Friday, January 25, 2013

New DOE Guidance: Students with Disabilities and School Athletics

As widely reported in the news today under headlines reading:  "Schools Must Provide Sports for the Disabled," United States Department of Education Secretary Arne Duncan announced the issuance of new guidance clarifying public schools' responsibility to provide students with disabilities access to participation in extracurricular sports.  The guidance, issued via a "Dear Colleague Letter " dated January 25, 2013, implements the recommendations of a 2010 GAO report   on the topic. The impact of these new directives is yet to be seen.

 Read the Dear Colleague letter on students with disabilities in school athletics, at the link above.

Reminder: Schools May Not Require Parents to Obtain Medical Documentation of Disability

As the school year progresses, several issues arise every year.  One of them relates to the requirements for parents seeking to initiate an evaluation, particularly in the case of students with ADHD. Parents seeking accommodations or services for their children with ADHD or other disabilities are frequently informed, by their public school district, that they are required to provide medical proof of a diagnosis before the assessment may begin.  While a private prescription may be necessary for some school-related purposes - such as the dispensation of prescription medications during the school day -school districts may not require parents to privately pay for medical assessments or diagnoses before initiating evaluation under Section 504 or the IDEA.  Evaluation under either statute is required to be provided free of charge to parents.  This has been the invariable requirement since the inception of the statutes.
 "Under the regulation implementing Section 504, when a school district has reason to believe that a student needs or may need special education and/or related services because of a disability, the district must conduct an evaluation. While schools may consider and/or rely on information provided by the parent, schools may not require parents to provide diagnostic information or obtain outside assessments for students as a condition of proceeding further with an evaluation." Letter to Kniewel, OCR 2011

Tuesday, October 2, 2012

Third Circuit: Relocation Does Not Moot Comp Ed Claims

In a new precedential decisionD.F. v Collinsgwood, the Third Circuit held that a child's move out of state does not moot a compensatory education claim for past denial of FAPE. 

The ruling reversed the dismissal of a claim for compensatory education for a student with disabilities who was denied special education services and subsequently moved out of state.  The Court's analysis distinguished between compensatory remedies and prospective relief, holding that compensatory education is an equitable remedy determined case by case, and can be made available for parent's use through monetary fund, accessible wherever the parent may move.  Noting that allowing relocation to moot past claims for relief would leave a a huge gap in the remedial scheme of the IDEA, the court concluded that mooting compensatory education claims on the basis of relocation of parents would be illogical. In reaching its conclusions, the Court reinforced three primary concepts of the IDEA:   the Forest Grove notion that IDEA should not be interpreted to allow gaps in the remedial scheme; the equitable powers of the courts to fashion an appropriate remedy case by case; and,  the "F" prong of the fape requirement, which dictates that special education must be free and cannot depend upon parents' ability to "front" the cost of education.

Monday, October 1, 2012

Eastern District Finds No Rules of Evidence in Due Process Hearings

In Council Rock School District v MW, a school district appealing a due process hearing officer's award of tuition reimbursement to parents claimed, among other things, that the hearing officer had improperly admitted various items of evidence.  In upholding the decision in favor of parents, the court directly addressed the applicability of the federal and state rules of evidence to due process proceedings in Pennsylvania.

It has long been known, to those representing parties in Pennsylvania due process hearings, that the applicable evidence rules were vague and of unknown origin.  In M.W., the court sought the applicable rules directly and found, that neither the IDEA nor Pennsylvania law make Federal or State rules of evidence  applicable in due process proceedings.  The court then looked at the administrative law level, and found that the governing 'handbook' for due process proceedings also fails to bind the proceedings to evidentiary rules:
"The enacting Pennsylvania regulation says that
“[a]lthough technical rules of evidence will not be followed, the
decision shall be based solely upon the substantial evidence
presented at the hearing.” 22 Pa. Code. § 14.162(f).
Pennsylvania has created a Special Education Dispute Resolution
Manual, which references some evidentiary issues, but does not
provide the substantive rules of evidence that govern the
hearing."
Thus there appear to be no written rules although conduct of an evidentiary hearing with no rules at all  seems untenable.  
Parents in this case were represented by Ilene Young Law Offices.

Wednesday, July 25, 2012

Failure to protect a student may constitute 'willful employee misconduct" exception to sovereign immunity

The fight for compensation of victims of bullying and abuse in public schools has required an ongoing search for a cause of action and viable defendants.  Because school districts are government entities, tort claims against school districts for harm suffered by children during the school day are, with some limited exceptions, barred by sovereign immunity.  In Pennsylvania, the Pennsylvania Political Subdivision Torts Claim Act (PSTCA) bars damages claims against school districts and their officers acting in their official capacities.  There is an exception to this 'immunity' where "the act of the employee caused the injury, and such act constituted a crime, actual fraud, actual malice, or willful misconduct.” 42 Pa. Cons. Stat. § 8550

There have been suggestions of support in the past for the proposition that failure to protect a student, in violation of policies and procedures, may constitute 'willful misconduct', but this has remained a developing theory.  Recently, in the case of KA v Upper Perkiomen Sch. Dist.,  the theory was accepted.  Eastern District Federal Judge DuBois upheld a magistrate judge's holding that allegations of the failure of school administrators to protect a student from known danger adequately states a claim of 'willful misconduct.' The "failure to act" claims - more properly characterized as 'choosing not to act' - survived a motion to dismiss on grounds of immunity and  were allowed to proceed for compensatory and punitive damages for the harm suffered by the student.  The factual background of the case involved a student victim of sexual molestation by a teacher.

The legal holding was more generally applicable, however: "K.A., alleges that defendants willfully chose not to take action to protect her after receiving reports of the nature and extent of Miller’s inappropriate conduct from several school district employees. Defendants’ choice not to act, if proven, may constitute willful misconduct." slip opinion pp 3.

Wednesday, April 11, 2012

3rd Circuit: Opening Arguments in "I Heart Boobies" Appeal

The Easton Area School District  considered the popular "I heart boobies" breast cancer-awareness bracelets inappropriate  for school, and banned them.  Several students defied the ban during breast cancer awareness week, and were suspended for wearing the bracelets. They fought back, filing a federal suit, claiming the bracelets were free speech symbols of their support for breast cancer awareness.   Eastern District Federal Judge Mary McLaughlin ruled that the bracelets could be worn.

The District, financed by its taxpayers, appealed to the 3nd Circuit Court of Appeals. Arguments were heard before a full courtroom on April 10th.

“We’re not here to demonize boobies," school district attorney John Freund explained. "It’s the contextual phrase,” calling the bracelets “cause-based marketing energized by sexual double entendres," he suggested that it was a slippery slope from "I heart boobies" to  "feel my balls," in support of testicular cancer research. (Legal Intell)  (Lehigh Valley Express Times)

Freund pointed out that, “Middle school is a witch’s brew of hormones and curiosity," and Districts need to retain the ability to control their student body as they see fit.

The students, represented by the ACLU, countered that "everyone knows what "I heart boobies" represents.

Aspergers Bullycide Lawsuit Moves Forward in Texas

Parents' lawyer Marty Cirkiel, of Texas, has been in the forefront of the war against school bullying for many years.   In Brown v Ogletree, he represents the mother of a victim of bullycide.  A case with horrific facts, Brown concerns Asher, a young student with aspergers syndrome, who was relentlessly bullied, with attacks targeting the symptoms of his disability, his sexuality, and Buddhist religion. Due to his social disability, he was unable to protect himself and an easy target.  His parents' pleas to the school district were ignored. Asher's suicide made him another of the burgeoning number of victims of the culture of bullying fostered by the public school district's legal lack of accountability.  The opinion finds that the Parents' Complaint established their claims under federal law through detailed factual pleading of specific incidents of bullying, holding that the bullies fall, legally, within control of the school district while on school grounds, a prerequisite to assigning responsibility to the district.