Education Law : Pennsylvania Education Law Lawyer & Attorney : Fox Rothschild Law Firm : Education Statutory and Regulatory Changes

Back in October, I reported on a case out of Hawaii where school districts changed the school calendar to have Furlough Fridays in a money saving effort.  Parents of a number of special education students filed suit claiming the change amounted to a change in programing under IDEA, without parental consent.  While not yet ruling on the merits, the U.S. District Court has at least hinted at what the answer might be on this question.  The Court has refused to issue a preliminary injunction to stop Furlough Fridays, finding that it believes the plaintiffs were unlikely to succeed on their claims.  Thus, we have a hint of where the Court may be going, but a final decision may be some way off. 

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President Obama has signed into law the Fiscal Year 2010 National Defense Authorization Act , which provides for additional leave rights for military families under FMLA. 

First, there is a provision relating to qualifying exigency for up to twelve weeks of leave for family members of both active duty service members and national guard and reservists who are deployed to a foreign country.  Previously, the leave was only for National Guard and reservists.  Exigency leave is permitted for short-notice of deployment, military events and related activities, childcare and school, financial and legal responsibilities, counseling, rest and recuperation for five days, post-deployment activities and other activities as agreed with employer.

Second, caregiver leave has been extended to include veterans who are undergoing medical treatment, recuperation or therapy for a serious injury or illness.  The veteran must have been in the armed forces, including the National Guard or reserves, at any time five years prior to the treatment and the condition being treated must be incurred in the line of duty or a pre-existing condition aggravated in the line of duty.  

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In 2008, President Bush signed the Americans with Disabilities Act Amendments Act (“ADAAA”), which expanded the protections of the ADA to include those who have an actual or perceived physical or mental impairment “whether or not the impairment limits or is perceived to limit a major life activity.” In passing this bill, Congress expressly rejected several Supreme Court decisions that took a more narrow view of the ADA. The question that remains is what standard applies to cases of alleged discrimination that occurred prior to the ADAAA?

It appears that several courts have looked at this issue and reached different conclusions. In Rohr v. Salt River Project Agricultural Improvement & Power District, out of the Ninth Circuit Court of Appeals, while not addressing the issue directly, the court noted that “the ADAAA sheds light on Congress’ original intent when it enacted the ADA” in 1990 and suggests it may be appropriate to read the amendments to allow for protection to a broader class of individuals, even in cases where the alleged discrimination occurred prior to the enactment of the ADAAA. However, the United States District Court for the Northern District of Indiana reached a different conclusion in the matter of Brooks v. Kirby Risk Corp. and found that the more limited standard endorsed by the Supreme Court applies to claims prior to the ADAAA, which went into effect in January of 2009, should be applied to these types of cases. The Brooks court notes that the Seventh, Fifth, Sixth and D.C. Circuit Court of Appeals have taken the view that the broader protections of the ADAAA only apply to actions of alleged discrimination after its enactment, while the Ninth, Tenth and Eleventh Circuits have declined to decide the issue, but at least implied they could by applied to actions prior to the effective date of the ADAAA.

Interestingly, if the Circuit Courts continue to split on this issue, it may be the Supreme Court, whose analysis of the ADA was expressly overturned by the ADAAA, that may get the last word on this issue. Unless, of course, Congress decides that the Supreme Court gets it wrong and decides to amend again.   

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The Ninth Circuit Court of Appeals has found in the case of Barker v. Riverside County Office of Education (October 23, 2009) that the anti-retaliation provisions of Section 504 of the Rehabilitation Act of 1973 and the ADA apply even if the person who claims to have been retaliated against is not themselves disabled. In Barker, a special education teacher voiced concerns that her employer’s special education program was not in compliance with federal and state law and then, along with a coworker, filed a complaint on this alleged non-compliance with the U.S. Department of Education’s Office for Civil Rights. In response to this complaint, according to the employee, the school district retaliated by reducing her case load, intimidating her, excluding her from meetings and other activities that, according to the employee, led to an intolerable work environment.

The employee filed suit claiming she had been retaliated against for filing the complaint and voicing concerns about the alleged non-compliance of the district’s special education program. The court was asked to determine whether this teacher, who herself was not disabled, was afforded the protections of the anti-retaliation provisions of the two statutes. Looking at both statutes the court found that both protected "any person" who was retaliated against. The court further noted its belief that Congress intended to protect other individuals in recognition of the fact that disabled individuals may need assistance in vindicating their rights.

The lesson of Barker is clear. If school districts or other educational entities have employees who complaint internally or to outside agencies about the treatment provided to disabled students or employees, they must be treated the same as other employees and any appearance of retaliation for the complaints must be avoided.

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In Hawaii, students will now be getting seventeen Fridays off this year and seventeen next year in an effort to save money through a furlough of teachers.  However, several lawyers representing a group of students who qualify for special education have filed a suit trying to stop the plan.  The argument is that by taking seventeen days out of the school year, this is a change in programs and services the disabled children receive.  Given that the parents of these students were not consulted prior to this change, the suit alleges it violates the rights of the parents under IDEA.  The suit seeks a temporary restraining order and the first furlough day is this Friday.  Thus, we may know very shortly if in fact such a change in scheduling is a change that requires parental consent under the IDEA. 

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As I predicted back in June, when the Supreme Court issued it ruling in Gross v. FBL Financial Services, Inc., Congress has taken aim at trying to reverse the Court's decision legislatively.  In June, the Supreme Court's decision in Gross did away with burden shifting under the ADEA, in which once the employee established that age was at least part of the reason for the adverse employment decision, the burden shifted to the employer to show it was not.  In Gross, the Court ruled the burden is upon the employee the entire case to show the adverse action was taken against him or her as a result of their age.  In response last week, The Protecting Older Workers Against Discrimination Act was introduced in Congress.  The bill, if passed, would essentially overrule the decision in Gross by requiring employers, once an employee establishes that age was a factor in an adverse employment decision, to show it complied with the law.  There will be further posts on this bill as it makes its way through Congress.     

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Currently pending before the Pennsylvania State Senate is Bill Number 1007, which would prevent a school board from appointing or dismissing a superintendent where three or more of its members have lost their bids to remain on the board in the primary elections. The nature of the issue is that school board members run for re-election in the primaries in May and, even if they lose in the primary, continue to sit on the board through the regular election in November and until the new board is installed in December. In the past, the board, including the members who have been “voted off”, could take actions to either appoint or dismiss a superintendent during that time-frame and Senate Bill 1007 attempts to limit the ability to do so.  

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This summer has seen several opinions from around the country on the issue of religion in public schools.  Here is a brief synopsis of several cases.

In the case of Roark v. South Iron R-1 School District, the Eight Circuit Court of Appeals upheld in part a decision that barred a school district in Missouri from allowing representatives of Gideons International from distributing Bibles to fifth graders during the school day, a thirty year old tradition.  While decision to end the practice is certainly not shocking, the decision does offer some insight to school districts that are faced with a situation of having old traditions that need change.  In light of the lawsuit about the Bibles, the local school district adopted a new policy related to the distribution of literature in its schools, which was also challenged.  The District Court, seeing a tradition of Bible distribution, held the new policy was done for the purpose of promoting religion.  However, the Eight Circuit disagreed and stated that the new policy was facially neutral, applied to all groups that wished to distribute literature in the schools and had not yet been put into practice.  Thus, districts faced with attempting to adopt policies to change outdated practices can do so, if the policy is facially neutral, applies to all group and, when put into practice, is applied in a content neutral manner.

In Christian Legal Society v. Eck, it was held that a public law school may properly withhold funding from a religious group that prevents membership on the basis of religion and sexual orientation.  In Eck a public law school provided funds through a mandatory student activities fee, but had policies that required groups that accepted the funds must be open to all students and not discriminate on the basis of, among other things, religion and sexual orientation.  The Christian Legal Society required members affirm a statement of faith that would exclude non-Christians and homosexuals from membership.  The law school refused to provide the group funding, but did allow them access to school facilities and all other law school services that other groups had access to.  The Court upheld the decision of the law school finding the policy was neutral, both on its face and its application, and that the school allowed students in the group access to all other services available to other groups.  This case is another reminder that policies and practices must be neutral to the issue of religion to stand up in court.

In Corder v. Lewis Palmer School District No. 38, the Tenth Circuit Court of Appeals upheld the requirement by a school district that students speaking as valedictorians at graduation provide their speech to the administration for approval and could be disciplined if they sway from the submitted speech.  In this case, a student submitted her speech, but then deviated from it when the speech was given by inviting the audience to find out more about a relationship with Jesus Christ.  The student was required by the school to issue a public apology prior to receiving her diploma for any offense the statement may have caused for deviating from the speech she submitted. The Court reasoned that graduations are a school activity over which the school could exercise control and it had the ability to have more control over the activity, as opposed to speech not supported by the school.  With the analysis, it would be interesting to see if the student had simply yelled this statement out if the speech would be protected.  Nonetheless, the lesson for schools is that if you sponsor the activity, you are able to have more control over what is said. 

Finally, a little closer to home in Busch v. Marple Newtown School District, the Third Circuit Court of Appeals upheld the action of a school district which would not allow a parent to read scripture as part of a presentation to her child’s class.  The presentation was part of a week long project in which each student was the student of the week and one component was that the parent of that student was allowed to present something to the class.  The Court held that given the student was in kindergarten and the students in the class were required to be there, the presentation could appear to be an endorsement of religion.  In addition, because other parts of the project allowed the student to voice his religious views, for example he made a poster that included among other things a drawing of his church and the statement that he enjoyed going to church, the decision of the school was not based on discriminating against the parents’ religion.     

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In the case of Mary Courtney T. v. School District of Philadelphia, in which a decision was issued July 31, 2009, the Third Circuit Court of Appeals has held that where medical and other needs of a special education student can be separated out from the educational problems and needs of the student, the school district is not responsible for payment of those services which are not educational. 

In Mary Courtney T., the student was placed in a long-term residential psychiatric treatment center, which did not have educational accreditations and had no on-site school, special education teachers or school affiliations.  The evidence in the case, according to the Court, showed that the student's treatment at this facility was medical, despite the fact that it contained what could arguably be classified as educational components.  

The Court emphasized that it was not the tools used, but the goals of the program that are to be used to determine if the program was educational or medical.  The Court further explained that because the student's education was impeded by a complex and acute medical condition, and not a lack of educational services or a specific kind of placement, it was not the responsibility of the school district to address this need.  The Court distinguished this case from other cases where a simple change in placement, without the need for more extensive medical intervention, would allow a student to access his or her education.        

The Court explained that there must be a link between the treatment provided and the child's learning needs to qualify for reimbursement under the IDEA.  Put another way, the Court explained it "must consider whether the residential placement ... was necessary to provide [the student] with special education."  The Court looked at the program provided to the student and found that it was related to her medical needs, not her learning needs, and found that it did not qualify for reimbursement.  

Finally, the Court took an interesting approach on the issue of reimbursement, by skipping the normal first step of determining whether the school district provided an appropriate placement and only looked at whether the placement chosen by the parents, the psychiatric treatment center, was educationally appropriate.   

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