Commonwealth Court finds Office of Dispute Resolution Manual is Not Binding

The Pennsylvania Commonwealth Court has held that the Office of Dispute Resolution Manual does not have the force of law.  In the case of Bethlehem Area School District v. Diane Zhou  the Commonwealth Court denied the request of a parent of a gifted student to have the transcript of a Gifted Due Process Hearing translated into Mandarin Chinese.  In reaching this conclusion, the Commonwealth Court found that the reliance upon ODR's Manual to support a right to the requested translation was insufficient, as the same does not have the force of law.  The Court found that only the properly adopted regulations had the force of law.  While the regulations at issue have since changed, and now require the provision of a transcript to the parents in gifted due process hearings, as has long been the case in special education matter, it is not clear what effect the ruling could have on other parts of the ODR Manual which are not contained in the more formal regulations regarding these cases. 

Commonwealth Court Halts Release of Home Addresses of Public School Employees

On July 28, 2009, the Pennsylvania Commonwealth Court entered the dispute over whether the home addresses of public school employees are a matter of public record under the Right to Know Law.  In the past, the Pennsylvania Office of Open Records has taken the view that the addresses are not protected from release under the exceptions included in the Right to Know Law, as the only exception provided for home addresses is for law enforcement officers and judges.  The Commonwealth Court has now stayed the release of any addresses of public school employees and enjoined the Office of Open Records from Ordering the release of such addresses. 

For now, Districts currently facing a request for home addresses may safely refuse to provide them.  The Commonwealth Court has indicated that an opinion will follow and further details will be post on the blog when that occurs. 

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A JUSTICE SOTOMAYOR COULD BE A FRIEND TO SCHOOL DISTRICTS IN THE AREA OF SPECIAL EDUCATION

As the Senate determines whether Judge Sotomayor will become Justice Sotomayor, one issue that is likely to receive very little attention is her views on interpreting the Individuals with Disabilities Education Act (“IDEA”), a statute which provides various rights to students in public schools who have disabilities as well as to their parents. While there is always a risk in trying to guess what a judge will do when he or she becomes a justice and often times the facts of a particular case drive the result of their decisions, it appears, based on the limited information available, that a Justice Sotomayor would be a friend to school districts in this area. A few examples are helpful.

 

First, in the area of attorney’s fees, Judge Sotomayor has taken a strict interpretation of the portion of the statute which allows parents, when they are successful at a hearing to determine what special educations services are appropriate for a student, to obtain payment for counsel fees by the school district. In several opinions, Judge Sotomayor has taken the view that parents are only entitled to obtain attorney’s fees when that right is clearly established under the statute and refused to allow attorney’s fees in cases where the right was questionable or non-existent under the statute. Such a view is clearly one that is friendly to school districts and in many respects encourages parents and their counsel to be more reasonable in their efforts to resolve such cases prior to hearing.

 

Second, in reviewing the decisions of hearing officers and lower courts, in several cases she has deferred to state level hearing officers who have found in favor of school districts, especially in the area of tuition reimbursement. Judge Sotomayor has joined in several opinions that, when appropriate, overturn decisions of district court judges who have attempted to substitute their own opinion for that of the state level hearing officer to award parents tuition reimbursement. Such a role of ensuring that state level hearing officers decisions on the complex decision of tuition reimbursement, which many times results in the denial of the same to parents, is view that is helpful to school districts by limiting liability for tuition reimbursement only to those cases where it is clearly appropriate.

 

Finally, in the area of applying the statue of limitations under the IDEA, an issue which many courts have struggled to find a consensus, Judge Sotomayor has joined in at least one opinion that takes the stricter view on the statute of limitations finding that two years means two years. While other courts have found ways to try to expand the statute of limitations, a view that leaves open the possibility of more liability to school district, Judge Sotomayor joined in an opinion that would appear to limit potential liability to district.

 

Thus, although it is possible that a Justice Sotomayor would take a different view on cases as a Justice of the Supreme Court, based upon her record as an Appeal Court Judge, she may be a Justice that schools districts find to be district friendly in the area of special education. 

 

This blog posting appeared in The Legal Intelligencer on Monday, July 20, 2009. 
  
  

 

Teacher's Blog May Not Be Free Speech

In a case out of the Ninth Circuit Court of Appeals, Richerson v. Beckon it was found that a teacher's blog entries were not protected speech and that the employee could be demoted for the same. In Richerson, a teacher was assigned to a position in which she served a mentor to others and was to provide less experienced teachers "honest, critical, and private feedback."  The teacher maintained a blog in which she made "several highly personal and vituperative" comments about her employers, union representatives, and fellow teachers.  While her blog did not identify these people, it was clear who they were from the description given in the blog.  The teacher was demoted and filed suit claiming violation of her right to free speech. 

The Court explained in the unpublished opinion that a public employee's speech, in order to be protected, must touch on a matter of public concern.  The Court further explained that the speech is not protected when (1) it disrupts co-worker relationships, (2) interfered with the speakers performance of her or his duties, and (3) eroded a close working relationship based upon personal loyalty and confidentiality.  Thus, the Court found this blog was not protected speech.

The case raises some interesting questions about other electronic postings, such as a Facebook or Twitter and whether those types of communications may also subject, under certain conditions, an employee to discipline. 

SUPREME COURT CLOSES OUT ITS TERM BY REFUSING TO HEAR TWO SCHOOL RELATED CASES

The United States Supreme Court finished out its term last week by refusing to hear two cases related to schools.

First, in the case of Truth v. Kent School District the Court was asked to rule on whether a school district could refuse to recognize a Christian club named "Truth."  The school refused to recognize the group on the basis that its name might be a concern and that members were required to sign a statement of Christian faith, which violated the district's non-discrimination policy.  The club filed suit claiming the action violated the Equal Access Act and the First Amendment, but two lower courts disagreed.  The Supreme Court declined to hear the appeal, which means the lower court decisions stand. 

Next, in the case of Winkelman v. Parma City School District, the Court refused to hear an appeal of parents who were seek tuition reimbursement and raised issues of whether or not a court may look beyond the four corners of an IEP to determine if it is appropriate.  The trial court looked beyond the IEP in its decision and denied tuition reimbursement, with the decision being upheld by the Sixth Circuit Court of Appeals.  This is the second time the Winkelman's attempted to go to the Supreme Court, the last time they were successful and the Court found that they could proceed without counsel and represent the student in Court.  This subsequent appeal was on the merits of the case.