Articles in the Council of School Attorneys category

NSBA’s legal advocacy making an impact for school districts: Negrón

The National School Boards Association files more legal briefs in federal courts and the U.S. Supreme Court than all other educational organizations combined, NSBA General Counsel Francisco Negrón said Sunday at NSBA’s 2013 Annual Conference.

Other organizations seeking to influence the courts include familiar names, such as the American Federation of Teachers, and lower profile ones, such as the Council of Parent and Attorney Advocates, a disability rights group.

But there is a newly aggressive voice in the courts: the U.S. Departments of Justice and Education. Negron said those agencies are filing briefs telling courts how the Obama administration thinks laws ought to be interpreted in lawsuits involving bullying, students with disabilities and other topics.

NSBA’s argument generally boils down to citing what the law actually says and asking courts not to interpret it in ways that will lead to new causes of action against school districts or expansion of conditions under which school boards can be liable for money damages.

For instance, the U.S. Supreme Court may decide to hear a case involving Colorado’s Jefferson County School District that could expand the obligations of school districts to pay for out-of-state, residential treatment of students with certain diagnoses. The central issue is whether districts can be compelled to pay for services that NSBA contends are medical treatment rather than educational services.

“We think the Supreme Court will take up this case,” Negrón said.

Legal advocacy by NSBA is a form of support available to every school board that is a member of a state school boards association, Negrón said. NSBA and attorneys at state associations will devote resources to any case that has widespread potential ramifications for school districts.

He noted that NSBA has a lot of help in preparing its arguments. It works closely with the Council of School Attorneys (COSA), a continuing education and legal advocacy group for attorneys in private practice who represent school boards and school districts. For instance, NSBA’s brief prepared for Jefferson Cy Sch. Dist. v Elizabeth E. was written pro bono by COSA member Joseph Tanguma of Walsh, Anderson, et al in Austin, Tex.

Negrón urged board members to encourage their attorneys to become members of COSA. “It helps when we get that call if we already have a relationship with that attorney through COSA,” he said.

— Eric Randall

Andrew Paulson|April 14th, 2013|Categories: Council of School Attorneys, NSBA Annual Conference 2013, School Law|

‘School avoidance’ a growing problem for districts, attorney tells COSA

It used to be called truancy, but it’s now called school avoidance or school refusal, and it’s a growing problem for districts, according to Michael McKeon of Sullivan, Schoen, Campane & Connon.

McKeon started his Friday afternoon session of the Council of School Attorneys’ 2013 School Law Seminar on School with a quote from Woody Allen: “80 percent of life, or success, is showing up.”

Increasingly, however, students are NOT showing up – they are refusing to go to school at all. While school avoidance is not listed as a clinical disorder in DMS-IV, it could be linked to separation anxiety disorder, social phobia, or conduct disorder.

Schools need to get involved in these cases because they must comply with their state’s truancy laws, and when appropriate involve state child welfare agencies for possible parental neglect.

Parents and students often blame school avoidance cases on the district, said McKeon. Primary justifications by families include students are being bullied, feel overwhelmed by school size or academic demands, or feel inadequate or have low self-esteem.

In case of a bullying claim, he said, districts must make sure it has anti-bullying policies in place and that it is enforcing them. It must adequately publicize and enforce Title IX grievance procedures.

Anxiety issues are harder to address, said McKeon. Districts should contract for the services of a psychiatrist, behavioral psychologist, or a certified behavior analyst. A qualified therapist can formally assess the student with the parents’ consent. This person also can review student records and the case without the parents’ consent.

District should only provide homebound instruction as a stop-gap measure, and only if the parents are in agreement with implementing a school reintegration plan.

The most successful approach to reintegration involves a gradual return to school, such as a shortened day, tutoring, staggered arrival and departure times, and staggered class pass times. This approach can be used in combination with appropriate pharmacological interventions, incentives for attending school, and placement in social skills groups.

Kathleen Vail|April 12th, 2013|Categories: Council of School Attorneys, Dropout Prevention, NSBA Annual Conference 2013|

Soaring autism diagnoses will bring changes to special ed programs: attorney

Will the recent changes in the way autism is being identified and diagnosed bring any changes to school special education programs? Probably, according to attorney Andrew J. Freeman of Hodson Russ.

Over the past decade, the number of children diagnosed with autism has soared, said Freeman, who presented at a Friday session of the Council of School Attorneys’ 2013 School Law Seminar. In 2002, one in 150 children was diagnosed with some form of autism. In 2008, that number increased to one in 88.

Under the new definition of autism in the DSM-V, autism, Asperger’s Syndrome, pervasive development disorder and child disintegrative disorder are now under an umbrella category.

Under this new definition, one study estimates that 25 percent of children now diagnosed with classic autism will no longer be eligible to be classified at having the disorder; 75 percent of students with Asperger’s and pervasive development disorder will no longer be eligible.

“That’s a significant finding,” said Freeman. “But a doctor’s diagnosis alone is not the basis for special education.”

Freemen recommended that schools now look beyond the labeled diagnosis and focus on the child’s actual performance in school.

Some schools are now rethinking having adult aides with students, since that does not provide for the least restrictive environment required by special education law. In New York, he said, aides must be used for a limited time and with a specific goal in mind. “You want to build independence, not dependence,” he said.

Freeman recommended that school districts be prepared for reevaluations to ensure that classification for autistic students is still appropriate. If students no longer qualify under IDEA, consider Section 504 eligibility. If students continue to qualify under IDEA, make sure that they are getting a free and appropriate education (FAPE).

“We will eventually see the benefits [of the new definition],” he said, “but we don’t know how it will play out.”

Kathleen Vail|April 12th, 2013|Categories: Council of School Attorneys, NSBA Annual Conference 2013, School Law|

Bullying remains ‘moving target’ for schools, COSA attorneys say

Why are we still talking about bullying? It remains a hot topic among school districts and attorneys, and was the topic of a Friday Council of School Attorneys’ session at the 2013 School Law Seminar in San Diego.

Presenters Seamus Boyce of Church, Church, Hittle & Atrium, Jim D. Long, senior attorney with the U.S Department of Justice Office of Civil Rights (OCR) and Anne Littlefield, of Shipman & Goodwin outlined the issues that continue to challenge school districts about preventing bullying while not violating students First Amendment rights.

“It’s a moving target,” said Boyce. “We must try to avoid some of the negative outcomes for our clients.”

Littlefield outlined some of the current cases of bullying facing school districts and gave some advice for lawyers to take back to their districts:

“A few things to avoid saying on the record: ‘Boys will be boys,’ and ‘Teens will be teens.’ Don’t call it a prank. When you do that, you are communicating to students, parents, community and teachers that you will not take it seriously.”

About OCR enforcement, Long said, “There are rules about this stuff, and the rules are your friends. Follow the rules. That’s what I tell school districts.” Schools must have statements of non-harassment and make sure there are procedures that provide for prompt resolution, he said.

According to Boyce, 49 states have laws regarding peer bullying. These laws often have specific requirements for districts and school boards, including forming policies, procedures, and preventions plans.

Issues of cyberbullying, social network bullying, bullying off-campus and bullying counterclaims based on First Amendment rights are trending right now, said Boyce.

Kathleen Vail|April 12th, 2013|Categories: Bullying, Council of School Attorneys, NSBA Annual Conference 2013, School Climate, School Law|

Attorneys look at legal effect of transgender employee cases on districts

Many schools are dealing with transgendered students, but more and more are now faced with the legal ramifications of transgendered employees, according to two Council of School Attorneys’ (COSA) lawyers at a Friday morning session of COSA’s School Law Seminar.

Karla Schultz and Carol Helms, with Walsch, Anderson, Gallegos, Green, and Trevino, of Austin, Texas, revealed that the U.S. Equal Employment Opportunity Commission (EEOC) had decided that transgender status and gender identity discrimination is included under Title VII of the Civil Rights Act.

“No federal law prohibits discrimination on the basis of transgender,” said Schultz. “That is why the EEOC ruling is significant.

Schultz talked about the EEOC ruling in the case of Mia Macy, a public employee who was employed as a male police officer in Phoenix. When he changed genders, she moved to San Francisco and was offered a job at a ballistics lab. But when the lab discovered that she was transgender, it rescinded the job offer and Macy sued. Macy won a settlement from the lab.

Helms discussed a case in New Mexico that involved an elementary school music teacher. The teacher, who was male, became a female while employed at the district. The district was supportive of the move, and did all the right things in an employment sense, said Helms. However, when a parent discovered that the teacher had YouTube videos of her cabaret act, she and several other parents asked that their children be removed from the class.

The school put the teacher on administrative leave to let the situation calm down. The teachers union and the media got involved, and the situation still hasn’t played out, said Helms.

In dealing with transgendered employees (or really any employees), Helms recommends that employees and managers must avoid discriminatory remarks. ‘“Just kidding,’ — that gets us sued. You may prevail on an EEOC clam but it costs school districts a lot.”

Kathleen Vail|April 12th, 2013|Categories: Council of School Attorneys, NSBA Annual Conference 2013, Uncategorized|

Education Talk Radio previews NSBA’s 2013 Annual Conference

Kanisha Williams-Jones, Director of Leadership & Governance Services at the National School Boards Association (NSBA), was a guest today on Education Talk Radio providing a preview of NSBA’s 2013 Annual Conference. Thousands of school board members, administrators, and other educators will be coming to San Diego to take part in the April 13-15 event.

Listen to the broadcast:

Listen to internet radio with EduTalk on Blog Talk Radio

The conference will feature more than 200 sessions on timely education topics, including federal legislation and funding, managing schools with tight budgets, the legal implications of recent court cases, new research and best practices in school governance, and the Common Core State Standards. A series of sessions will focus on school safety and security.

Expanded education technology programming will include site visits to the University of San Diego and Qualcomm’s Mobile Learning Center to explore its research laboratory on mobile learning; Birch Aquarium at Scripps Institution of Oceanography to examine the technology in science education and STEM; Encinitas Union School District to view its One-to-One Digital Learning Program; and the San Diego Zoo to learn about the cutting-edge learning tools used to teach at-risk students. U.S. Navy SEALs will show leadership and team building skills during another workshop.

The meeting also includes one of the largest K-12 educational expositions, with some 300 companies showcasing their innovative products and services for school districts.

General Session speakers include Academy Award winning speaker Geena Davis, who will be speaking about her work off-screen as founder of the non-profit Geena Davis Institute on Gender in Media. Davis works with film and television creators to reduce gender stereotyping and increase the number of female characters in media targeted for children 11 and under. She will explain how media plays a key role in children’s development, and how her organization is making a difference.

Television star Neil deGrasse Tyson, one of the world’s most engaging and passionate science advocates, will headline Sunday’s General Session. From PBS to NASA to Presidential Commissions, organizations have depended on Tyson’s down-to-earth approach to astrophysics. He has been a frequent guest on “The Daily Show”, “The Colbert Report”, R”eal Time with Bill Maher”, and “Jeopardy!”. Tyson hopes to reach “all the people who never knew how much they’d love learning about space and science.”

Monday’s General Session features acclaimed researcher and author Diane Ravitch, who has become one of the most passionate voices for public schools. Her most recent book, The Death and Life of the Great American School System: How Testing and Choice Are Undermining Education, makes the case that public education today is in peril and offers a clear prescription for improving public schools.

Learn more about the common core standards, new research on differentiated learning styles, and teaching “unteachable” children at the Focus On lecture series. Learn about new technologies for your classrooms as part of the Technology + Learning programs.

It’s not too late to register, visit the Annual Conference website for  more information.

Alexis Rice|March 6th, 2013|Categories: 21st Century Skills, Arts Education, Assessment, Athletics, Board governance, Budgeting, Bullying, Center for Public Education, Charter Schools, Computer Uses in Education, Conferences and Events, Council of School Attorneys, Crisis Management, Curriculum, Data Driven Decision Making, Discipline, Diversity, Dropout Prevention, Educational Finance, Educational Legislation, Educational Research, Educational Technology, Elementary and Secondary Education Act, Environmental Issues, Federal Advocacy, Federal Programs, Food Service, High Schools, Key Work of School Boards, Legislative advocacy, Mathematics Education, National Standards, No Child Left Behind, NSBA Annual Conference 2013, Nutrition, Obesity, Online learning, Policy Formation, Preschool Education, Professional Development, Public Advocacy, Rural Schools, School Board News, School Buildings, School Climate, School Law, School Reform, School Security, School Vouchers, Special Education, STEM Education, Student Achievement, Student Engagement, Teachers, Urban Schools|Tags: , , |

School security changed in the wake of Sandy Hook

How will school security change in the wake of the Newtown school shootings? It may be too early to know the long-term effects of the tragedy on schools, but in the short-term, at least, conversations about school safety have intensified in its aftermath.

Patrice McCarthy, deputy executive director and general counsel of Connecticut Association of Boards of Education, spoke to school board association leaders at NSBA’s Leadership Conference in Washington, D.C., Saturday afternoon on how her state association responded after the Newtown shootings.

McCarthy was joined by Francisco M. Negrón Jr, NSBA’s general counsel, and Jay Worona, general counsel and director of legal and policy services of the New York State School Boards Association.

Negrón pointed out that since the 1999 Columbine shootings, most school security has focused on indentifying disenfranchised students who could potentially become violent. However, after Sandy Hook, school boards and other education leaders are now looking at how to deal with threats from outside the school.

“We need to be aware of both,” said Negrón, “and assess both threat levels.”

School boards need to make sure district safety plans are up to date. Negrón recommended that such plans be reviewed, if not yearly, then at least every two years. “Safety plans must be real and dynamic,” he said. “Don’t put them on the shelf. Review them on a regular basis to make sure they meet your needs.”

Boards also should take the pulse of their community before taking measures such as hiring armed guards for schools. When you don’t talk to people, said Worona, the presumption is that you haven’t done anything. “We need to make sure people understand we can’t make our schools safe to the point that nothing will ever happen, but we do need to make them as safe as possible,” he said.

School board associations and individual school boards should know that national support is available to help after tragedies, said McCarthy. CABE received hundreds of telephone calls and offers of support within hours of the Sandy Hook news breaking, including from NSBA.

NSBA has a list of resources on school security, including articles from American School Board Journal, available here.

Kathleen Vail|January 26th, 2013|Categories: Council of School Attorneys, Crisis Management, Leadership Conference 2013, School Law, School Security, State School Boards Associations|Tags: , , , , , , , |

Court rules private school student is not eligible for Section 504 services

The U.S. Court of Appeals for the Fourth Circuit has ruled that a disabled student unilaterally placed in a private school is not entitled to special education services under Section 504 of the Rehabilitation Act if he remains in the private school.

The National School Boards Association (NSBA), joined by its Maryland and Virginia state associations, filed an amicus brief in the case, D.L. v. Baltimore City Board of School Commissioners, asking the court not to expand the law, commonly known as Section 504, to require public schools to fund the education of students in private schools beyond the parameters of the Individuals with Disabilities Education Act (IDEA), the nation’s main special education law. The January 16 ruling will impact public schools in the Fourth Circuit, which includes Virginia, Maryland, West Virginia, North Carolina and South Carolina.

“The court recognized that Section 504 does not obligate school districts to pay for special education and related services for students enrolled unilaterally in private schools by their parents,” said NSBA General Counsel Francisco M. Negrón, Jr. “This decision supports Congress’ intent that federal funds for special education and related services be reserved primarily for students enrolled in public schools.”

The case centered on a student with ADHD whose parents requested an evaluation for special education services from the Baltimore City school district. The school officials determined the student would be eligible for Section 504 services based on his disabilities but only if he attended a public school.

The three-judge panel also upheld the school district’s requirement that private school students must enroll in a public school to obtain Section 504 services. The decision stated that the district’s rule “does not violate the Free Exercise Clause merely because it causes economic disadvantage on individuals who choose to practice their religion in a specific manner,” according to NSBA’s Legal Clips.

For more details on the case, read the article in Legal Clips.

 

Joetta Sack-Min|January 23rd, 2013|Categories: Council of School Attorneys, School Law, Special Education|Tags: , , |

Experts show best practices for school safety plans in NSBA webinar

One week after the Sandy Hook school shooting in Connecticut, school officials again are asking whether they have enough measures in place to try to prevent a similar tragedy.

Two school safety experts showed best practices and answered urgent questions during a Dec. 21 webinar, “Planning For and Managing the School Crisis You Hope Never Comes,” sponsored by the National School Boards Association’s Office of General Counsel and the Council of School Attorneys (COSA). The webinar was designed to be an overview of tactics and resources to prevent and respond to a wide range of catastrophes, from natural disasters, shootings and other crimes, or technological and medical emergencies, such as a pandemic flu.

School safety practices have evolved tremendously since the Columbine High School shootings 13 years ago, said presenter Shamus O’Meara, a partner with the Minneapolis law firm Johnson Condon, Attorneys at Law P.A., who represented and advised the Red Lake and Rocori school districts, both in Minnesota, in their school shooting incidents. The second presenter, Rick Kaufman, was the communications director for Colorado’s Jefferson County School District during the Columbine shootings and is executive director of community relations and emergency management for the Bloomington Public Schools, also in Minnesota.

School safety plans no longer involve a simple grid that lives in a drawer—instead, they are comprehensive plans that address strategies for prevention and mitigation, preparedness, recovery, and response. The presenters encouraged school districts to build such a plan in partnership with other agencies, including law enforcement, local government, and public health. School climate and programs to deal with issues such as bullying are key to preventing incidents as well.

Out of more than 180 participants on the webinar, 86 percent reported having reviewed their school districts’ safety plan in the past year, which is a good sign, O’Meara said.

An important consideration is community involvement and recognizing the community’s values when making choices within a comprehensive plan, he added.

School officials should also practice those crisis plans regularly and ensure all new staff are adequately trained. An outside safety audit can correct weaknesses and a safety team can address ongoing needs and new issues that arise.

The speakers did not make any recommendations on the issue of allowing school administrators or teachers to carry guns. Another issue that surfaced on Friday was a proposal by the National Rifle Association (NRA) for a national school safety program that would pay for armed school safety officers at any school that wanted one. Major issues to consider include how to train school staff and how frequently, how the guns would be carried or stored, and whether the money could be better spent on other violence prevention programs, O’Meara said.

If a disaster does occur, Kaufman offered these–and many other–recommendations for communications with parents, school staff, and the media:

  • Mobilize a response team that shields the site, students, and staff from outside forces;
  • Make a call for assistance before it’s too late;
  • Understand it’s not “business as usual”;
  • Act in the short-term, but think in the long-term;
  • Know key messages and stick to them;
  • Don’t allow media to dominate school officials’ time, attention.

School districts looking for resources to update or revamp their existing school safety plans should first contact their state school boards association, COSA Director Sonja Trainor suggested.

An audio recording of the webinar is available on NSBA’s school safety resources website. Other resources that the speakers recommended include:

OSHA Statutory Requirement

National Fire Protection Association; NFPA 1600 Emergency Preparedness Standard: Voluntary standards for prevention, mitigation, preparation, response and recovery from emergencies for public, non-profit and private entities

National Incident Management System (NIMS)

The Final Report and Findings of The Safe School Initiative: Implications for the Prevention of School Attacks in the United States; U.S. Secret Service and U.S. Department of Education

Prior Knowledge of Potential School-Based Violence: Information Students Learn May Prevent a Targeted Attack U.S. Secret Service and U.S. Department of Education

 U.S. Department of Education guidance on FERPA, October 2007

U.S. Department of Homeland Security

U.S. Department of Education Office of Safe and Healthy Students

FEMA

U.S. Department of Education Emergency Planning

Emergency Response and Crisis Management Technical Assistance (TA) Center

Practical Information on Crisis Planning

“Emergency Exercises: An Effective Way to Validate School Safety Plans,” ERCM Express Newsletter, U.S. Department of Education

 A Guide to Vulnerability Assessments: Key Principles for Safe Schools, U.S. Department of Education

Action Guide for Institutions of Higher Learning, U.S. Department of Education

School Safety: Lessons Learned, U.S. Attorneys Office, Minn.

Complete Crisis Communication and Management Manual, National School Public Relations Association, Rick Kaufman (2009)

 

 

Joetta Sack-Min|December 21st, 2012|Categories: Board governance, Bullying, Council of School Attorneys, School Security|Tags: , , , |

NSBA to Court: School officials must be given flexibility in handling student harassment

The National School Boards Association (NSBA) is urging the United States Court of Appeals for the Eleventh Circuit to rule that school districts should not be held financially liable for harassment related to a student’s disability if school officials took appropriate steps to stop it.

NSBA, along with the Georgia School Boards Association (GSBA), the Alabama School Boards Association, and the Georgia School Superintendents Association, has filed an amicus brief in Long v. Murray County School District asking the court to uphold the standard set forth in the U.S. Supreme Court case Davis v. Monroe when determining whether school officials are liable under federal civil rights laws for peer harassment. The Davis precedent allows victims to collect monetary compensation when school officials are deliberately indifferent to known harassment based on a protected category that is so severe, pervasive, and objectively offensive harassment that it denies the victim access to the educational program.

“It is important that the court recognize that local school officials, who work closely with students and parents on a regular basis, are knowledgeable about community resources, and understand their students’ educational and emotional needs, know best how to prevent and respond to harassment in their own schools,” said NSBA’s General Counsel Francisco M. Negrón Jr.

The parents’ legal arguments rely on informal guidance given by the U.S. Department of Education’s Office of Civil Rights (OCR) through a October 2010 “Dear Colleague” letter that stated school district officials could be held responsible for claims of unreported harassment. In a December 2010 response to that letter, NSBA warned that the guidance overstepped the Supreme Court standard set by Davis and that it vastly expanded the definition of discrimination and harassment, circumventing precedent established by the courts. In a March 2011 letter to NSBA, OCR officials dismissed concerns that the guidance would lead to numerous and costly lawsuits against school districts; however, this case has proven otherwise.

“The federal government wants a one-size fits-all approach, but such a rule would require school districts to implement strategy after strategy even when the misconduct was isolated or minimal,” said Negrón. “The federal government’s approach creates an illusion of safety that would subject thousands of school districts to costly and unnecessary lawsuits diverting vital resources away from the classroom.”

Among other claims, the case will determine whether the Murray County school district in Georgia should be held liable under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act for money damages as a result of the suicide of a student with Asperger’s Syndrome. After the student reported incidents of peer bullying during his freshman and sophomore years, school officials responded effectively to all known occurrences at school. The student committed suicide at home during his junior year.

A date for oral argument date in the case has not been set yet. Phil Hartley and Martha Pearson, members of NSBA’s Council of School Attorneys, and partners in Harben, Hartley & Hawkins, LLP, are representing the Murray County school district. Hartley also serves as General Counsel for the Georgia School Boards Association.

Joetta Sack-Min|November 30th, 2012|Categories: Bullying, Council of School Attorneys, Crisis Management, Discipline, Policy Formation, School Law, School Security|Tags: , , |
Page 1 of 212»