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Superior Court Judge Rules Connecticut Education System Unconstitutional

On Wednesday, September 7, 2016, Hartford Superior Court Judge Thomas G. Moukawsher ruled in the case of Connecticut Coalition for Justice in Education Funding v. Rell, x07 HHD 14-5037565-S, that the current Connecticut education system violates the state constitution.  This ruling is the latest in a case first filed on December 12, 2005.

In 2007, the trial court dismissed the plaintiffs’ claims and held that the Connecticut Constitution did not contain a right to “suitable educational opportunities.”  In 2010, however, the Connecticut Supreme Court reversed that 2007 decision and remanded the case back to Superior Court for trial, although the Supreme Court was split and there was no majority opinion.

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Last Chance to Register for this Complimentary Webinar: Board Member Boot Camp – A Guide to Effective Board Meetings

Businesspeople at boardroom tableIt’s not too late to register for this complimentary webinar for Board of Education members.

The Board of Education meeting is perhaps the single most important aspect of the work of a Board, and certainly its most visible one.  A shared understanding by members of what an effective Board meeting looks like, and how best to achieve it, is key to making decisions that will improve the school district’s student achievement.

Join Shipman & Goodwin School Law attorney Gary R. Brochu, where he will discuss the various aspects of Board of Education meetings, and offer best practices and guidance as to how to conduct an effective meeting.

Topics will include:

  • Freedom of Information
  • Meeting Best Practices
  • Meeting Agendas
  • Public Comments

Who should attend: Board of Education Members and Chairs.

When:  September 27, 2016 from 12:00 PM – 1:00 PM EST
Where:  Webinar

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CAS Legal Mailbag Question of the Week – 9/23/16

Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

legal_mailbag_transparentRecently, a parent called to complain about a teacher’s being “spaced-out” when she talked to him about her child. This parent is quick to draw judgments about people and even quicker to share them. I figured “better safe than sorry,” so I asked IT to give me access to his district email account so that I could check him out. I spent the weekend going through his email, and it was fascinating to read about some dysfunctional family dynamics, his planning a trip to the Galapagos Islands, and even some good recipes for BBQ. I did not find anything to suggest that he has any substance abuse problems. I was miffed, however, when I read several of his emails to colleagues that referred to me as “the Idiot.” Given that we have an acceptable use policy that puts employees on notice that they have no privacy expectations in using the district email, I presume that I have every right to confront him about these insulting emails. Do you think that his disrespectful emails warrant a suspension or just a letter of reprimand?

Signed,
Stung

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Second Circuit Holds IDEA Eligibility Does Not Automatically Result in Section 504/ADA Eligibility; Practical Implications Are Not That Simple

On September 16, 2016, the U.S. Court of Appeals for the Second Circuit held in a precedential decision that, as a technical legal matter, a student’s eligibility for special education and related services under the Individuals with Disabilities Education Act (IDEA) does not automatically result in that student’s eligibility as an individual with a disability under Section 504 of the Rehabilitation Act of 1973 (Section 504) or the Americans with Disabilities Act (ADA).  B.C. v. Mount Vernon Sch. Dist., — F. 3d —, No. 14-3603, 2016 WL 4926147 (2d Cir. Sept. 16, 2016).

In Mount Vernon, parents of two students who received special education under the IDEA brought a lawsuit against the school district alleging that the district’s policy of scheduling remedial academic classes (which did not provide academic credit) during the school day had an adverse or disproportionate disparate impact on students with disabilities and resulted in those students accumulating fewer credits.  The only evidence the parents provided in support of their claims, however, was statistical data showing that these classes contained a higher percentage of students identified as students with disabilities under the IDEA than students not identified under the IDEA.

The Second Circuit held that the parents failed to establish their claim “[b]ecause, as a matter of law, an IDEA disability does not necessarily constitute a disability under the ADA or Section 504.”  Id.  The court explained that Section 504 and the ADA define “disability” as a physical or mental impairment that substantially limits one or more major life activities, whereas, under the IDEA a student is a “child with a disability” if he or she has one of the IDEA’s enumerated disability categories and, as a result, requires special education and related services.  Therefore, according to the court, “a child might need special education and related services by reason of an impairment even if that impairment does not substantially limit a major life activity.”  Id. (internal quotation marks and citations omitted).  The court observed that, while “many, if not most” students covered by the IDEA may also have disabilities as defined by Section 504 and the ADA, such a determination is not automatic.

As a result of the court’s ruling, a student bringing Section 504 or ADA claims in federal courts within the Second Circuit’s jurisdiction, including Connecticut, will have to offer additional evidence that the student qualifies under Section 504/ADA beyond his or her eligibility under the IDEA.

This judicial decision, however, likely will not impact how schools implement Section 504 and the ADA.  First, the evaluative information used by planning and placement teams to conclude that a student is eligible under the IDEA generally will be sufficient to demonstrate that the student also has an impairment that substantially limits one or more major life activities.  Indeed, the Office for Civil Rights within the U.S. Department of Education previously has observed that it “cannot conceive of any situation in which [students eligible under the IDEA] would not also be entitled to the protection extended by Section 504.”  Letter to Veir, 20 IDELR 864, 867 (OCR 1993).  Second, if a student is eligible under the IDEA, public school districts must adhere to the IDEA’s more robust procedural requirements and following such IDEA procedures is a permissible method of complying with any overlapping procedural requirements under Section 504.  Nevertheless, this case is a reminder that there are few, if any, automatic or bright line rules in the laws concerning students with disabilities.

Teacher Retirement Board Issues Revised Guidelines for the Reemployment of Retired Teachers

Teacher SupportOn June 29, 2016, the Teacher Retirement Board (“TRB”) issued new guidance concerning the reemployment of retired teachers. One of the new and significant guidelines for post-retirement employment concerned the application of federal rules to qualified pension plans. Specifically, TRB issued guidelines to define and avoid “sham” retirements. Beginning in July 2016, TRB required teachers who began receiving their TRB pension payments before normal TRB retirement (20 or more years of service and age 60 or 35 years of service) have at least a six month break in service before going back to work as a teacher (this rule does not apply to teachers who were age 62 or more at the time of their retirement). Failure to do so will mean that the teacher will have his/her pension suspended and any duplicate compensation will be reimbursed to TRB.

The guidelines issued in June had specifically noted that the above-referenced six month waiting period was applicable when a teacher was seeking to return to work for the same school district from which he/she had been working for at the time of his/her retirement. With the reissuance of revised guidelines from TRB in August, TRB’s guidance concerning the reemployment of retired teachers has changed. The revised TRB guidance now requires a six month break in service before a retired teacher who has retired before normal retirement can be reemployed by any Connecticut school district.

Before a retired teacher who is under the age of 62 and did not achieve a normal retirement can be reemployed, the retired teacher must meet all of the following three conditions: (1) a six month break in service; (2) there must not be a prearranged understanding or agreement to return to work for the employer-school district; and (3) the superintendent of the employing school district must attest to the absence of any prearranged understanding or agreement between the school district and the retired teacher.

For the reemployment of a retired superintendent the third requirement is modified so that an officer of the board of education must provide TRB with a certification of the absence of a prearranged understanding or agreement to return to work between the employing board and the retired superintendent.

Finally, TRB has decided that this guidance is to be applied retroactively. In other words, if a teacher retired before normal retirement and was reemployed by a school district without a six month break in service two years ago, then there must be a six month break in service now, without a prior arrangement to reemploy the retired teacher in six months. Given that many school districts utilize retired teachers, either in a shortage area or under the 45% rule, these school districts must determine if any of these reemployed retired teachers are now subject to the TRB requirement of a six month break in service, regardless of when and where the retired teacher was previously employed.

Shipman & Goodwin LLP Ranked 10th for Women Lawyers at Large Firms

Silhouette Woman The Way Forward Directional Sign ConceptShipman & Goodwin secured the #10 spot for women lawyers at the nation’s largest firms, according to a recent survey by the National Law Journal (NLJ). Based on The NLJ 350, its annual law firm survey classifying the largest legal players in the United States, NLJ also highlighted its Women in Law rankings, which were determined by the percentage of women lawyers and the percentage of women partners at these firms. The firm has a long-standing commitment to diversity and is proud of its success in hiring, promoting and retaining female attorneys.

Food and Nutrition Service of the USDA Releases New Rule Regarding School Wellness Policies

Group of high school girls eating healthy lunch togetherThe Food and Nutrition Service of the United States Department of Agriculture has released its final rule regarding Local School Wellness Policies under the Healthy, Hunger-Free Kids Act of 2010.  All local school wellness policies must be compliant with the new rule by June 30, 2017.  The new rule requires local educational agencies that participate in the National School Lunch and School Breakfast Programs to update their wellness policies in line with the content requirements outlined in the rule.  The new rule also highlights the requirement for local educational agencies to collaborate with community stakeholders in making the required updates to their wellness policies and in implementing the policies.  The new rule further provides that local educational agencies must assess the effectiveness of school wellness policies on at least a triennial basis.  Finally, under the new rule, each state educational agency will be responsible for evaluating the wellness policies of local educational agencies under its jurisdiction.

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Peter Maher Quoted in Special Ed Connection Article, “‘How I Advise My Clients’: What parameters can districts set regarding IEEs?”

Peter Maher has been quoted in an article on limits school districts can set on publicly funded IEEs and steps to take when refusing to provide an IEE at public expense. This article originally appeared in SpecialEdConnection®.

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‘How I Advise My Clients’: What parameters can districts set regarding IEEs?

maherslblogAn independent educational evaluation is an assessment conducted by a qualified examiner who is not employed by the school district responsible for the child’s education. 34 CFR 300.502 (a)(3)(i). Parents always have the right to obtain an IEE at their own expense. In addition, the Part B regulations allow for publicly funded IEEs in some circumstances.

So what limits can school districts set on publicly funded IEEs parents seek? What steps must districts take if they refuse to provide an IEE at public expense?

Special Ed Connection® posed these and other questions to two experts in the field. Their responses are included below, edited for length and clarity.

Peter Maher, school attorney, Shipman & Goodwin LLP:

School districts should establish written evaluation criteria applicable for IEEs. These criteria generally must be the same as the criteria the district uses when it evaluates students. In developing these criteria, consider the following:

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Register Now for New Themes in ADA Compliance Forum, October 7, 2016

A Conversation with the Justice Department about ADA Enforcement Priorities for Higher Education Institutions

Shipman & Goodwin LLP is pleased to offer this complimentary forum for higher education professionals to engage with government attorneys to discuss emerging trends and enforcement actions nationally.

Assistant United States Attorneys Vanessa Roberts Avery and Ndidi Moses will join Attorneys Leander A. Dolphin and Linda L. Yoder, who represent public and private colleges and universities, to discuss recent DOJ enforcement actions, as well as the investigation and resolution process, emerging trends and common pitfalls.

To address your particular areas of interest and concern, panelists will solicit questions both before and during this discussion. Submit your questions/comments before the forum here.

The general session will be followed by two simultaneous breakout sessions focused on ADA accessibility issues for students and faculty.

Breakout Sessions (please register for the session of your choosing):

The ADA at Colleges and Universities: Emerging Issues Relating to Accommodations of Students with Disabilities 
In this interactive session, Attorneys Leander Dolphin and Melika Forbes will address best practices regarding accessibility and accommodation issues of students in the higher education context.

The ADA at Colleges and Universities: Addressing Faculty ADA Issues
In this interactive session, Attorneys Linda L. Yoder and Peter Murphy will focus on both accessibility and requests for accommodation by faculty as well as faculty involvement with student accommodation requests.

For detailed event information, parking and agenda, click here.

Who should attend: Presidents, General Counsels, Human Resources Personnel, ADA Coordinators, Disability Resources/Services Directors, Deans of Faculty, Provosts, Ombuds, Deans of Student Life, Deans of Student Activities, and Diversity Officers/Directors.

This forum is complimentary, and we invite you to bring a guest or colleague. Please register by September 30th. If you invite a guest, please be sure to register your guest separately.

Lunch will be served and there will be an opportunity for discussion with forum participants during the lunch break.

When: October 7, 2016  8:00 AM – 1:00 PM EDT

Where:  University of Hartford Gray Conference Center, Harry Jack Gray Building 200 Bloomfield Avenue, Hartford, CT

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CAS Legal Mailbag Question of the Week – 9/9/16

Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.

legal_mailbag_transparentDear Legal Mailbag:

The beginning of the year is an exciting time, but there are always some students who don’t show up for the party. To be sure, we try to track them down by attempting to contact their parents with letters, documented phone call attempts and even emails. But often we come up empty. I think I heard somewhere that we can just remove students who are non-attendees during the first ten days of school from our school rosters? That would make life a lot easier. Is that OK?

I figure this is a timely question as most Connecticut schools are approaching this 10-day benchmark.

Signed,
Keeping It Simple

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