2013 Legal Update for Central City Staff Karen Haase Harding & Shultz (402) 434-3000 [email protected] H & S School Law @KarenHaase
Mar 07, 2016
2013 Legal Update for Central City Staff
Karen HaaseHarding & Shultz
(402) [email protected]
H & S School Law
@KarenHaase
“That’s a SpEd Issue”
Child Find (referral)Compton Unif. Sch. Dist. v. Addison (9th Cir. 2010) • 9th grade student• “like a stick of furniture”• Colored with crayons, played with
dolls at her desk• Occasionally urinated on self • School respected parent’s desire that
child “not be pushed”
Child Find/ReferralAustin Indep. Sch. Dist. (Tex. 2010) • 3rd grader underachieving• Neurosurgeon called principal• School initiated RTI – told grandma no
verification until completed RTI• Reading consultant’s e-mail• Student verified; grandma sued• Ct. denied relief because student
responded well to interventions
Take Aways re Referral
Take Aways re Referral Don’t close your eyes to need for
verification If a parent asks for eval and you
don’t agree, provide procedural safeguards, etc. RTI does NOT trump IDEA Respond to parent requests for
evaluation immediately
10 Things NOT to Say in an IEP Meeting
All of our students must...
Refusal to Individualize Victoria Ind. Sch. Dist., (Tex. 2010)
• Student with fetal alcohol syndrome• Gen Ed Teacher E-mailed Parent• Parent privately placed
Unified Sch. Dist. No. 259 (Ks. 1999)• Student with dyslexia• Attended magnet school• Teacher told parent she had done every
thing she could for student
Refusal to Individualize Montgomery Co. Bd of Ed., (Ala 2005)
• Student suspended for fighting • Homebound services for 45 days:‾ 3 hours per week‾AlphaSmart 3000‾ Social skills training
Instead Say Things Like:
We believe this will be successful for your childWe have had success with this
approach with similar children This approach meets your child’s
individual needs
That will cost a ton. Our school just can’t afford it.
Cost doesn’t matter Santa Clara (CA) Unif. Sch. Dist,
(OCR 2009) • "back-to-basics" school - lottery• Only 3% sped (15% elsewhere)• No resource staff • OCR: discrimination against disabled
students
Cost doesn’t matterModoc County (CA) Office of Educ.
(OCR 1996)• Parents wanted adaptive PE• School could find cert. • Private consultant too expensive• Waiver for teacher provisionally cert• $40,000.00 per year vs. $1200.00
Instead Say Things Like:
We believe you child can make academic progress without ____We believe the program we’ve
designed for your child will meet your child’s individual need Can you provide us with more
information about this?
I have 19 other students in my classroom to worry about too.
MUST follow IEP IEP is staff’s “safe harbor” District liable for failure to follow:
• Due Process• OCR Complaint• Rule 51 Complaint
Personal Liability• Doe v. Withers,
(WV. 1993)• PPC claim
Instead Say Things Like: I will make sure to implement the
team’s modifications I am committed to Johnny’s
successWorking together we can find
strategies that will be successful
We don’t provide ABA for autistic
kids
Pre-determination
Deal v. Hamilton Co. Bd. Of Ed., (6th Cir. 2004) Lancaster Co. Sch. Dist. 001,
(Nebraska 2011)
Instead Say Things Like:
We use a multi-curricular approachWe don’t use exclusively one
curriculumWhat strategies would you like us
to consider
We only have to provide you a Ford,
not a Cadillac.
Just because it’s true doesn’t mean you say it
Instead Say Things Like:
We believe this will provide Sally with a great deal of education benefitWe are excited to see the progress
Sally will make with the plan
I don’t have time for this, I have to
get to practice
Take Time to Build Relationships
This is the most important IEP meeting in this person’s life Parents’ perception of team is
crucial
Instead Say Things Like:
Delighted that we can take time to visit about SallyHave each educator come
prepared to share an anecdote
That’s not appropriate, but if you want it, we’ll
put it in the IEP.
You say it, you pay it
Letter to Veir (OCR 1993) Must implement every aspect of
IEPMust be able to defend every
aspect of IEP
Instead Say Things Like:
I just cannot support that goal because I don’t think it is appropriate for Sally I understand your desire for ___,
but based on my training I truly believe that is not necessary/will be harmful
That has nothing to do with your child’s disability. We don’t need to address it in
the IEP.
Once a Child is Verified, Address Whole Child
The IEP Team must—In the case of a child whose behavior impedes the child’s learning or that of others, consider the use of positive behavioral interventions and supports, and other strategies, to address that behavior
§300.324(a)(2)(i)
Instead Say Things Like: Need to address Johnny’s
behavior so that we can be sure he’s getting the education he needs and deserves
We need to help Johnny understand that these behaviors are not appropriate
My caseload is full.
Carefully manage caseloads (away from parents)
In re: Student with a Disability (NY SEA 2002)• Student needed phys therapy esy• Teacher told parents school “would try”
In re: Student with a Disability (W. Va. SEA 2002)• Tech teacher RIF’d• Parents sued
IDEA ≠ I Do Enough Already
Instead Say Things Like:
We don’t know exactly who will be providing these services, but that person will be highly qualified
I hope I’m the one who gets to serve Sally, but we have several excellent speech paths.
This won’t take much time, we’ve already got the IEP drafted and all you have to do is sign.
Pre-determination W.A. v. Patterson Joint Univ. Sch.
Dist. (E.D. Cal. 2011)• “Predetermination can be a two
way street.” M.C.E. v. Board of Ed. of Fredrick
Co. (D. Md. 2011)• “open mind, not blank mind”
Mark M. v. Hawaii (Hawaii 2011)• School refused to consider data
Instead Say Things Like:
We have drafted this for your input Are there any changes you would
like us to makeMark document “draft” on every
pageKeep notes of edits
When Parents Walk out
Advise parents that you’ll continue the meeting without them
Indicate when parents left in notes
Finalize IEP (if ready to do so)
IDEA, ADA & Section 504
ADA and Section 504• Rehabilitation Act doesn’t define “major life activity”• Courts have used ADA; congress amended to include- Concentrating- Reading- Learning
Similarities School districts must evaluate and
determine eligibility Both require
• transportation, • accommodation/modification• related services• manifestation determination LRE requirement
Primary Differences Definition of disability is unique to
each statute No funding under 504 504 encompasses
• Students • Employees • Patrons
504 IDEA• Disability substantially
limits one or more major life activities
• LEA sets qualification standards
• Accommodations do not modify curriculum or change standards
• Parents may be on team, MUST have input
• Plan review periodically
• disability interferes with ability to learn
• Rule 51 sets qualification standards
• Accommodations may modify curriculum, instruction, materials and assessments
• Parents MUST be on team
• Plan review annually
When is a district required to make a 504
referral? When district believes that the student
has a physical or mental impairment that substantially limits one or more major life activities AND
Student is in need of either regular ed with supplementary services or special ed. and related services
When is a district required to make a 504
referral? When district believes that the student
has a physical or mental impairment that substantially limits one or more major life activities AND
Student is in need of either regular ed with supplementary services or special ed. and related services
When is a district required to make a 504
referral? When district believes that the student
has a physical or mental impairment that substantially limits one or more major life activities AND
Student is in need of either regular ed with supplementary services or special ed. and related services
When is a district required to make a 504
referral? When district believes that the student
has a physical or mental impairment that substantially limits one or more major life activities AND
Student is in need of either regular ed with supplementary services or special ed. and related services
What constitutes a “substantial limitation?”
504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.”
Phrase is to be defined by local education agency
“substantial limitation?”
Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.”
“Disability” Defined by 504A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.
Changes to ADA
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) The ADA Amendments Act of 2008
increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
Major Changes
First, the definition of “major life activity” has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Changes
First, the definition of “major life activity” has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Changes
Second, interpretation of “substantially limits” has been changed• Must evaluate impairment that is episodic or in
remission in active state• Must not consider mitigating measures
Episodic Impairments Asthma Chron’s Disease IBS Any other disease that can “come and
go” or has good and bad days
No “Mitigating Measures”
A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating
a hypothetical student
Mitigating Measures
Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary
eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive
neurological modifications Reasonable accommodations or other
auxiliary aids or services
Transitory Impairments
A “transitory impairment” is defined as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of
which is less than six months would not constitute a disability.” James A. Garfield (OH) Local School
Dist., 52 IDELR 142 (OCR Feb. 19, 2009).
What if the major life activity impaired is not
learning? The child may still need a 504 plan The focus is on the effect on the student,
not the type of disability “Students may have a disability that in
no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.”
Health Plan ≠ 504 Plan
504/Health PlansTyler (Tx) Indep. Sch. Dist., (OCR 2010) • health care plan for diabetic students• Required to evaluate under 504Dracut (Ma) Pub. Sch., (OCR 2010)• health care plan for peanut allergy• Required to evaluate under 504
504/Health PlansOpelika city (AL) Sch. Dist., (OCR 2010) • health care plan for diabetic students• Required to evaluate under 504Jan. 19 Guidance Document
Health Plan Action Steps List of all kids with health plan List of all kids on medication and
what meds are List of all kids identified by parent
as having health condition Train school nurse!
Transferring Students
Transferring Students
Students may have a 504 in one district and not in another Not like IDEA, where school has to
implement IEP until MDT meets Each district is responsible for
determining for itself what the phrase “substantially limits” means
Letter to McKethan, 23 IDELR 504 (OCR 1994)
Do Not Take Shortcuts!
Can we just provide modifications without creating a 504 plan? No!! Remember: disability education
law is about PROCESS not RESULTS
Temple (TX) ISD, 25 IDELR 232 (OCR 1996)
School Law and TechnologyUpdate
This is not your Grandma’s Inservice
Agenda
Social Networking by teachers Social Networking by students
• Cyberbullying of Staff• Cyberbullying of Students
Social Networking Examples
• Facebook• YouTube• Twitter• Tumblr• Linkedin• Yelp
Teacher Use Causes for Concern
• Drug/Alcohol Use• Sexual Inappropriateness• Inappropriate Communication
with Students• Inappropriate Communication
about Students• Selling School Property
Nebraska Law NEB. REV. STAT. §§79-824, 79-827 Reasons for Termination and/or
Cancellation:• Unprofessional Conduct• Immorality• Other conduct which interferes
substantially with the continued performance of duties
My Suggestions Make a professional page separate
from your personal page Don’t “friend” students or parents
on your personal page Don’t let yourself be depicted
behaving unprofessionally Ask: will this affect my classroom?
Privacy Settings Set your profile as “private” Only let “friends” see pics Require notification before tagging Turn off geo-tags Friend Facebook on Facebook
Social Media and Politics
Cyberbullying of Staff
J.S. v. Blue Mountain Sch. Dist.Middle School Student made fake MySpace profile for principal
• Included photo from school website• Initially public; then limited• Students could only access off campus• Student suspended for 10 days; parents
sued
Layshock v. Hermitage Sch. DistHigh School Student made fake MySpace profile for principal
• Included photo from school website• Other students created similar and
more offensive profiles • Students only accessed off campus• Student suspended for 10 days; placed
in alt. sch, banned from extracurriculars, no commencement
J.S. and Layshock Inconsistent Third Circuit granted en banc
rehearing Oral Argument June 3, 2010 Decision issued June 13, 2011 The Bottom Line?
• Schools lost both cases
J.S. and Layshock Key legal points
• School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal
• School can only punish off-campus speech that is substantially disruptive
What About the Staff?“We recognize that vulgar and offensive speech such as that employed in this case –even made in just – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.”• i.e. “We don’t care”
2013 Legal Update for Central City Staff
Karen HaaseHarding & Shultz
(402) [email protected]
H & S School Law
@KarenHaase