In a case out of the Northern District of California, Sheldon v. Dhillon (N.D.Cal. Nov. 25, 2009), a court has held that teachers may enjoy First Amendment Protections for things they say in class. In Sheldon, a community college teacher alleged that she was terminated from her employment as a result of an in class discussion regarding heredity and homosexual behavior. While there was significant dispute over what was actually said during the class discussion, the court found that the teacher had First Amendment protections for her speech and cited to several other court decisions that held likewise, including decisions involving both college level and school age level teachers. However, the court cautioned that an employer could discipline an employee, despite any First Amendment concerns, if they could show that the discipline was “reasonably related to legitimate pedagogical concerns.” The lesson seems to be that a teacher’s speech in the classroom is protected, but if teachers start saying things that might be clearly inaccurate or outside the scope of instructional speech, an employer may be able to discipline and that determination may be very fact specific.  


In a new case out of the Middle District of Pennsylvania, Baker v. Southern York Area School District, the District Court applied in a Section 504 FAPE case a strict two year statute of limitations, borrowing the statute of limitations from the IDEA. Looking to a recent case from the Third Circuit, P.P. v. West Chester Area School District, discussed below, the Court simply looked to the filing date of the Complaint and limited the claims to two years prior to that date. However, it appears that there continues to be cases all over the map on how to apply statute of limitations in IDEA cases. It appears that will likely to continue until the issue is decided by the Third Circuit.   


Happy New Year to our readers! As we start 2010, I thought it would be a good opportunity to take a look back at some of the comments we received to some of the 2009 postings. 

In response to my posting in July predicting that now Justice Sotomayor would be friendly to school districts in the area of special education, our own Karl Romberger responded that he disagreed and that she likely would not be that friendly to public schools. Naturally, that elicited a response from Nancy asking which is which. The short answer is that has yet to been seen. As I advised in my original posting, trying to guess how a judge turned justice might rule in a particular area is always risking business. I suppose we will just have to wait and see. 


In response to my July posting on a case out of the Ninth Circuit related to a blog operated by a teacher and the finding that this does not qualify as protected speech, Michael wrote “[i]t is a shame that we are allowing this type of case law to be put in place.” He further notes “[a] blog is essentially a public journal and it is not the government’s place to judge the quality or content of a private writing.” I believe the court’s view was more that employees of public entities do not have the right to say whatever they want in public about their work and then once that speech begins to have an adverse effect on work, the limits of the protection have been breached.   


On my blog posting back in October related to a case out the Ninth Circuit that found that teachers who complain about the treatment of disabled students also qualify for the protections of the ADA and Section 504, even if the teacher is not disabled, Mekei wrote “Very interesting. As a parent I observe that often times, the special ed teachers et al, are considered second class citizens among the other teachers.” 


Finally, in response to my posting in late December on Least Restrictive Environment, Rick responded “[s]chools use LRE as an inexpensive way to ‘dump’ special ed kids in a mainstream classroom and let them try to keep up with the rest of the class.” He further notes “schools are relying on law enforcement personnel to handle simple behavior problems that would be taken care of in a special ed classroom.” Rick’s comments only seem to underscore the ongoing debate on how to apply the LRE concept. 


As always, the blog welcomes your comments, questions and suggestions and, from time to time, we will try to respond to them.