Children and the Law 2016 Juvenile Law & Education Legislative Update 21 st Annual Robert E. Shepherd Juvenile Law and Education Conference May 13, 2016
Children and the Law
2016
Juvenile Law & Education Legislative Update
21st Annual Robert E. Shepherd
Juvenile Law and Education Conference
May 13, 2016
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Federal Education Legislation
Every Student Succeeds Act
(ESSA)
S On December 10, 2015,
President Obama signed the
Every Student Succeeds Act
(ESSA) previously known as
the No Child Left Behind
(NCLB) Act and the
Elementary and Secondary
Education Act (ESEA)
Every Student Succeeds Act
(ESSA)
• The ESSA leaves progress requirements up to the states.
• States must create a school rating system that includes multiple
factors:
• Standardized testing scores for all students and subgroups,
• High school graduation rates,
• Progress for English Language Learners toward English
proficiency,
• Another valid indicator of school quality (i.e. school climate,
safety, college readiness.).
Source: Leadership Conference Education Fund
Every Student Succeeds Act
(ESSA)
• Divisions must set aside federal dollars for parent engagement and
must have written engagement policies.
• There is funding for divisions under Section 4108 of the Act to
implement evidence-based practices to prevention the overuse of
exclusionary discipline.
• Full implementation of the ESSA begins in the 2017-2018 school
year.
Source: Leadership Conference Education Fund
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State Education Legislation
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School Climate
HB 1213
Allows students by way of their defense counsel to introduce IEPs, 504 Plans, Behavior Intervention Plans (BIPs), and Functional Behavioral Assessments (FBAs) as evidence of lack of intent or willfulness if:
(1) the case is in juvenile court,
(2) the offense is a misdemeanor,
(3) 10 days notice is provided to the Commonwealth’s attorney,
(4) copies are authenticated,
(5) Alleged offense occurred during school hours or on school property.
HB 487
Eliminates requirement (Va. Code Section 9.1-110) that school
resource officers whose positions are funded by state grants
“enforce school board rules and codes of conduct.”
Notable Failed Legislation
S HB 1132- Eliminates requirement that school principals report
numerous misdemeanors and non-crimes to law enforcement
from school. Died in House Courts.
S HB 1134- Eliminates disorderly conduct as a possible
delinquency criminal charge for students under 14? If the
conduct occurred on school property or a school bus or school-
sponsored activities. Died on the House Floor.
S SB 458- Prohibits out of school suspension unless all feasible
alternatives to suspension have been considered. Defeated in the
House.
Vetoed Legislation
HB 1234
Authorizes school security officers to carry firearms in performance
of duties if s/he:
(1) Is retired law-enforcement officer
(2) Annually participates in same firearms training and testing, and
meets training and qualification standards to carry firearms, as is
required of an active law-enforcement officer; and
(3) Is granted permission by a local school board
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Curriculum & Instruction
HB 36
Each high school government course
must include program of instruction
on all concepts and information
contained in civics portion of U.S.
Nationalization Test.
HB 357
Requires at least 20 minutes of
physical activity per day or an
average of 100 minutes per week
during regular school year for
students in grades K-5. Starts in
2018-2019.
HB 659
Requires high school family life education
curriculums to incorporate age-appropriate
elements of effective and evidence-based
programs on prevention of dating violence,
domestic abuse, sexual harassment, and
sexual violence.
HB 831
Requires Standards of Learning (SOLs)
established by the Virginia Board of
Education and the program of instruction
for grades K-12 developed and
implemented by each local school board to
include computer science and
computational thinking, including
computer coding.
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SOL Tests
Testing
HB 241/SB 538
Requires the Virginia Board of Education
to consider assessments aligned to the
SOLs that are structured and formatted in
a way that measures content knowledge of
students who are English language learners
and that may be administrated to such
students as an alternative to SOL end-of-
course English reading assessments.
HB 381
Requires the Virginia Board of Education
to prescribe alternative methods of
assessment for children with disabilities
who meet criteria established by the Board
to demonstrate achievement on the SOLs.
HB 436
Requires the Virginia Department of
Education to award recovery credit to any
student in grades 3-8 who fails an SOL
assessment in reading or mathematics,
receives remediation, and subsequently
retakes and passes such assessment.
SB 427
Prohibits Virginia Board of Education from
including in its calculation of the passage rate of
a SOL assessment for purposes of state
accountability any student whose parent has
decided to not have his child take such SOL
assessment, unless such exclusion would result in
the school's not meeting any required state or
federal participation rate.
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Graduation Requirements
HB 895/ SB 336
Removes existing provisions related to
standard and advanced studies diplomas and
standard and verified units of credit. Requires
Virginia Board of Education, in establishing
high school graduation requirements, to
develop and implement, in consultation with
stakeholders, a Profile of a Virginia
Graduate.
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“School choice”
SB 734
Makes several changes to provisions for establishment and operation of public charter schools, including:
S Applicability of various laws, regulations, policies, and procedures to public charter schools,
S Contents of charter applications,
S Procedure for executing charter contracts and the contents of such contracts
Vetoed Legislation
HB 518
Requires the Virginia Board of Education, starting
in 2017-18, to select 12 schools identified for
comprehensive support and improvement and
require such schools to provide all enrolled students
with option to transfer to another public school in
the division in accordance with relevant federal law
and subject to certain conditions and limitations
established by the relevant local school board
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Other Notable Bills
HB 1377
Provides that any time the number of students in a class exceeds statutorily prescribed class size limits, the local school division must notify parents of each student in such class of such fact no later than 10 days after date on which class exceeded limits.
Vetoed Legislation
HB 516
Requires VBOE to establish policy to require each K-12 public school to:
S Notify parent of any student whose teacher reasonably expects to provide instructional material that includes sexually explicit content, as defined by VBOE
S Permit parent of any student to review instructional material that includes sexually explicit content upon request
S Provide, as alternative to instructional material and related academic activities that include sexually explicit content, non-explicit instructional material and related academic activities to any student whose parent so requests
SB 368
Authorizes Virginia Board of Education to review once every two years or once every three years the accreditation status of any school that is not on a triennial review cycle as a result of three consecutive years of full accreditation, provided that any school that receives a multiyear accreditation status other than full accreditation to be covered by a Board-approved multiyear corrective action plan for the duration of the period of accreditation
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Juvenile Justice-
Related Legislation
HB 541
Allows the disclosure of law-enforcement records
concerning a juvenile who is referred to a court
services unit-authorized diversion program. The
bill prohibits further disclosure of such records by
the diversion program or participants in the
program. Law-enforcement officers may prohibit
disclosure to protect a criminal investigation or
intelligence information.
HB 784
Provides that an individual who was adjudicated delinquent
when 14 years of age or older of a delinquent act that would be
a felony if committed by an adult and has completed a term of
enlistment of no less than two years in the Armed Forces of
the United States and, if such person has been discharged from
the Armed Forces of the United States, received an honorable
discharge is not disqualified from obtaining a concealed
handgun permit and may possess or transport any firearm or
ammunition for a firearm, any stun weapon, or any explosive
material.
HB 1149
Provides that any costs paid by a person who petitions for the
expungement of police and court records related to a crime of
which the person was acquitted or the charge of which was
otherwise dismissed shall be refunded to such person if the
petition is granted.
SB 454
Specifies procedures to be used for adults under the age of 21 who are subject to the retained jurisdiction of the juvenile court for criminal offenses committed as juveniles.
The bill requires that a proceeding against such person be commenced by petition and that parents not be notified or involved.
The bill specifies dispositional alternatives and a maximum jail sentence. The bill increases the maximum jail sentence to 12 months for each offense, not to exceed a total of 36 months. Under current law, the maximum jail sentence is 12 months for a single offense or multiple offenses. The bill also states that such persons are entitled to good conduct credit. As introduced, this bill was a recommendation of the Virginia Criminal Justice Conference.
Juvenile Justice Budget Items
Re-investment – Item 415
The Department shall reallocate any savings from the reduced cost of operating
state juvenile correctional centers to support the goals of the transformation plan
including, but not limited to: (a) increasing the number of male and female local
placement options, and post-dispositional treatment programs and services; (b)
ensuring that appropriate placements and treatment programs are available across
all regions of the Commonwealth; and (c) providing appropriate levels of
educational, career readiness, rehabilitative, and mental health services for these
juveniles in state, regional, or local programs and facilities, including but not
limited to, community placement programs, independent living programs, and
group homes.
Juvenile Justice Budget Items
“There is hereby established a task force on juvenile
correctional centers comprised of the Secretary of Public
Safety and Homeland Security, and the Directors of the
Departments of Juvenile Justice, Corrections, and
Behavioral Health and Developmental Services, and the
Office of Children's Services, or their designees.”
Juvenile Justice Budget Items
“The task force shall consider the future capital and
operational requirements for Virginia's juvenile correctional
centers, including the construction of a new facility in the
City of Chesapeake, for which planning was authorized by
the 2016 General Assembly…”
Bond bill provides for funding for a new Chesapeake
Juvenile Correctional Center.
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Child Welfare
SB 776
Allows child receiving kinship care from adult relative to enroll in school division where kinship care provider resides.
Allows local school divisions to require one or both legal parents and kinship care provider to sign affidavits detailing kinship care arrangement, as well as a power of attorney, authorizing adult relative to make educational decisions regarding child.
HB 600
Imposes certain mandates related to the protection and
encouragement of children, including a requirement that certain
information and options be given to a child in connection with foster
care plans, the imposition of certain age-appropriate restrictions, and
requirements of both the courts and the Department of Social
Services regarding foster care plans. The bill adds to the definition of
abused or neglected child any child who has been identified as a
victim of sex trafficking or severe forms of trafficking as defined by
the federal law.
SB 417
Allows designated non-attorney employees of a local department of
social services to (i) initiate a case on behalf of the local department
by appearing before an intake officer and (ii) complete, sign, and file
with the clerk of the juvenile and domestic relations district court, on
forms approved by the Supreme Court of Virginia, petitions for foster
care review, petitions for permanency planning hearings, petitions to
establish paternity, motions to establish or modify support, motions
to amend or review an order, and motions for a rule to show cause.
The bill also directs directors of local departments of social services
to designate non-attorney employees who are authorized to perform
such tasks. This bill is identical to HB 1207.
Fostering Futures Budget
Amendment
Provides for extended foster care services for youth ages
18-21 who were in foster care upon turning 18 or
immediately prior to commitment to DJJ and
transitioning from such commitment.
Also requires DSS to set out requirements for the
program, provide a format of an agreement that would
be signed by the local DSS and the youth, and guidance
setting out the requirements for local implementation
including 6 month review of each case and reasons for
termination of participation by a youth.
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Recent Case Law
RMB v. Bedford County School
Board (W.D. Va. Case) (July 2015)
S 11 year old student long-term suspended for a crumpled leaf believed to be marijuana, but was found not to be when tested.
S RMB alleged that the defendants were in violation of the due process clause of the 14th amendment. The judge denied the defendants motion to dismiss.
S Court found RMB has a due process right to exculpatory evidence, “at least where such evidence is already within the school’s control.”
“[W]here exculpatory evidence exists and is not disclosed, the likelihood that administrators will impose unwarranted suspensions increases dramatically… Moreover, the value of requiring school officials to disclose such evidence is substantial: it brings transparency to the decision-making process and provides the student with a meaningful opportunity to meet the charges against him.”
O.S. v. Fairfax City School Board (Fourth Circuit Court Decision) (Oct. 2015)
S Fourth Circuit reaffirmed Board of Ed. of Hendrick Hudson
Central School Dist. Westchester Cty. v. Rowley standard that a
school division provides FAPE as long as the child receives
“some educational benefit, meaning a benefit that is more
than minimal or trivial, from special instruction and services”
G.G. v. Gloucester County
School Board(Fourth Circuit Case) (April 2016)
The Fourth Circuit reversed the district court and held that the
Department of Education’s interpretation of its own regulation
related “to restroom access by transgender individuals is entitled to
Auer deference and is to be accorded controlling weight…” The
Court reversed the district court’s dismissal of Grimm’s Title IX
claim.
On May 3rd there was a petition for a rehearing En Banc of this case
by the Gloucester County School Board.
Jeree Thomas, Esq.
JustChildren Program
Legal Aid Justice Center
123 East Broad Street
Richmond, VA 23219
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