Unlawful treatment of employees with caregiving responsibilities

The U.S. Equal Employment Opportunity Commission (“EEOC”) last year issued an enforcement guidance regarding discriminatory conduct toward employees with caregiving responsibilities. The guidance, which is used by EEOC investigators, provides data regarding workplace demographic changes and scenario examples of conduct that might be discriminatory.

Although the status of being a caregiver (whether to a child, adult, or a disabled relation) alone is not a protected classification, discriminatory conduct toward a caregiver can violate anti-discrimination laws when the conduct is related to the caregiver’s otherwise protected status. For example, refusing to grant tenure to a female professor who tool a leave of absence to care for a child. Like this example, a number of the scenarios and underlying case-law citation involve educational institutions. 

NCLB unfunded mandate lawsuits

The U.S. Sixth Circuit Court of Appeals, by a 2-1 decision, reinstated a lawsuit brought by local school districts and others challenging the No Child Left Behind law as an unfunded federal mandated. NCLB says that nothing in the Act “shall be construed to . . . mandate a State or [local school district] to spend any funds or incur any costs not paid for under this Act.” The schools argued that the federal government should not penalize the schools, such as withholding federal monies, if the schools do not spend local and state monies in order to comply with NCLB.

Congress can pass laws under the authority of the Constitution’s Spending Clause. But when doing so, Congress must also pay for the costs associated with implementing the law. If not, the law must give clear notice to the states of their obligations, such as whether the state and not the federal government must pay. 

The court found that, given NCLB’s unfunded mandate provision, the law is unclear where funding responsibility falls. The U.S. Department of Education put forward two alternative interpretations of the unfunded mandate language (yes, the fact that the same words might have different meanings does not alone prove the schools’ point that the language is not clear). The court also noted that the previous U.S. Secretary of Education’s pronouncements on the issue confirmed the schools’ positions. The court “wondered” how a state official could be on clear notice when the Secretary was assuring the states that the law did not require use of state and local money. 

The court did not decide the ultimate issue, whether NCLB is an unfunded mandate, but did decide the schools have a stated a valid legal claim and sent the matter back to the trial court for further proceedings.

The dissent compared state and local education officials to the denizens of the Land of Oz who simply took the federal money and then complained. The dissent viewed the law as clear and would not have reinstated the case for a full airing. The majority and dissenting opinions are 29 single space pages. Enjoy reading!

Seems to me, however, that the provision is quite clear. States and local school districts are not required to pay the costs of implementing the law.   But then again, maybe I just can’t see well enough.

Annual notice time

Annual notices are one among the many things that school administrators must remember to do at this busy time of year. The National School Boards Association has issued a convenient summary regarding the multiple notices that schools (including higher education institutions in some cases) must provide to parents, students, and the public, complete with handy links to model forms and other information. 

You should note that the model forms links are to federal models and are not specific to a particular state's or district's requirements or needs. A district should consider its unique circumstances for each notice, for example, whether the FERPA notice covers independent contracts, such as private student evaluators, sufficiently to meet anticipated district needs. 

OSEP letters January - March 2007

In Saturday’s Federal Register, the U.S. Department of Education published its quarterly listing of letters and other documents of interest regarding Department interpretations of the Individuals With Disabilities Education Act. The letters are from January through March, 2007. The letters should be available at this part of the Department’s website, although at the moment the site is current only through 2006.

Included in the list is a letter addressing criteria to determine whether a speech and language impairment adversely affects a child's educational performance as well as how a school may respond when speech sessions are missed because of student or provider absence, and an explanation of the requirements governing the continuum of alternative placements. All in one letter. 

Other issues addressed include Medicaid reimbursement; child find for students enrolled in private schools; evaluation for specific learning disability; Part C to Part B transition; and parental consent.

Hopefully, the letters will be available freely on the web soon as there seems a wide-range of interesting issues covered. If anyone has a link to current public domain web documents, please provide it.