Pennsylvania Department of Education's BEC's on Enrollment and Pregnant Students Serve as a Reminder to School Districts to Review Policies

By  Timothy E. Gilsbach

The Pennsylvania Department of Education has recently issued two new BECs that present a good reminder for school district's to review their Enrollment Policy and Policy on Pregnant Students.  Both BEC's are not in response to any recent changes in the law, but are a good reminder of some issues that need to be considered by school districts in both areas.   

PDE issues a new BEC on Enrollment of Students in January which puts most of the information you need to know about the process of enrolling students in one place.  The new BEC sets out the information that a district may request, as well as what it cannot, when a student enrolls in the district and the process for doing so.  It further notes the need for a separate process for enrolling homeless students, which differs in many ways as to what can be required of other students.  It is important for districts to take a look at their policy on this issue to make sure it complies with the requirements set out in the law, as explained in the BEC.  PDE has requested that districts post their policies and procedures with respect to enrollment on-line no later that July 30, 2009. 

The second is a revised BEC on Pregnant and Parenting Students.  While not adding anything new, the revised BEC does provide two important reminders.  First, that school districts may not exclude pregnant students from the public school nor from extracurricular activities.  Second, and a little less obvious, is what to do with students who need to be absent from school due to pregnancy complications.  This process may be handled in-district if the period of absence is not to exceed three months, but if the absence is to be longer than three months, approval must be obtained from the Department of Education.  In addition, for excusing students for three months or less, school districts must have a policy for how such requests are handled and by whom. 

Both BEC's should have school districts taking a look at the policies implicated, especially if it has been some time since this policy has been revised.  If necessary, districts should revise these policies and/or guidelines.   

IN A NOD TO JUDICIAL ECONOMY, THIRD CIRCUIT RULES THAT COUNTERCLAIMS BY SCHOOL DISTRICTS IN IDEA CASES ARE NOT LIMITED BY THE NINETY DAY TIME-LIMIT UNDER IDEA

By Timothy E. Gilsbach

When a school district goes through an IDEA Due Process Hearing and a mixed result comes back, it is sometimes difficult for the district to determine if an appeal to the Federal District Courts is appropriate or prudent. The Third Circuit Court of Appeals has now made that decision just a little easier in the case of Jonathan H. v. Souderton Area School District

 

In Jonathan H. the Administrative Due Process Hearing ended with a mixed result.  The Parents waited until the 90th day after the issuance of the Hearing Officer's Decision to file their Complaint in the Federal District Court.  Put another way, the Parents waited until the last possible day to file.  The school district filed an Answer to the Complaint asserting a counterclaim in the nature of a challenge to portions of the Hearing Officer’s decision. The District Court found the counterclaim was untimely because it was not brought within 90 days of the Hearing Officer’s Decision and dismissed the same as untimely.

 

The Third Circuit overturned that decision, reasoning that a counterclaim is reactive and not an action brought under the IDEA.  Accordingly, counterclaims in IDEA cases are not limited to the 90 day time-line, but instead are controlled by the time-lines for an Answer under the Federal Rules of Civil Procedure.  In addition, the Court explained that requiring Districts to bring an action in the form of a counterclaim would result in district’s filing as a protective measure, just in case the Parents filed, which would create unnecessary litigation.

 

The case makes things a little easier for school districts that may not wish to appeal mixed Due Process Hearing results, but do not want to waive the right to raise issues on appeal should the Parents choose to appeal.