination in student discipline

Racial Discrimination in Student Discipline:  A Close Look at the New DOJ/ED Guidance

Presented on: March 19, 2014, 1:00 p.m. – 2:15 p.m.

In January the United States Departments of Education and Justice issued a lengthy Dear Colleague Letter (DCL) on the subject of discriminatory practices in the administration of student discipline.  The DCL, summarized in NSBA’s Legal Clips, provides notice of the Departments’ interpretation of how student discipline policies and practices, both written and unwritten, can violate Title IV and Title VI of the Civil rights Act of 1964.  The DCL states the Departments’ concern with this issue in unequivocal terms: “In short, racial discrimination in school discipline is a real problem.”

The Departments’ focus on this subject creates a need for school districts to review their disciplinary policies and practices.  School attorneys can be of immeasurable help in a school district’s review, as ensuring the district’s compliance with Titles IV and VI will require a clear understanding of the DCL and the Departments’ interpretation of the interplay between those federal laws and student discipline.  To assist in this effort, Ms. Anurima Bhargava, Chief, Educational Opportunities Section, Civil Rights Division, U.S. Department of Justice will join NSBA General Counsel Francisco Negrón to explain the Departments’ Dear Colleague Letter. 

Whether you are an in-house counsel or represent school districts as clients, you will not want to miss this opportunity to learn firsthand how the Departments apply titles IV and VI to student discipline.  This DCL is new; and school districts will soon be asking for assistance in its interpretation and effect on their policies.

Use this link to register for this timely webinar now, and consider inviting your school district clients to join you.

Host: Francisco Negrón, General Counsel, National School Boards Association

Presenter: Anurima Bhargava, Chief, Educational Opportunities Section, Civil Rights Division, U.S. Department of Justice

Registration Fees:

$225 non members

$165 COSA members

$0 state association counsel

Indiana districts cutting part time employees’ hours to avoid offering them healthcare under ACA

The Herald Bulletin reports that a number of school districts in Indiana are reducing the hours of their part time employees as a means of complying with the federal Patient Protection and Affordable Health Care Act (ACA).  The 2010 law mandates that public and private employers with at least 50 workers provide health insurance to their full-time employees.  Under the law, however, a full-time employee is defined as anyone working an average of 30 hours a week.  That’s a significant change, and one that could be costly because of steep penalties associated with the new health care law.

Dennis L. Costerison, executive director of the Indiana Association of School Business Officials, said many school districts have made the tough decision to cut the hours of part-time employees rather than face the prospect of sharply higher health insurance costs or fines.  He noted, “Unfortunately, schools have had to be innovative to deal with this because they don’t have the extra dollars to meet those needs.”

“I know that there has been a huge impact on part-time employees we hire,” said Chris Boots, president of South Madison Community Schools Board of Trustees.  “We’ve had to cut their hours.”  Ken McCarty, business manager for South Madison, said about 130 employees were affected by the so-called employer mandate.  He conducted a study, which found that providing health insurance to those employees would cost about $1.2 million and no way to pay for it.  “The new law did not come with any additional funding,” McCarty said.  “Obviously, $1.2 million in a budget our size (about $28 million in fiscal 2014), is a lot.”

Fort Wayne schools employ more than 600 part-time workers, and estimated the cost of providing health insurance benefits to them could be upwards of $10 million.

In fall 2013, Indiana Attorney General Greg Zoeller filed a lawsuit against the Internal Revenue Service over the employer mandate.  Joined by 39 Indiana school districts, the lawsuit contends the IRS rules are being wrongly applied to school corporations.

U.S. Rep. Susan Brooks (R-IN) said she was encouraged that the House Ways and Means Committee has advanced a bill that would “restore the traditional work week” from 30 hours to 40 hours.

Source: The Herald Bulletin, 2/6/13, By Stuart Hirsch

[Editor’s Note: In October 2013, Legal Clips summarized an article in The Journal Gazette reporting on the Indiana Attorney General’s suit against the Internal Revenue Service.] 

OCR investigating NY district for alleged racial discrimination in assigning students to teachers

The U.S. Department of Education (ED) Office for Civil Rights (OCR) has began an investigation of a parent complaint that the East Williston School District engages in racial discrimination in student classroom assignments, says The Island Now.   Valerie Brondyke, the parent who filed complaint, said one of the elementary school’s second grade classes “seemed to contain a disproportionately high number of certain racial minorities, including Asians, Indians, Middle Easterners and Hispanics.”  At least 10 of the 19 students in the class are minority students, according to Brondyke.  Brondyke said those teachers at the school “who seem to be informally known among parents as ‘best teachers’ in the grade appear to have the smaller number of minorities assigned to the class.”

Brondyke also complained about the teacher’s performance in her daughter’s class.

Brondyke, an attorney, said OCR has opted to launch a full investigation into the allegations, bypassing an option to follow an early complaint resolution procedure.  According to information on the education department’s website, the early complaint resolution procedure offers the two sides an opportunity to resolve problems more quickly.  A full investigation may include reviewing documentary evidence submitted by both parties, interviews, and site visits, according to the education department’s website.  The Office of Civil Rights may also seek to resolve the complaint during an investigation if it deems that to be appropriate, according to the website.

“She filed a complaint with the department of education.  By law, they’re obliged to conduct an investigation on it,” said Mark Kamberg, president of the East Williston Board of Education.  “We are certainly cooperating as we would in the case of any investigation.”

In a statement last month, East Williston Superintendent of Schools Elaine Kanas said the district has initiated an investigation of the alleged discriminatory practices as called for under board of education policy.  “The basis of the discrimination is that this is an ineffective teacher,” Kanas said.  “If there was a pattern, inadvertent, then the board would take steps in the future.”

Kanas also said in the statement that parents who had concerns about their children’s education program were encouraged to consult with the teacher and the building administrator.  “In the event that these concerns remain unresolved at the building level, the parents are encouraged to address them to me as the superintendent,” Kanas said.

Source: The Island Now, 2/6/14, By Richard Tedesco

[Editor’s Note: In January 2013, Legal Clips summarized an article in the Pioneer Press reporting that the St. Paul school district settled a federal race discrimination suit brought by the families of three former middle school students.  The suit alleged that a sixth-grade teacher at Heights Community School disparaged them on the basis of their race and made them sit facing the wall in the back of the classroom.] 

Connecticut reports autistic students most subjected to seclusion and restraint

According to the New Haven Register, children with autism were the most frequently subjected to restraint or seclusion in Connecticut schools in the 2012-13 school year.  The conclusion is based on a report by the Connecticut Department of Education (CDE) that tallied more than 33,000 incidents of physical restraint or seclusion in public schools and private special education programs.  The report from CDE shows that autism was the primary disability among special education students subject to “emergency” restraint or seclusion, with 40.4 percent of all such incidents involving a child with autism.  Autism also accounted for nearly half of all cases in which children were put in seclusion as part of their individualized education plans.

“This is just so disheartening,” said Shannon Knall of Simsbury, policy chair of the Connecticut chapter of Autism Speaks, an advocacy group.  She blamed the high incidence of children being restrained and secluded on “a tremendous lack of training” of teachers and school staff in alternative interventions.  “The numbers of children with autism are skyrocketing, and I think our school districts are just overwhelmed,” she said.  “The people on the front lines need training and tools” in alternative behavior management.  “If you only give someone a hammer and a nail, that’s all they’re going to use.”

CDE has no specific strategy to reduce those practices.  The report says that the “continued examination” of the data will inform “technical assistance and trainings” that promote the use of positive interventions and reduce reliance on restraint and seclusion.

A coalition of eight state agencies has begun a public education campaign to reduce the unnecessary use of restraints and seclusion in schools.

Connecticut state law allows for the use of restraints and seclusion in emergencies that pose imminent danger to a student or others.  It also allows for special education students to be put in seclusion if their IEPs provide for such measures — a provision that some child advocates say is overly broad.

Sarah Eagan, the state’s child advocate, said the new report illustrates that the use of physical restraint and seclusion is still common in schools, especially among young children with developmental disabilities.  About half of all the 2012-13 incidents involved special education students in grades five and below, with about 180 incidents involving children in kindergarten and pre-K.  “What this highlights is that ultimately, the practices are widespread,” Eagan said.  “What we have to remember is that the use of restraints and seclusion (for behavior management) has no research to support it. We’re really going to have to support schools and teachers with resources and tools so they can find a better way” to de-escalate problem behaviors.

Eagan noted that the U.S. Department of Education issued a “resource document” to schools in 2012 that discourages the use of physical restraints or seclusion except in extreme situations where a child’s behavior poses imminent danger of serious harm to self or others.  But there is no federal law restricting the practices.  In the CDE report, schools reported that the majority of restraints and seclusions — 71 percent — were in response to emergency risk of harm, with the remaining seclusions done in accordance with an IEP.  In many cases, individual children were restrained and secluded multiple times throughout the year. Forty students were physically restrained or secluded more than 100 times — and 11 of them were subject to those practices 300 to 900 times during the year, the report shows.

The report indicates that African-American and Hispanic students are more likely to be restrained and secluded than white students.  Fifty-seven percent of students who were restrained or secluded were members of minority groups, while the majority of special education students statewide are white.

Source: New Haven Register, 2/10/14, By Lisa Chedekel

[Editor’s Note: The CDE report Annual Report on the Use of Physical Restraint and Seclusion in Connecticut for the 2012-13 states

In total, 33,743 incidents of restraint and seclusion were reported to the CSDE in 2012-13.  This represents a nine percent decrease from the previous year (2011-12).  A total of 2,455 students (unduplicated count) accounted for these 33,743 incidents. 

In March 2012,  Legal Clips summarized an article in Education Week reporting that the U.S. Department of Education (ED) has collected data showing that, nationwide, school employees use isolation (seclusion) and restraint techniques disproportionately on disabled students, especially African-American disabled students.  ED surveyed more than 72,000 public schools, asking how many students were isolated or restrained for the purpose of keeping them from harming themselves, classmates, or school employees.  Although seclusion and restraint are primarily associated with special education, the data show those technique are used on all students.] 

Substitute teacher claims Pennsylvania district fired him for reporting suspected child abuse

Christopher Harmon, who was a substitute teacher at Meadville Area Senior High School (MASHS), has filed suit against the Crawford Central School District (CCSD) claiming he was fired for reporting suspected child sexual abuse, says The Meadville Tribune.  Harmon’s suit alleges that he was fired in retaliation for exercising his First Amendment free speech rights.

Harmon’s suit states that he overheard a student’s conversation in which she revealed that her minor sister was engaging in sexual intercourse with her mother’s boyfriend, a man believed to be in his 40s.  According to the suit, MASHS’ Principal John Higgins “met with Harmon and attempted to intimidate and dissuade Harmon from making any additional reports of suspected child abuse outside the ‘chain of command.’  In other words, Harmon was only supposed to report suspected child abuse to him and no one else.”

Despite Higgins’ warning, Harmon reported the incident to CCSD Superintendent Heller, ChildLine, the police, and the Pennsylvania Department of Public Welfare. Harmon subsequently received a letter of termination based on behavior he exhibited as a substitute teacher at MASHS.

The suit charges that Heller and Higgins deprived Harmon “of his constitutional right to speak freely on matters of public concern under the First and Fourteenth Amendments to the United States Constitution.”

According to Richard Perhacs, CCSD’s attorney, Harmon was removed from the district’s substitute list after walking out of the building during the school year following a conversation with Higgins about the proper way to make a report of the incident.  “Child protective services law is very clear,” Perhacs said.  “When an employee receives this information while at work, he’s supposed to report it to his building supervisor.  He went outside the chain of command, which is what this is all about.”

“The idea that Crawford Central School District would terminate an employee for complaining about a report of child abuse is ridiculous,” Perhacs said.

Source: The Meadville Tribune, 2/10/14, By Mary Spicer

[Editor’s Note: In September 2012, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) in Gschwind v. Heidenholding that a former teacher stated a valid cause of action of retaliation for exercising his free speech rights with his complaint that he was fired for filing a criminal complaint against a student who threatened to assault him. The panel also concluded that the individual defendants, i.e., the assistant principal and the principal, were not entitled to qualified immunity, and that the school district could be held liable for the school administrators’ employment decisions because of the school board’s practice of “rubber stamping” the personnel decisions made by school administrators.] 

DOJ and Louisiana close to settlement of suit over federal monitoring of state’s private school voucher program

According to The Times-Picayune, the U.S. Department of Justice (DOJ) and the State of Louisiana are negotiating a settlement agreement to end a suit brought by DOJ charging that the state’s private school program is exacerbating racial segregation the state’s public schools.  The Louisiana Scholarship Program provides public funding for low-income students to attend private schools if they are at C, D or F-graded schools or entering kindergarten.  About 6,750 students are currently enrolled.  Gov. Bobby Jindal has touted vouchers as a civil rights initiative to improve the prospects of black children attending low-performing schools.  But the Justice Department filed suit last summer saying the program made racial segregation worse in the public schools those children left.  Federal Judge Ivan Lemelle ruled in November that the federal government had the right to monitor the program.

The state’s latest filing indicates that the parties have reached agreement on all issues, save two.  First, the state objects to telling the federal government what public school the student would have attended instead.  Second, the state wants more flexibility on data reporting timelines than DOJ is willing to grant.

The state has agreed to provide, among other data, reports certifying that voucher schools do not discriminate; the enrollment breakdown, by race, of all voucher schools; the names, addresses, districts, current public or voucher school and race of all children who apply for vouchers; and either the voucher school they were matched with or the reason they were deemed ineligible.

The federal court initially absolved the state of responsibility for complying with the first issue, but then asked if the information could be obtained by parents through the voucher application form. The state responded that it doesn’t have that information and its lawyers said it is too late to ask parents to provide it.

The second question is when all the information would be due. The state’s timeline is non-specific. DOJ’s lawyers demanded responses either in March and May 2014 or as the information arrives. That’s not possible, the state’s lawyers said, “and it is unreasonable to demand that the State disrupt the processing of scholarship applications to provide data to the United States on a piecemeal basis.”

Source: The Times-Picayune, 2/7/14, By Danielle Dreilinger

[Editor’s Note: In November 2013, Legal Clips summarized an article in The Times-Picayune reporting that the U.S. Department of Justice has not abandoned its desegregation suit challenging the state’s voucher program.]

Maine Supreme Judicial Court rules in favor of transgender student on bathroom issue

Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)

Abstract: The Maine Supreme Judicial Court, in a 6-1 split, has ruled that a school district violated a transgender student’s rights under the Maine Human Rights Act (MHRA) when it prohibited her from using the girls’ communal restroom at school.

Facts/Issues: “Susan” is a transgender student who attended Asa Adams Elementary School in the Regional School Unit 26 district (RSU). Susan is a biological male who began identifying as a female in the third grade.  By fourth grade, Susan was dressing and appearing exclusively as a girl.  In the third and fourth grades, the students use single stall bathrooms, segregated by sex, and Susan was allowed to use the girls’ single stall bathroom.  At the time Susan was completing 4th grade, she received a diagnosis of gender dysphoria.  Gender dysphoria is the medical term for psychological distress resulting from having a gender identity different from the sex that one was assigned at birth.  The school accepted this diagnosis.

During Susan’s fourth-grade year, the school implemented a Section 504 plan to address Susan’s gender identity issues and her upcoming transition to the fifth grade, where students use communal bathrooms separated by sex.  The school counselor expressed to the Section 504 team that, for a transgender girl like Susan, using the communal girls’ bathroom was the best practice. The team agreed that requiring Susan to use the boys’ bathroom was not an acceptable option and the principal later testified that it would not have been safe for Susan to do so.  The minutes of the 504 meeting reflected the team’s conclusion that it was important to Susan’s psychological health that she live socially as a female and the recommendation that Susan use the girls’ communal bathroom in the fifth grade.

Susan’s fifth grade year started as planned, with no issues arising from Suan’s use of the girls’ communal bathroom.  A male student, however, following his grandfather’s direction, asserted his right to use the girls’ restroom and followed Susan into girls’ bathroom on 2 occasions.  The situation at the school become public, with significant media coverage. School officials then terminated Susan’s use of the girls’ communal bathroom and required her to use the staff restroom.

When Susan moved to middle school, RSU continued to impose the ban on Susan’s use of the girls’ restroom while still allowing her to use the staff bathroom.  After the school year ended, Susan’s parents moved to another school district.

In late 2008, Susan’s parents filed a complaint with the Maine Human Rights Commission (MHRC) alleging that RSU violated the Maine Human Rights Act (MHRA) in not allowing Susan to use the girls’ communal bathroom.   The MHRC ruled unanimously in Susan’s favor, and instituted a suit against RSU in Superior Court asserting claims for unlawful discrimination in education and in a place of public accommodation on the basis of sexual orientation. The Superior Court granted RSU’s motion for summary judgment, and the MHRC and Susan’s parents appealed.

Ruling/Rationale: The six justice majority vacated the Superior Court’s decision.  The majority’s ruling rested on an analysis of two state laws, the MHRA and a state statute in the Sanitary Facilities subchapter of the code that regulates restroom facilities in schools.

The public accommodations provision of the MHRA provides:

It is unlawful public accommodations discrimination, in violation of this Act . . . [f]or any public accommodation or any person who is the . . . superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of . . . sexual orientation . . . any of the accommodations . . . [or] facilities . . . of public accommodation . . . .

The MHRA defines places of public accommodation to include public schools. The definition of discriminate under the MHRA “includes, without limitation, [to] segregate or separate” and the definition of sexual orientation includes “a person’s actual or perceived gender identity or expression.”

The court noted that the school initially “determin[ed] that Susan is a girl, and in keeping with the information provided to the school by Susan’s family, her therapists, and experts in the field of transgender children, the school determined that Susan should use the girls’ bathroom.”  The school district’s change of position, however, violated the MHRA.  “RSU 26’s later decision to ban Susan from the girls’ bathroom, based not on a determination that there had been some change in Susan’s status but on others’ complaints about the school’s well-considered decision, constituted discrimination based on Susan’s sexual orientation.  She was treated differently from other students solely because of her status as a transgender girl.  This type of discrimination is forbidden by the MHRA.”

The court rejected RSU’s argument that the statute concerning sanitary facilities in schools superseded the MHRA.  Section 6501 of the sanitary facilities law states: “A school administrative unit shall provide clean toilets in all school buildings, which shall be…separated according to sex and accessible only by separate entrances and exits.”  The court determined that the two statutes could be reconciled.  Noting that the sanitary facilities provision does not address “the manner in which transgender students should be permitted to use sex-separated facilities,” the court concluded that “each school is left with the responsibility of creating its own policies concerning how these public accommodations are to be used. …Although school buildings must, pursuant to section 6501, contain separate bathrooms for each sex, section 6501 does not and school officials cannot dictate the use of the bathrooms in a way that discriminates against students in violation of the MHRA.”

The majority included a qualification in its holding that may be important in applying the decision to future cases:

In vacating this judgment, we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues.  The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school.  The school, her parents, her counselors, and her friends all accepted that Susan is a girl.  Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case.  Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice.  Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly.  Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.

The dissent and concurrence shared an interesting interpretation of the majority’s decision–under the court’s ruling men can use women’s restrooms and vice-versa.  The concurrence explained how that outcome results from the majority’s reasoning:

Specifically, the Court has concluded, as it must based on the statutes, that discrimination in the public accommodation of communal bathrooms is prohibited based on sexual orientation. The statute requiring that result also prohibits discrimination based simply on “sex.”  Thus, the next logical step given the Court’s inevitable interpretation of the existing statute is, as the dissent points out, the assertion that access to the public accommodation of designated communal bathrooms cannot be denied based on a person’s sex…. Put simply, it could now be argued that it would be illegal discrimination for a restaurant, for example, to prohibit a man from using the women’s communal bathroom, and vice versa.

The dissent said “the plain language of the MHRA and the unavoidable implications of the Court’s decision set a well-established societal custom (segregation of public bathrooms by sex) and the MHRA on a collision course.”

Both the dissent and concurrence supported a determination that RSU violated the MHRA, but called on the Maine legislature to amend the Act to prevent the result they thought was an inevitable extension of the majority’s ruling.

Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)

[Editor’s Note: In June 2013, Legal Clips summarized an ABC News story on the oral arguments presented to the Maine Supreme Judicial Court in this appeal.

In June 2013, Legal Clips reported on an article in The New York Times regarding a similar ruling by the Colorado Division of Civil Rights, finding that a school district violated that state’s civil rights act when it refused to let a transgender elementary student use the girl’s bathroom.]

GAO report calls on schools to improve prevention and reporting of child sexual abuse

A Government Accountability Office (GAO) report says schools need to be more vigilant in preventing and reporting child sexual abuse, according to U.S. News & World Report.  The GAO report also calls on federal agencies to better disseminate information to help schools prevent and report sexual abuse, and to better track and analyze incidents of sexual abuse committed by school personnel.

The GAO report found that even though 46 states have laws requiring school officials to report child sexual abuse and 43 have penalties for not reporting incidents, many states and school districts vary in how they promote awareness and prevention training for school personnel, as well as in how they report suspected abuse.  Those discrepancies in policy and reporting measures have led to many schools being unaware of their responsibilities in preventing abuse, the report says.

Title IX, an education law that prohibits sex discrimination in any education program receiving federal funds, also has provisions prohibiting sexual harassment.  That means sexual abuse of students and sexual misconduct by school personnel are prohibited under Title IX, the report says.  The report found only that 18 states require school districts to provide awareness and prevention training on sexual abuse and misconduct, and that fewer than half of the 18 required that Title IX coordinators (school employees who oversee compliance procedures) take that training.  In only five states did the awareness and prevention training cover the applicability of Title IX to sexual abuse against students.

The report also cites a 2004 report from the U.S. Department of Education (ED), which found that nearly 1 in 10 students are sexually abused by school personnel – such as teachers, principals, coaches and bus drivers – at some point during their academic careers.  “However, the prevalence of sexual abuse by school personnel remains unknown, in part, because some cases go unreported,” the report says.  “Further, the term sexual abuse may not capture the full spectrum of the issue.”  Some inappropriate behaviors that may not be captured under the term sexual abuse in state laws include using sexual language and gestures, sexual advances, sharing sexual photos and videos, and “grooming behaviors” like giving extra attention to one student or giving gifts to a student.

In response to the report, Deborah Delisle, ED’s assistant secretary for elementary and secondary education, said the department is revising its Adult Sexual Misconduct training module to target a wider audience that will include school volunteers.  She also said that “to the extent possible,” the department will look into ways to better track the prevalence of child sexual abuse by school personnel.

Source: U.S. News & World Report, 1/3014, By Allie Bidwell

[Editor’s Note: The GAO report titled “Federal Agencies Can Better Support State Efforts to Prevent and Respond to Sexual Abuse by School Personnel” recommends:

Education collaborate with HHS and Justice to compile and disseminate information to states; identify a way to track the
prevalence of sexual abuse; and that Education also clarify and disseminate information on how Title IX applies to personnel-to-student sexual abuse in the K-12 setting. Education and HHS
provided technical comments and Education concurred with our recommendations.  Justice had no comments.

In January 2014, Legal Clips summarized a CNN article reporting that a former student obtained a confession from her middle school teacher that the teacher, Andrea Michelle Cardosa, had sexually abused her, videotaped the confession on her cell phone, and posted it on YouTube.  Shortly after the former student posted the video on YouTube, she sent the link Cardosa, who resigned within hours.  A second student has come forward alleging that Cardosa sexually abused her, and police have arrested and charged Cardosa with 16 felony counts.  At the time of her resignation, Cardosa was serving as a high school administrator.

On February 24, 2014, NSBA’s Council of School Attorneys (COSA) will be conducting a webinar on “School District Investigations of Child Abuse.”  The webinar will be hosted by Leza Conliffe, NSBA Senior Staff Attorney with presenters Diane Marshall-Freeman, Partner, and Christopher D. Keeler, both of Fagen Friedman & Fulfrost, San Diego, California.  You may register for the webinar here.  Please contact Laura Baird with questions regarding CLE credit for COSA webinars in your state.]

North Carolina school board may refuse to implement new law that eliminates teacher tenure

According to the News & Record, the Guilford County Board of Education (GCBOE) has voted to refuse to implement a new North Carolina law that eliminates tenure for some teachers.  Under the new law, school leaders have until July 1 to pick 25% of teachers, with at least three years of experience, and offer them new four-year contracts.  Under their new contracts, the teachers would receive $500 compounding salary increases over the four years, but they must surrender their tenure.

Voting to uphold the the state and U.S. constitutions, GCBOE Chairman Alan Duncan pointed out that tenure rights are property rights for vested teachers. School board member Ed Price questioned how the 25 percent of teachers would be chosen and whether test scores would be a factor.  With that approach, he said, “some teachers may shy away from low-performing classrooms or schools.”

Although the board initially approved a motion to direct the school district’s superintendent not to make recommendations on how to pick the 25% of teachers, it later tabled the motion and will vote next week on whether to implement the law or not.  Of the board’s 11 members, six have voiced support for not following the law.

The board’s refusal to follow the law will take GCBOE in uncharted legal territory.  Although other school boards in the state have passed resolutions opposing the tenure law, none have said they won’t follow it.  According to Sandi Jacobs, vice president and managing director of state policy for the National Council on Teacher Quality, a number of other states have changed how tenure is earned and whether that protection is permanent.  Jacobs noted that 20 states tie teacher tenure to student learning.  She also observed that she hadn’t heard of districts trying to opt in or opt out of state policy, as Guilford County might.

Source: News & Record, 2/4/14, By Marquita Brown

[Editor’s Note: In December 2013, Legal Clips summarized an article on WRAL.com reporting on the North Carolina Association of Educators’ suit challenging the state’s elimination of tenure.]

Parent sues Florida district over service animal policy requiring parent to provide handler and insurance

CBS Miami reports that the mother of a student who suffers from cerebral palsy has filed suit in federal court against the Broward County School District (BCSD) over the school district’s service animal policy.  The BCSD is allowing her son, Anthony Marchante, to bring his service animal–a canine–to school only on the condition that the mother, Monica Alboniga, provide a handler for the dog and adequate insurance coverage.

Marchante is prone to seizures, and the service dog provides warning alerts.  The dog also has a calming effect on Marchante.  Although the BCSD is currently allowing the dog to accompany Marchante to school, Alboniga is required to be present to handle the dog.

Last week the board discussed a new service animal policy that would require providing a handler and insurance proof.  “We may have to come back to tweak the policy but we are committed to do what’s necessary for every student to be successful in school,” said BCSD Superintendent Robert Runcie.

Source: CBS Miami, 1/28/14, By Joan Murray

[Editor’s Note: In June 2011, Legal Clips summarized the ruling by a California federal district court in C.C. v. Cypress Sch. Dist. issuing a preliminary injunction allowing a student with autism to be accompanied by his service dog at school.  The court concluded that the student had demonstrated a likelihood of success on the merits of his Americans with Disabilities Act (ADA) claim that the dog is a service dog under the ADA and that the school district failed to demonstrate that its educational program would be fundamentally altered if the dog is allowed to accompany him to school.] 

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