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

Next, in matter not directly looking at schools, the Court has changed the analysis in age discrimination cases under the ADEA in Gross v. FBL Financial Services, Inc.  Prior to Gross, as with other discrimination claims, claims under the ADEA were sometimes approached with a burden shifting analysis.  Under this approach once an employee who was subject to an adverse employment action taken established that age was at least part of the reason for the decision, the burden then shifted to the employer to show that the same decision would have been made irrespective of the employee’s age. In Gross the Court rejected that notion and found that the burden is always on the employer to establish that the adverse action was taken against them on the basis of age.

This decision will have an effect on school districts in that in defending against age discrimination cases, the burden will always be on the employee. It is not clear how long this decision will remain in effect as it is possible that Congress may step in and overrule the decision by amending the ADEA, as was done with the Ledbetter case in the area of equal pay.
 

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The Supreme Court has issued its much anticipated decision in the Forest Grove matter ruling on the ability of parents of a student who has not been qualified for special education to seek tuition reimbursement under the IDEA. While there have been predictions of doom and gloom were the Court to reach the conclusion it did, that parents in this circumstance may seek reimbursement, a review of the analysis and facts of Forest Grove reveal that in the end the analysis of Burlington and Carter remain intact.

In Forest Grove, the student had been in the District for eleven and a half year with recorded history of trouble maintaining attention in class and completing assignments, which apparently got progressively worse. The parents requested that the District evaluate the student for special education needs, which it did and the District found that the student was not eligible. It is important to note that the evaluation was found to be legally inadequate. Shortly thereafter, the parents removed the student from the District and placed him in a private placement and then sought tuition reimbursement from the District.

The Forest Grove Court starts with the same analysis that has been used in tuition reimbursement for years: First, did the District fail to offer a FAPE? Second, is the private placement appropriate for the student? Finally, does a balancing of the equities weigh in favor of awarding reimbursement? Those familiar with these types of case should recognize the analysis, as it remains unchanged.

In looking at the first issue, the Court held that the failure to properly identify a student in need of special education is by definition a denial of a FAPE. The Court explains, “when a child requires special-education services, a school district’s failure to propose an IEP of any kind is at least as serious a violation of its responsibilities under IDEA as a failure to provide an adequate IEP.” Accordingly, so long as districts properly evaluate and identify students as well as offer appropriate programming, there is no increase in the likelihood that they will be liable for tuition reimbursement.

In looking at the last factor, the Court notes that the equities must also be considered. Included in this is the notice of the placement given by the parents to the District and the opportunity of the District to conduct an evaluation. These factors may be considered and, when appropriate, would justify a denial of tuition reimbursement.

The real lesson of the Forest Grove case is that districts continue to have a child find obligations and districts that meet that obligation have nothing to fear from Forest Grove. On the other hand, for district that have some problems with child find, Forest Grove should serve as a wake up call to show that student who are not properly identified have at their disposal all of the provisions of IDEA, including claims for tuition reimbursement.
 

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A Delaware County judge over-rules the Office of Open Records.  Signature Solutions v. Aston Township, DCCCP No. 4852-09.

For years school districts and other taxing authorities have charged title companies and closing companies a fee to obtain a certification of the tax imposed and owed on a property.  These fees varied, but generally did not exceed $50.  This was a way of raising money without raising taxes.

On January 1, 2009, when the new Right to Know Law (“RTKL”) went into effect, companies involved in real estate closings and re-financings began submitting RTKL requests instead of requests for tax certifications. Charges for RTKL requests are capped at $0.25/page (with, up to an additional dollar for certification).  By March 2009, only 2 ½ months after the RTKL’s effective date, at least one school district reported it had gone from collecting $25,000 in that same 2 ½ month period a year earlier to nearly $0 in 2009.  Multiplied out, this would cost that particular school district over $100,000 each year in lost revenue.  In a year where school district budgets are tight, and the boards are limited in the amount they are permitted to tax, this unexpected loss of revenue was especially disheartening.

Attempts to refuse the requests claiming they were not covered by the RTKL were overruled by the Office of Open Records (“OOR”), the state-wide agency charged with implementing that law. 

Recently, however, a judge in Delaware County, Judge Joseph P. Cronin, Jr., focused on an explicit limitation built-into the RTKL to decide that the OOR was wrong.

Signature Solutions, the primary company that has been making these RTKL requests, made a request of Aston Township for “printouts of the current year tax information (including INTERIM tax bills), as well as any other charges for lienable items against the real estate that [the] tax entity collects,” and also asking for “the Homestead Rebate Information where applicable.”  Aston Township claimed that it would have to create a record or compile information from various sources in order to comply. On appeal, the OOR rejected Aston Township’s assertions.

When the matter went before Judge Cronin, he noted that although there were pieces of information on various computer screens that were likely public information, the only way to give all the tax information requested was to compile it.  He pointed out that the RTKL explicitly states that an agency has no duty to make such a compilation.  For that reason, he found that the OOR had made an error of law and reversed the OOR’s findings.

While this could be a very important decision with wide implications, it is important to note a few things.  First, this was a county judge's decision that is informative about how such cases will be decided within that county, but is is not a binding state-wide decision.  Second, since the time Judge Cronin issued his decision in the Aston Township case, the OOR has decided 4 other matters involving Signature Solutions.  Two of those recent matters were in Delaware County.  In each of those cases – including the Delaware County matters – the OOR has granted access, despite Judge Cronin’s ruling.

A link to Judge Cronin's ruling, from the OOR's website, is below.
www.dced.state.pa.us/public/oor/jd/2009-0072_Court_Ruling.pdf

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A recent study looked at students held back a year from kindergarten to third grade and concluded the schools are not properly identifying held back students as in need of special education.  Forbes on line reported on the matter ("Special Education Services Lacking for Kids Who Repeat a Grade").

The study found that 12.9 percent of the students had on IEP during the held-back year and that 18.2 percent received an IEP within five years of being held back.  To me, the study seems possibly flawed.  The study seems to operate with a presumption that a held-back student must be in need of special education, yet the reasons for holding back are many and varied. 

Moreover, the apparent presumption goes completely against the IDEA of 2004's effort to keep students out of special education through the use of Early Intervening Services (different than Early Intervention).

But like so much about special education, statistics reveal little.  These percentages not only do not tell us the reasons for holding back a particular child, the numbers say nothing of what efforts were made for each particular student.  More informative might be the percentage of students evaluated for special education eligibility, the numbers involved in non-special education intervention programs, like Title I or a hybrid classroom that many schools offer for students needing more development time. 

Ultimately, the real question, however, is individualized.  It seems quite a leap to question compliance with child find without a study that investigates a large number of individual cases.

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According to "Workers World" (and I can't get a red star to appear as the "o" in world), Cuba has only 150 to 170 children diagnosed with Autism ("only 150 to 170 Cuban children have been diagnosed with autism, far fewer than the 1 out of 170 reported in the U.S.").  It is unclear to me whether this is because the Cuban health care system has worked a wonder or because authorities fail to diagnose the disorder.

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By Timothy E. Gilsbach

Jeffrey T. Sultanik, chair of the Fox Rothschild Education Law Group, testified before the Pennsylvania State Education Committee regarding teacher strikes and potential solutions to the same.  During his testimony, Mr. Sultanik outlined the various problems that exist in this area under the current statutory provisions and proposed changes to the same suggested by the Pennsylvania School Board Association.  For further details, please read the text of his testimony. 

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Once again, it appears that some racial bigots attempted to cloak themselves and the confederate flag with First Amendment protection.  The courts did not let them.  Click here for the Eighth Circuit case.  Does anyone get the sad irony in all this?

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By Timothy E. Gilsbach

Included within the federal funding provided for in the American Recovery & Reinvestment Act (ARRA) is money for public education.  It is estimated that Pennsylvania will get $2.6 billion of funding for education to be spend on IDEA programs, Title I and Title II programs and on the State Fiscal Stabilization Fund from now until September of 2011.

While the ARRA imposes limits on how the money will be spent, the legislature is responsible for allocating the funds and may do so as it deems fit, subject to the limitations included by the federal government.  It appears that at least several proposals are in the works on that front. 

In addition, Districts who receive the funds should be aware that there are various limits on how the funds can be spent.  Finally, it is important to note that charter schools, in addition to school district, will qualify for some of the funding. 

Additional updates will be posted as the process of allocating the funds moves forward.    

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By Timothy E. Gilsbach

The Pennsylvania House is currently considering House Bill No. 704, that would change the way that state funding for Special Education is provided to local school districts.  Under the current approach, each district is provided funding under the assumption that sixteen percent of its students are eligible for special education.  The proposal currently before the House would change the manner in which this is calculated.

According to the Bill 704's supporters, the Bill, if passed, would base funding upon a five year average of actual student enrollment for special education for each district.  In addition, it would multiply the amount of money provided by the state to districts for special education students to 1.3 times the amount provided to regular education students. 

Bill 704 was only recently presented and, if passed, is likely to change.  Check back for further detailsas it makes its way through the legislative process. 

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