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

A few months ago and few times, I wrote about a “problematic” placement decision by the Fourth Circuit in a case coming from Virginia (here, here, and here). Since then, there is more information to provide about the legal issues as well as a comment that is curious.

The school sought review in the U.S. Supreme Court. The National School Boards Association (“NSBA”) and others supported the petition seeking review. See the NSBA brief here.  The Supreme Court denied review.  The NSBA position was the same as my previous entry yet with even more legal support, including review of agency interpretations that “location” means the type of in-school setting where provision of the special education and related services will occur, such as a resource room. “Location” does not mean a particular school.

Finally, the comment. The commenter took objection to my observation that “[t]he best solution to problematic law, as always, is to create and maintain a healthy and cooperative relationship with student families.” Commenter wrote “[i]nteresting. So instead of complying with the court's ruling, you advocate that school districts talk nice to the parents and pull the wool over their eyes. I don't think that's good advice.”  Never did I suggest non-compliance and little do I think that healthy and cooperative relationships are based on the deception and misrepresentations that the commenter suggests.

The cases are replete with admonitions that IEP development is to be a cooperative process. The IDEA requires transparency, at least from the school, through things like prior written notice, procedural safeguards, access to records and the like. In the very case in question, the facts established that parents actually decided before hand that A.K. would attend their selected school only, while the IEP Team discussed the two schools under consideration, that parents knew the two schools proposed, and that the school's fault was simply not listing the two schools that were discussed within the document. 

I sit on both sides at the IEP Team table. For what it is worth, I believe open and honest communication does as much or more than mere technical compliance. After all, technical, legal compliance does not always equal moral compliance.  When dealing with our kids, I would like to think, and work for, improving our collective abilities.

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Recently, a reader wrote with a question and a situation.   

“I was looking at your website, and I was unable to find the answer to this question.  Is ability grouping allowed under Pennsylvania law?  In other words, a school has four classes for each grade level, and the students are grouped into four ability levels, from high achieving to low.  I've heard conflicting answers would like your insights.”

As readers know, I cannot give specific legal advice through this Blog.  But I can give my thoughts, generally (and welcome to hear yours), about this situation, so here goes. 

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The U.S. Equal Employment Opportunity Commission (“EEOC”) last year issued an enforcement guidance regarding discriminatory conduct toward employees with caregiving responsibilities. The guidance, which is used by EEOC investigators, provides data regarding workplace demographic changes and scenario examples of conduct that might be discriminatory.

Although the status of being a caregiver (whether to a child, adult, or a disabled relation) alone is not a protected classification, discriminatory conduct toward a caregiver can violate anti-discrimination laws when the conduct is related to the caregiver’s otherwise protected status. For example, refusing to grant tenure to a female professor who tool a leave of absence to care for a child. Like this example, a number of the scenarios and underlying case-law citation involve educational institutions. 

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On March 24, 2008 the U.S. Department of Education published proposed changes to the Family Educational Rights and Privacy Act (known as FERPA) regulations.  The changes are needed because of various statutory acts like the USA Patriot Act, two U.S. Supreme court cases, technology changes, and events like the Virginia Tech tragedy. The Department seeks comment and input on the proposal.

The proposed regulations offer definitional changes (clarifying that cyber-students “attend” a school; that social security numbers, student ID numbers, and unique electronic identifiers are not disclosable directory information, and more). Another proposal would permit a school receiving a record, such as a transcript to provide the record to the creating institution in order to verify the record as accurate and not falsified. “Personally identifiable information” is also changed to include information that, alone or in conjunction with other information, can lead to private student information (such as mother’s maiden name and information). 

Of particular interest in the higher education area, the proposal addresses concerns raised in the wake of the Virginia Tech tragedy and attempts to provide better guidance and assurance on disclosing information in health and safety situations. For students 18 and over, the proposal clarifies certain circumstances in which information can be disclosed to parents without consent, for example: when the student is a federal tax dependent of the parents; when necessary for health and safety; and when a student under age 21 violates substance abuse policies. 

The proposal also clarifies the means by which outside parties, such as contractors, may receive records without prior consent. Other matters address disclosure of “de-identified” information, verifying the identity of the person requesting records, among other items.

The Department will receive comments up to May 8, 2008. The link information explains how to submit comments.

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Religiously-affiliated independent schools and colleges need to take certain steps to have the protection offered by the religious exemption in the Americans With Disabilities Act, which states: “The provisions of this subchapter shall not apply to . . . religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. Whether an institution is entitled to the exemption is a factual question. A summary of factors is at the end of this entry.  

The Third Circuit “touched” on the issue of ADA’s religious exemption as applied to private schools in Doe v. Abington Friends School, 480 F.3d 252 (3d Cir. 2007). The plaintiffs claimed Abington Friends School (“AFS”) discriminated against their son, a student with disabilities (ADHD and learning disabled) attending the school. Among other things, the plaintiffs claimed AFS used improper discipline and failed to accommodate him.  

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The Ninth Circuit Court of Appeals, sitting en banc, in Bates v. United Parcel Service, Inc., re-visited the issue of the business necessity defense and an employer’s safety-based qualification requirements. The court ruled that a government safety rule that does not apply directly to the job at issue but is nonetheless related to the job’s requirements can be considered when determining whether the employer’s safety requirement is proper or discriminatory. 

In this case, UPS had a rule that required all package car drivers to meet a U.S. Department of Transportation (“DOT”) hearing standard. The DOT standard, however, applied only to drivers of trucks over 10,000 pounds gross vehicle weight. UPS applied the rule to all drivers, a rule that was discriminatory on its face.

A class of hearing impaired potential drivers challenged the rule. The trial court found for the plaintiffs, but the Court of Appeals, en banc, reversed and remanded for further proceedings in light of its “clarification” of the law.

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In a December 26, 2007 "Dear Colleague" letter, the U.S. Department of Education addressed "an issue involving students with disabilities seeking enrollment in challenging academic programs, such as Advanced Placement and International Baccalaureate classes or programs (accelerated programs)."  The letter would be applicable to any covered entity.

Apparently, some schools refuse to allow qualified disabled students the right to participate in such programs or require the student’s to forego some other right. These actions, said the Department, "are inconsistent with Federal law, and the Office for Civil Rights (OCR) in the U.S. Department of Education will continue to act promptly to remedy such violations where they occur."

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A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

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I have received some comments and the time has come to address some of them. Remember: this is not legal advice.

C.H. wrote with the following questions. “Do Medicaid rules require that group counseling services provided to special education students in schools be given in groups of 6 students or less? Do these rules vary from state to state? If Medicaid rules require small group counseling, does this conflict with Least Restrictive Environment rules that children be served in regular classrooms when appropriate?” Typically, Medicaid and education are fiefs alone. Although we know well that the two do meet and should be better coordinated, education rules would likely apply to a school-provided counseling service. Each state will have different rules. As to counseling and LRE, my thought is that counseling is not something inherently amenable to the concept of least restrictive environment. Counseling would seem to be unlike academic instruction or social activities that are open to all or required of all. The question might be whether the counseling is delivered in the right environment, but without the added layer of LRE.

Regarding the entry for Section 403(b) employee benefits plans, Kristine asks “Are you interpreting this regulation to mean that if a teacher complies with the election provisions, no additional tax is due?” Sorry, Kristine, I am not going to touch that one. You will need to consult tax experts and review the IRS guidance. 

Back to Medicaid and special education funding, an anonymous commenter asks “Is there a site where we can check how much our school district will lose each year because of these changes?” Not to my knowledge.  The actual loss will depend on a number of factors, such as how many students participate in medical assistance and whose parents permit the district to bill and how aggressive the district is in claiming medical assistance money.  In my experience, some parents will not permit the district to access such funds and some district really do not put much effort into securing the funds. Because of these factors, even taking the “savings” estimated by CMS as a per pupil amount would likely be wildly inaccurate because of the many factors. I suggest you contact the person in charge of the district’s medical assistance related matters and or the district’s business manager. 

Finally, suburbanmom asks, “Who do I contact if I think Title IX is not being enforced?” There are a number of places to turn. You may want to contact your school’s Title IX coordinator. You may also contact your state or the federal departments of education. This is a link to the federal DOE’s Office for Civil Rights, which enforces Title IX, among other laws. 

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