STRIP SEARCHES IN SCHOOL FOUND TO BE UNCONSTITUTIONAL, MAYBE.

In Safford Unified School District #1 v. Redding  the Supreme Court was faced with a student who was suspected of having forbidden prescription and over the counter medications with her in the school setting. School officials searched her bag and outer clothing and asked her to remover her clothing down to her bra and underwear. At this point, the school officials asked her move her undergarments to expose her breasts and pelvic area, although she was not asked to remove the same. The Court was asked to determine if such a search was constitutional and the Court found it was not.

The Court begins by acknowledging that the standard required of school official who conduct searches is one of reasonableness that is short of probable cause. The Court found that the evidence established that the search of the student’s backpack and outer clothing was reasonable, but once the search moved past that point it no longer was. The Court was concerned with the fact that given the low level of threat even if the student had these medications and lack of evidence to show it was likely she did, the search was unreasonable and, thus, unconstitutional. While not setting a standard, the Court seems to leave open, at least in part, the option of a strip search under different circumstances involving a different level of evidence and a different threat to the school environment. It appears the Courts will have to iron out when, if ever, such a search might be reasonable.

Finally, the Court notes that several Courts have considered this issue and come to different conclusions. Thus, given the lack of clarity as to the protections afforded to the student, the Court finds that school officials may have reasonably believed they were acting in a manner consistent with protections of the Constitution and, thus, are entitled to qualified immunity for their actions. Thus, school officials who have conducted these types of searches in the past likely will have some level of immunity, but those who engaged in them in the future, given the Court’s guidance, will not.
 

The Court ends its term on Monday and there may be more news to come. 

Continue Reading...

CHANGES IN THE APPLICATION OF ADEA HAS IMPLICATIONS FOR SCHOOL DISTRICTS, BUT THOSE CHANGES MIGHT NOT LAST LONG

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.
 

MUCH ADO ABOUT NOTHING - FOREST GROVE SCHOOL DISTRICT V. T.S. DOES NOT CHANGE THE ANALYSIS ON TUITION REIMBURSEMENT

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.
 

Right to Know Requests and the Disappearing Revenue Stream

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

Study questions whether schools fail to find held-back students eligible for special education

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.

Did you know that . . .

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.