Attacks on Foreign Students in Russia Lead to Worries About Safety of Study Abroad Programs

Fri, 12 Mar 2010 16:20:00 GMT

Study abroad programs continue to be scrutinized as more headlines spotlight potential risks and the serious as well as fatal consequences for students. For example, this past week, a Korean Student identified as Shim was attacked by a masked assailant and is reported to be in critical condition at a Moscow hospital. There have been previous attacks reported in Moscow targeting foreigners including one that killed a foreign student last week--raising concern that the attacks against Koreans may be linked to hate crimes.

NINTH CIRCUIT AFFIRMS DENIAL OF REQUEST FOR ANONYMITY IN CHALLENGE TO HAWAIIAN SCHOOL'S ALLEGEDLY DISCRIMINATORY ADMISSIONS POLICY

Thu, 11 Mar 2010 19:13:23 GMT

On March 2, 2010, the Ninth Circuit Court of Appeals affirmed a Hawaiian district court decision denying the request of applicants to the Kamehameha Schools to proceed anonymously in a lawsuit challenging the school’s admissions policy, and further affirmed the district court’s dismissal of their claims for failure to identify themselves.

The plaintiffs were prospective students, applicants to the Kamehameha Schools, the largest independent school system in the United States, comprised of nearly 7,000 students. Princess Bernice Pauahi, the last descendant of the Hawaiian monarchy, established the school system in 1884, and since that time the school has stood as a bastion of Hawaiian culture. The Kamehameha Schools’ admissions policy explicitly provides that all qualified applicants with Hawaiian blood must be admitted to the school before any non-native Hawaiian applicants.

When plaintiffs filed suit against Kamehameha Schools claiming the admissions policy constitutes unlawful discrimination, they requested permission to proceed anonymously. Plaintiffs based their request for anonymity on threats made against them on the internet, past threats of violence against others in similar lawsuits, and specific incidences of native Hawaiians committing violent crimes with racial overtones against non-natives. The district court denied plaintiffs’ request for anonymity, and then dismissed the case after plaintiffs failed to disclose their identities.

The Ninth Circuit affirmed, holding that that district court did not abuse its discretion in denying the request for anonymity and dismissing the case. In reaching its conclusion, the appellate court considered the five factors that the district court balanced in determining whether to allow plaintiffs to proceed anonymously over Kamehameha’s objection: (1) the severity of the threatened harm; (2) the reasonableness of plaintiffs’ fears; (3) plaintiffs’ vulnerability to such retaliation; (4) prejudice to Kamehameha; and (5) the public interest.

According to the Ninth Circuit, the district court did not abuse its discretion in finding plaintiffs’ fear of harm was unreasonable, in part because “many times people say things anonymously on the internet that they would never say in another context and have no intention of carrying out.” In light of the strong general presumption that parties should conduct litigation in their own names, based in part on the public’s right to open courts, the district court did not abuse its discretion in finding that the public interest outweighed plaintiffs’ interest in proceeding anonymously.

However, it should be noted that the Ninth Circuit indicated that had the district court reached the opposite result, the Ninth Circuit would likely have affirmed that opposite result as well, finding no abuse of discretion: “As an appellate court, we are constrained by the applicable standard of review. Had the district court found that anonymity was appropriate, we likely would have concluded that the district court did not abuse its discretion.”

Sixth Circuit Rules Michigan Religious School Teacher is Not a "Ministerial Employee" Under the ADA

Wed, 10 Mar 2010 17:48:30 GMT

On March 9, 2010, the Sixth Circuit Court of Appeals held that a former teacher at a religious school was not a “ministerial employee” for purposes of the Americans with Disabilities Act of 1990. Thus, the court held that the EEOC and the teacher could pursue claims for disability discrimination and retaliation against the employer under the ADA and the Persons with Disabilities Civil Rights Act, a Michigan state law that is substantively similar to the ADA.

As a starting point, the ADA prohibits an employer with fifteen or more employees from discriminating against a qualified individual with a disability on the basis of that disability with respect to conditions of employment. The ADA also contains an anti-retaliation provision, which prohibits an employer from discriminating against an individual because that individual opposed an act or practice made unlawful by the ADA or asserted a claim under the ADA.

However, the ADA’s coverage is not absolute, and there are some gaps in the protection it affords. One such gap in protection is the “ministerial exception,” which allows religious entities to give preference in employment to individuals of a particular religion and to require all employees to conform to the religious tenants of the organization. Thus, an individual’s discrimination or retaliation claim will be barred under the ministerial exception if (1) the employer is a religious institution, and (2) the employee is a ministerial employee.

In this case, Cheryl Perich was a “called teacher” at Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”). Called teachers were one of two types of teachers employed at the school, the other type being contract teachers. Called teachers differed from contract teachers in that called teachers had completed certain classes in the Christian faith, were admitted to the teaching ministry, and were hired on an open-ended basis rather than on a one-year renewable term. Putting the classification aside, Perich’s duties as a called teacher were identical to the duties she had previously performed as a contract teacher at the school.

The parties did not dispute that Hosanna-Tabor was a “religious institution,” so the key issue on appeal was whether Perich was a “ministerial employee” for purposes of the ADA. On appeal, the Sixth Circuit reversed the district court and held that Perich was not a ministerial employee.

In reaching its decision, the Sixth Circuit noted that whether an employee is ministerial is determined by looking at the employee’s primary duties. Here, the court found that Perich’s primary duties were not religious in nature–she spent only 45 minutes of the seven hour school day devoted to religion. She taught secular subjects and rarely introduced religion into secular discussions, and her duties as a called teacher were identical to those she had performed as a contract teacher. Thus, the court held that excluding Perich from coverage under the ADA would be both “illogical and contrary to the intention behind the exception.”

Michigan Jury Finds School Violated Title IX, Awards Student $800,000 For Peer Harassment

Tue, 09 Mar 2010 18:49:14 GMT

The Detroit Free Press reports that a federal jury awarded damages of $800,000 to a student who suffered peer-on-peer harassment at Hudson Area Schools.

The plaintiff, a child of David and Dena Patterson identified as “DP,” started to experience bullying as a sixth grader. During sixth and seventh grade, students routinely called DP names such as “queer,” “faggot,” “pig” and “Mr. Clean.” DP estimated he was called such names on over 200 occasions in seventh grade. Students also pushed DP into lockers in the hallway. As DP continued through the school system, he continued to endure attacks of increasing intensity. Students broke into DP’s locker and urinated on his clothing, threw his shoes in the toilet, and mocked DP in class.

The Hudson Area Schools responded to these attacks largely by verbal warnings, which worked to some extent, ending further misconduct by the punished students. However, despite such success, other students were always there to pick up the harassment in place of the previously-reprimanded students. As a result, DP endured systematic harassment from his peers from sixth through ninth grade.

Finally, at the end of DP’s 9th grade year, the situation hit its breaking point. Following a Friday night JV baseball practice, DP’s teammates blocked him into a corner in the locker room while another teammate stripped naked, jumped on DP, and rubbed his genitalia in DP’s face. The teammate was expelled for the few days left in the school year, but just a week later was permitted to attend a school sports banquet.

DP’s parents filed suit on his behalf, alleging a variety of state and federal law claims, including violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681. While Title IX is well known for its role in ensuring gender equality in athletics, its mandate is not so limited. Title IX provides that no person shall be, “on the basis of sex. . . subjected to discrimination under any education program receiving Federal financial assistance.” Under Title IX jurisprudence, educational institutions receiving federal funding may be held liable for peer-on-peer sexual harassment where:

(1) the sexual harassment was so severe, pervasive, and objectively offensive that it effectively barred the student’s access to an educational opportunity or benefit;
(2) the institution had actual knowledge of the sexual harassment; and
(3) the funding recipient acted with deliberate indifference to known acts of harassment.

Initially, the trial court dismissed DP’s Title IX claim for failure to satisfy the third element: deliberate indifference. However, in January 2009, the Sixth Circuit Court of Appeals reversed, remanding the case back to the district court for trial.

In the order reinstating DP’s Title IX claim, the Sixth Circuit emphasized that “even though a school district takes some action in response to known harassment, if further harassment continues, a jury is not precluded by law from finding that the school district’s response is clearly unreasonable.” The Sixth Circuit rejected the school’s argument that its reprimands to individual students were effective as to those perpetrators. “Hudson’s success with individual students did not prevent the overall and continuing harassment of DP, a fact of which Hudson was fully aware, and thus Hudson’s isolated success with individual perpetrators cannot shield Hudson from liability as a matter of law.”

It was the Sixth Circuit’s reversal last year which sent DP’s lawsuit back on course for trial, setting the stage for this week’s determination by a Michigan jury that the Hudson Area Schools violated Title IX, and awarding DP $800,000 in damages. An appeal may follow.

As we await further proceedings in this matter, schools should heed the warning from the Sixth Circuit in the prior appeal: where a school has knowledge that its methods for dealing with peer-on-peer harassment are not effective in curtailing the overall harassment, they may not simply continue to employ those methods, but must seek out a new solution to end the harassment.

GA Joint Committee on Education Hears Testimony Re: Due Process Hearing Burden of Proof

Tue, 09 Mar 2010 15:07:27 GMT

For the second year running, the Joint Committee on Education has raised the possibility of legislative override of the state regulation shifting the burden of proof in special education due process hearings to Connecticut school districts. Yesterday, in a hearing that started at 3:30 in the afternoon and went late into the night, the Committee heard testimony from advocates pro and con, on this issue as well as others currently under consideration. I was honored to testify before the Committee on behalf of the Connecticut Council of School Attorneys, an organization under the auspices of the Connecticut Association of Boards of Education (CABE) working on behalf of Connecticut school districts. According to CABE staffers, Connecticut is one of only 2 states in the country that always place the burden of proof on the school district; 48 other states place the burden of proof on the moving party, whether that party is the parent or the district. Looking for a copy of my testimony? Here it is. Want to see what everyone had to say? The entire hearing was televised on CTV. Have some feedback of your own? Write to your State Representative or State Senator and let them know. The measure faces fierce opposition, even within the Committee itself. Let your voice be heard.

Ninth Circuit Holds Arizona Charter School's Actions Do Not Satisfy "State Actor" Requirement

Mon, 08 Mar 2010 19:15:14 GMT

The Ninth Circuit Court of Appeals held on January 4, 2010, that a charter school’s alleged conduct did not satisfy the “state actor” requirement for purposes of a 42 U.S.C. §1983 claim in Caviness v. Horizon Cmty. Learning Ctr., 590 F.3d 806 (9th Cir. 2010).

The lawsuit revolved around plaintiff Michael Caviness, who had served as a teacher and track coach at Horizon Community Learning Center in Phoenix, Arizona for six years. A female student enamored of Caviness, and angered by his relationship with his adult girlfriend, filed a grievance falsely alleging Caviness maintained an inappropriate relationship with the student. Horizon placed Caviness on paid administrative leave pending investigation, and during that leave prohibited Caviness from attending track meets. While the investigation largely cleared Caviness, the school deemed Caviness’s telephone calls with the student inappropriate and, as a result, chose not to renew Caviness’s contract. When Caviness sought new employment at another school, Horizon refused to provide affirmative references.

Caviness filed suit under 42 U.S.C. Section 1983, alleging Horizon, acting under color of state law, deprived him of a protected interest in finding employment by making false statements to potential employers, and further deprived him of First Amendment rights by prohibiting his attendance at track meets during the paid administrative leave. Section 1983 claims require a state actor. For private defendants, that requirement may be met where there is such a close nexus between the state and the challenged action that the private entity’s action must be treated as an act of the state itself.

The trial court dismissed Caviness’s claims for failure to satisfy the state actor requirement, and Caviness appealed. The Ninth Circuit Court of Appeals affirmed dismissal, holding Caviness failed to demonstrate sufficient nexus between the state and the alleged actions by Horizon. Despite the fact that Arizona law deems charter schools public schools, and despite the fact that several Arizona statutes regulated charter schools’ personnel policies, Horizon’s actions did not constitute state action under Section 1983.

CT DOE Circulates Draft Revised Special Education Regulations

Mon, 08 Mar 2010 05:24:02 GMT

In June 2007, the CT DOE started the process of revising the state special education regulations, and circulated its proposals for public comment. Based on the responses, the Department decided to revise its proposal and restart the review process. A new draft has emerged, dated February 3, 2010. According to the accompanying memorandum from Commissioner McQuillan, a new public comment period will follow. So, what's in the new draft that might be of interest to LEA's in Connecticut? For the most part, the new draft more closely tracks the IDEA requirements and narrows the differences between state and federal regulatory requirements. But there are some significant differences and changes from the earlier draft.

Pregnancy is no longer a condition granting automatic eligibility for special education services.
The statutes making seclusion and restraint restrictions applicable to LEA's have been translated into regulatory requirements under the auspices of the CT DOE, with specifics not contained in the broader statutory scheme.
The proposed regulations now state that each child with a disability shall be entitled to participate in graduation exercises even if not graduating with a regular high school diploma, and the child must be able to participate at least once.
The proposed regs require that if a child with a disability is placed in a non-degree-awarding private placement and meets the requirements for a high school diploma from the LEA's high school, the LEA is required to award a diploma to the student.
The regs codify the "interpretation" provided by CT DOE that a school year starts July 1 and runs until June 30, and that if a child with a disability turns 21 during that school year, the entitlement for services runs to the end of the school year in which the student turns 21.
The regs provide that personnel may be required to attend Professional Development activities ordered by CT DOE through compliance efforts.
ESY: Consideration of eligibility for and content of extended school year services must be accomplished early enough in the school year to allow the parent "sufficient time" to challenge the determination before the start of the ESY program.
The date of a referral to special education is not the date the referral form is filled out by the LEA, but rather, the date when the referral is made by parent, teacher, or outside professional.
An initial PPT must be held within 15 days of the receipt of the initial referral.
The initial evaluation must be conducted within 60 days of receiving consent for the evaluation. 60-day timeline not applicable if parent fails to make child available or enrolls child in another district.
If the child is eligible for services, PPT "may" develop IEP at the eligibility PPT and must implement it within 15 days of "this meeting", exclusive of time needed to obtain parental consent.
If IEP is not written at eligibility meeting, PPT to develop IEP must be held and IEP must be implemented within 15 days of eligibility determination, exclusive of time needed to obtain parental consent.
Prior Written Notice (PWN) of the actions of the PPT must be provided at least 10 days before the change in identification, services, evaluation or placement proposed by the PPT.
A full copy of the IEP must be sent to the parents within 10 school days after the PPT meeting.
If the LEA proposes an evaluation and the parent fails to respond, after 10 days the failure to respon is to be interpreted as a refusal of the request to evaluate.
Up to 10 percent of the population of the LEA may be identified as gifted.
IEP Goals must include short-term objectives with "objective criteria" evaluation procedures and schedules for determining mastery.
Although the rights of the parent transfer to the child at the age of 18, the student is permitted to make a written notification to the LEA that the parent continues to have the right to make educational decisions on behalf of the student despite attaining the age of majority.
Diagnostic placement timeline is changes to 40 school days maximum, and it is explicit that it is considered an evaluation of the child. If conducted as part of the initial evaluation, the 60-day timeline is extended to accommodate the diagnostic placement. Meetings with "designated personnel" must take place every 10 school days. Final IEP must be written 5 school days before the end of the diagnostic placement.
Homebound instruction must be provided after receipt of a certification on a form supplied by the LEA that the treating physician has consulted with the school health supervisory personnel and determined that the child cannot attend school due to a valid medical reason, the child will be absent for at least 10 school days, and the expected date of return to school. PPT may also provide homebound for a medically complex child with a serious illness or chronic condition who is absent from school sporadically, beginning no later than the 3rd day of absence if the child is able to receive instruction. In case of dispute, the parent must provide consent for consultation between the treating physician and school health personnel; homebound will be provided during the dispute if and only if consent is provided for consultation. Instruction may be provided in other locations such as a public library.
If an LEA requests that a parent transport a special education student and the parent agrees, the parent must be provided with mileage reimbursement. Mileage reimbursement is not required if the LEA offers and the parent rejects transportation, unless a hearing officer finds that the transportation offered by the LEA was not appropriate.

Students Join In Protest on the "Day of Action to Defend Public Education"

Fri, 05 Mar 2010 17:05:09 GMT

Students joined in protest at public colleges and universities across the nation on March 4, 2010, primarily in an effort to call attention to state education cuts and the rising cost of tuition.

At the University of Washington, the Seattle Times reports, hundreds of students marched on the Quad, while at Evergreen State College near Olympia, Washington, students took part in a mock "funeral" for education, complete with the delivery of a coffin to the state capitol. Video has emerged of students interrupting a legislative session by singing a creative version of "Amazing Grace," before being peacefully ushered away. The Oregonian reports that students at Portland State University assembled a rally of approximately 200 students.

At the University of Wisconsin-Milwaukee, police officers used pepper spray in an effort to break up a crowd of students storming the chancellor's office, resulting in 15 arrests, according to the Milwaukee Journal Sentinel. Video shows students throwing snowballs at Chapman Hall, and officers arresting a student.

In California, protesters literally took to the streets, as the Los Angeles Times reports that over 100 protestors blocked freeway traffic before being arrested. One eyewitness caught the event on video. Students at the University of California Irvine also joined in protest.

While nationwide protests were largely targeted at higher education, some California middle schools and high schools joined the cause, with over 500 students at the Los Angeles Unified School District participating in walkouts. The L.A. Unified School District—the nation’s second largest district—made headlines earlier this week when it announced it would issue approximately 5,196 layoff notices to faculty and staff. According to the Los Angeles Daily News, the move “would virtually eliminate school nurses and librarians, increase class sizes in fourth through eighth grade to a potential high of 44 students in middle school, and boost counselor loads to 1,000 students each.”

All major news networks, including CBS, NBC, and ABC reported on the March 4 protests.

Fourth Circuit Rejects Morgan State University Professor's Discrimination Claim

Fri, 05 Mar 2010 16:59:54 GMT

On February 19, 2010, the Fourth Circuit Court of Appeals affirmed the dismissal of discrimination and retaliation claims filed by a Morgan State University professor.

By way of background, before filing suit in federal court on a claim of discrimination under Title VII of the Civil Rights Act of 1964, a claimant generally must “exhaust her administrative remedies.” To do so, she must file a complaint with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged discriminatory act. In the alternative, that individual may file a complaint with certain state or local administrative agencies within 300 days of the alleged discriminatory act.

Rose Ure Mezu, an African American woman of Nigerian origin and Igbo ethnicity, served as a an associate professor at Morgan State University. In 2004 and 2005, Mezu applied for promotion to full professor, but she was denied. Morgan State’s denial of Mezu’s application came in an April 6, 2006 letter from Morgan State University President, Dr. Earl Richardson.

In the same letter, Dr. Richardson reminded Mezu of her right to an internal appeal. Mezu appealed, and was again denied in September 2006. Under Morgan State policy, Mezu had the opportunity for further internal appeal, but apparently did not further pursue the matter internally.

Mezu filed a charge with a local administrative agency, alleging that Morgan State had denied her tenure based on race and national origin in violation of Title VII of the Civil Rights Act of 1964. She filed her administrative charge on March 25, 2007—critically, more than 300 days after Dr. Richardson’s April 6, 2006 correspondence denying Mezu’s application for tenure.

After the EEOC issued Mezu a right to sue letter, Mezu filed suit in federal court. On Morgan State’s motion, the court dismissed Mezu’s Title VII claim as time barred, based on Mezu’s failure to file a complaint with the applicable local agency within 300 days of the alleged discriminatory act—Dr. Richardson’s April 6, 2006 letter of denial.

On appeal, the Fourth Circuit Court of Appeals affirmed because the discrete act forming the basis for Mezu’s claim fell outside the 300-day window preceding her March 25, 2007 complaint. The Fourth Circuit rejected arguments that the continuing internal appeals process at Morgan State affected the limitations period: “The time the initial employment decision was made and communicated triggered the commencement of the limitations period despite the pendency of the internal appeal and the possibility of a reversal of the initial decision.” The court also rejected Mezu’s retaliation claim, raised for the first time in federal court, because Mezu could not “attach her retaliation claim” to any claims properly before the court.

Obama Renews Initiative on Historically Black Colleges

Tue, 02 Mar 2010 22:48:12 GMT

On February 26, 2010, President Obama renewed the White House’s Initiative on Historically Black Colleges and Universities (“HBCUs”) by issuance of an executive order. President Obama introduced the executive order during a speech in the East Room of the White House.
He credited the initiative, which originated with President Carter and has been renewed by each administration since, with the creation of “cradles of opportunity” for diverse students.

The purpose of the order is to “increase the capacity of HBCUs to provide the highest-quality education to a greater number of students” and to improve HBCUs’ capacity to serve five core tasks:

• strengthening the capacity of HBCUs to participate in Federal programs;

• fostering enduring private-sector initiatives and public-private partnerships while promoting specific areas and centers of academic research and programmatic excellence throughout all HBCUs;

• improving the availability, dissemination, and quality of information concerning HBCUs to inform public policy and practice;

• sharing administrative and programmatic practices within the HBCU community for the benefit of all; and

• exploring new ways of improving the relationship between the Federal Government and HBCUs.

In addition, the executive order establishes the President’s Board of Advisors on HBCUs, to be comprised of up to 25 presidential appointees to “advise the President and the Secretary on all matters pertaining to strengthening the educational capacity of HBCUs.”

According to a White House press release, there are 105 HBCUs in the United States serving some 300,000 students. Notably, President Obama’s FY 2011 budget also includes $98 million in new funds to HBCUs, $20.5 million to the HBCU Capital Financing program, and $103 million dedicated to a science and technology workforce program at the National Science Foundation, targeting undergraduates at HBCUs as well as historically Tribal and Hispanic colleges and universities.

Williams Kastner Offers Free Webinar on TILA and Education Loan Regulations

Mon, 01 Mar 2010 17:52:30 GMT

On Wednesday, March 3, 2010 at 12:00 p.m. (PST), James Thomas of the Williams Kastner Education Law Practice Team will present a free webinar entitled: “Changes in Education Loan Regulations: The New TILA/Regulation Z and You.” The webinar will address the Federal Reserve Board’s new rules, in force as of February 2010. Attendees will obtain a firm understanding of how these new rules on Regulation Z of the Truth in Lending Act may affect educational institutions and their students.

To register now for this free seminar, e-mail seminars@williamskastner.com. An online meeting confirmation complete with instructions on how to join the webinar will be sent to all registrants.

Debate Begins on "Preventing Harmful Restraints and Seclusion in Schools Act"

Mon, 01 Mar 2010 17:39:47 GMT

This week the House will debate the “Preventing Harmful Restraint and Seclusion in Schools Act,” H.R. 4247. The Act is designed to prevent physical and psychological trauma which may result from the use of physical restraint and seclusion as a means to discipline students. According to the House Committee on Education and Labor, “a recent investigation by the U.S. Government Accountability Office found hundreds of allegations that children have been abused, and some even died, as a result of misuses of restraint and seclusion in public and private schools, often at the hands of untrained staff.”

The Act would apply to public and private schools which receive federal funding, and would impose an absolute prohibition against the use of mechanical and chemical restraints, as well as physical restraints which restrict breathing. Use of other physical restraints, as well as use of seclusion, would also be prohibited, except where the student’s behavior poses a risk to students or faculty. Where such restraints or seclusion could be used on students posing such a risk, these methods would only be available if no less restrictive means of discipline would protect students and faculty, and further would require appropriate monitoring.

The Act would also prohibit the inclusion of physical restraint or seclusion into a child’s Individual Education Program (“IEP”). For further consideration of how the Act might affect special education law in particular, consult the Special Education Law Blog.

The Act contemplates further regulations by the Department of Education, and calls upon state and local agencies, as well as schools, to establish certain training and policies designed to ensure implementation of the Act and to provide for reporting to parents promptly after use of any approved restraint or seclusion.

The Act has received widespread support from a variety of organizations, including the National School Boards Association. However, some have expressed concern that the Act encroaches upon areas of education law traditionally handled at the state and local level.

Following Earthquake, U.S. Universities and Families Scramble to Secure Students on Study Abroad Programs in Chile

Mon, 01 Mar 2010 17:27:00 GMT

U.S. universities and families with students studying abroad in Chile were disconnected from their students following a devastating 8.8 magnitude earthquake, which leveled buildings and highways, killing over 700 people on February 27. The earthquake is believed to be one of the most powerful earthquakes in the world in the last century. Parents and university officials are now setting about the difficult task of securing and making contact with students in Chile, a task made difficult with Chile left in what its president has declared as a "state of catastrophe." Among the universities affected, the University of Colorado (Boulder), Syracuse University, Oklahoma University , University of Wisconsin (Madison), University of South Carolina, Elon University, and University of Tennessee, have each reported on their efforts to secure their students, as has the International Studies Abroad organization. According to Education Abroad Director Jack Hobson at Oklahoma University, “[c]ommunication infrastructure in Chile has been overwhelmed with people checking in on loved ones." On the other side of the spectrum, Chilean students studying in U.S. Schools, such as St. Cloud State University, have also had difficulty getting in touch with their families in Chile.

When Is a Step-Parent a Parent for Purposes of Disclosing Educational Records?

Mon, 01 Mar 2010 05:00:29 GMT

An April 15, 2009 letter from the Family Policy Compliance Office (FPCO) addresses a complaint filed by a parent indicating that the school improperly disclosed the student's private educational information to a step-parent and grandparent during a meeting at school. If the child's father has parental rights and permitted the disclosure to the step-mother and grandmother, FERPA does not prohibit the disclosure, despite the objection of the biological mother. Furthermore, the term "parent" includes "an individual acting as a parent in the absence of a parent or a guardian". The US DOE has determined that a parent is "absent" if he or she is not present in the day-to-day home environment of the child. Therefore, if the step-parent is present in the home of the child on a day-to-day basis and the mother is not present, the step-parent would be considered a "parent" for purposes of FERPA and, according to the FPCO letter, disclosures of educational records to the step-parent would be permissible.

OCR: No Special Education Notation on School Transcripts

Mon, 01 Mar 2010 04:35:39 GMT

OCR's guidance letter issued October 17, 2008 In Re: Report Cards and Transcripts for Students with Disabilities, 108 LRP 60114 (OCR 2008) clarifies that references to special education services received by a student are acceptable on report cards intended for parent use in measuring student progress, but not acceptable on transcripts that may be disclosed to employers and post-secondary institutions.

The letter from OCR notes that local education agencies (LEA's) frequently make distinctions on report cards between general education classes, Advanced Placement, honors, and remedial levels, and special education classes may be similarly noted on report cards. For example, OCR uses the case of a modified 10th grade literature curriculum noted by using an asterisk or other symbol meant to reference the modified curriculum "as long as the statements on the report card, including the asterisks, symbols or other coding, provide an explanation of the student's progress that is as informative and effective as the explanation provided for students without disabilities".

Special notations, such as asterisks or symbols, are also permissible on report cards for students with disabilities receiving accommodations under Section 504 not affecting course content or curriculum, such as sign language interpreters, alternative materials, or extra time on tests. Further, in response to the question as to whether a report card for a student with a disability may simply refer to another document that more fully describes the student's progress, OCR responded "yes".

On the other hand, a transcript of student grades may not inform the reader that the student has a disability, has been enrolled in a special education program, or has received special education and related services. Why? "A student's transcript generally is intended to inform postsecondary institutions or prospective employers of a student's academic credentials and achievements. Information that a student has a disability, or has received special education or related services due to having a disability, does not constitute information about the student's academic credentials and achievements."

However, it is still permissible, according to OCR, for the transcript of a student with a disability to indicate, through notations or asterisks or other symbols, that the student took classes with a modified curriculum or alternate education curriculum. This is consistent with the ability of the transcript to reflect other levels of classes, such as Advanced Placement, honors, basic, and remedial instruction.

The transcript may not contain notations that a general education student received accommodations in general education under Section 504 such as use of Braille materials, because such a notation is irrelevant to the question of whether the student mastered the curriculum of the class and would only be for the purpose of identifying the student as a student with a visual impairment.

The transcript may indicate that the student received a certificate of attendance or other similar document, if such a notation does not disclose whether the student has a disability.

Oregon Legislature Passes Bill Repealing Prohibition on Religious Dress By Public School Teachers

Fri, 26 Feb 2010 16:57:21 GMT

The Oregon State Legislature took one large step toward ending Oregon’s longtime ban on religious dress by public school teachers this week when it passed HB 3686. Current Oregon law prohibits public school teachers from wearing any religious dress while engaged in the performance of duties as a school teacher. If signed into law, HB 3686 would repeal that ban.
According to reports, Oregon Governor Ted Kulongoski has not expressed concerns about the bill as he normally would if he believed it were flawed, but he has not decided whether he will sign the bill into law.

The Oregonian reports that Oregon is one of only three states that presently ban religious dress by public school teachers–a ban which apparently started in 1923 to keep Catholic nuns out of public schools. While there have been no complaints about a teacher’s dress in decades, lawmakers predict litigation will ensue if the ban on religious dress is lifted.

The ban on religious dress by teachers is codified at ORS 342.650.

Obama Nominates Goodwin Liu, a Key Figure in Education Law, to the Ninth Circuit Court of Appeals

Thu, 25 Feb 2010 18:27:57 GMT

On February 24, 2010, President Obama nominated Goodwin Liu to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit serves as the federal appellate court for federal court litigation in Washington, Oregon, Alaska, California, Idaho, Montana, Nevada, Arizona, and Hawaii.

Gordon Liu is currently an associate dean and law professor at the University of California at Berkeley. Professor Liu’s resume includes a clerkship for U.S. Supreme Court Justice Ruth Bader Ginsburg and another clerkship with Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.

In addition, Professor Liu previously served as a special assistant to the deputy secretary of the U.S. Department of Education and a senior program officer for higher education at the Corporation for National Service. His scholarship has earned him a multitude of accolades, including the Education Law Association's Steven S. Goldberg Award for Distinguished Scholarship in Education Law in 2007. Professor Liu served on the education policy and agency review teams during the Obama-Biden Presidential Transition.

Professor Liu’s background in education law and policy would make him a pivotal figure on the Ninth Circuit Court of Appeals, and could have a profound impact on education law jurisprudence for years to come. The Washington Post reports that Professor Liu is a controversial figure to some, by virtue of his criticism of “conservative legal theories” and his opposition to the appointment of Supreme Court Justice Samuel A. Alito’s nomination.

Also on February 24, President Obama nominated the Honorable Robert N. Chatigny to the Second Circuit Court of Appeals.

Forest Grove Case Drops Other Shoe

Thu, 25 Feb 2010 01:13:12 GMT

In a decision filed December 8, 2009, the United States District Court for the District of Oregon issued a ruling in the case that went all the way to the United States Supreme Court and back on the issue of whether a school district could be liable for tuition reimbursement to a private school in a case where the student had never before received special education services from the public school district. In Forest Grove School District v. T.A., 129 S.Ct. 2484 (2009), the Supreme Court held that the IDEA does not pose a categorical bar to such reimbursement. On remand for a determination of whether the hearing officer's reimbursement order should stand, the United States District court reversed, denying reimbursement to the parents on equitable grounds.

So, what equitable factors should be considered in determining whether reimbursement is appropriate and if so, how much? According to the Forest Grove court (citing others), notice to the school district provided by the parents of the need for private placement, existence of other more suitable placements, the efforts expended by the parents in securing alternative placements, the general cooperative or uncooperative position of the school district, and whether the student was placed for reasons unrelated to his/her disability are all permissible considerations.

In this case, the parents did not provide notice to the district until after the placement had already been made on March 24th, and then requested a hearing to require evaluation on April 18th. The district agreed to evaluate when asked and determined eligibility did not apply under either IDEA or Section 504 as of August 26th. On the theory that the district could not be held liable for reimbursement until after the "wrong" eligibility determination was made, this excluded liability for reimbursement during the period March 24th to August 26th.

The court found no helpful evidence in the record regarding the existence of other more suitable placements for the child, but found that the parents expended little effort in securing the placement at Mt. Bachelor Academy, doing so immediately after obtaining a recommendation from a professional, without even visiting the school. The court did find that the district failed to follow up on possible ADHD/OHI eligibility in an earlier referral, so the district's lack of cooperation in the referral process weighed in favor of reimbursement. However, the "decisive factor" in the court's decision was cited as the parents' decision to enroll the student in private school not because of the ADHD that resulted in eligibility for special education, but because of drug use and abuse of marijuana so severe that he was occasionally so drugged he could not get out of bed or speak, made thousands of dollars worth of calls to phone sex lines, scanned Internet pornography sites, and ran away from home. The school enrollment application therefore listed "inappropriate behavior, depression, opposition, drug use, runaway" as reasons for the placement.

Finally, although not citing this as an equitable factor in the court's decision, the court noted that the cost of the Mt. Bachelor Academy placement exceeded $5,000 per month, which, if provided for every student diagnosed with ADHD, could result in expenditures for tuition just for this subgroup of students somewhere between $12M and $26M per year, assuming a 9-month school year. Judge Mosman stated in his decision that he included this fact in his decision to demonstrate that "decisions, such as the one in this case, can have potentially devastating real world implications".

Philadelphia Student Claims School Violated Privacy With Web Cams On School-Owned Laptops

Wed, 24 Feb 2010 20:12:14 GMT

The parents of Blake Robbins, a 15-year-old student at Harriton High School, an elite suburban Philadelphia public school in the Lower Merion School District, have filed a lawsuit alleging that the school district violated Robbins’ privacy rights when it activated the webcam in his school-issued laptop. In response, the school district does not deny that it has remotely activated laptop webcams in the past. However, the school professed that it only did so to "locate a laptop in the event it was reported lost, missing or stolen so that the laptop could be returned to the student."

According to the complaint, Robbins learned of the school’s alleged use of the webcam when an assistant principal at Harriton High School, Lindy Matsko, cited evidence taken from the webcam on Robbins’ computer in support of the school’s accusation that he was using drugs. The family claims that the items Matsko perceived as “drugs” were actually candy.

While one would anticipate that the federal claims of the lawsuit would receive similar treatment in the district courts, whether in Pennsylvania or here in Washington, had this case arisen in Washington it would have implicated some interesting aspects of Washington privacy law. Washington’s Privacy Act prohibits all persons from eavesdropping or recording confidential communications. The Act prohibits the interception of “private communication transmitted by telephone . . . or other device,” or “private conversation” without the prior consent of all parties to the communication.

Oprah Winfrey Interviews Amanda Knox's Family

Wed, 24 Feb 2010 00:46:22 GMT

On February 23, 2010, Oprah Winfrey interviewed Amanda Knox’s family about the 2009 murder trial and conviction which resulted in Knox’s 26-year sentence in Italian prison. Amanda Knox was implicated in the murder during her term studying abroad in Italy as a University of Washington student. In video clips on Oprah’s website, Amanda’s sisters told of the emotional toll of the event on the family, while Amanda’s parents and other family members reflected somberly upon the short 10-minute phone call they receive from Amanda from prison each week.

Addressing the implications of the Knox trial and verdict for American students and their families, 20/20 co-anchor Elizabeth Vargas reported that “thousands of American families send their children overseas to be exchange students” each year. Such students and their families are placed in challenging circumstances when legal issues arise so far from home. Through interviews with jurors and others close to the case, Vargas confirmed that events immediately following the murder dictated Amanda Knox’s fate. Regardless of whether one believes Amanda Knox to be guilty or innocent, Vargas reported, it was apparent that the manner in which Amanda Knox and her story were handled shortly after the murder “early on cemented a negative opinion of Amanda, especially overseas, and that never really changed.”

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