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Second Circuit Holds Endrew F. Did Not Heighten FAPE Standard in Second Circuit; Rejects Parents’ Procedural Claims and Request for Private Transition Program

On March 23, 2018, the U.S. Court of Appeals for the Second Circuit issued an important precedential opinion in Mr. P. & Mrs. P. v. West Hartford Board of Education, 885 F.3d 735, (2d Cir. 2018). In its decision, the Second Circuit held that the U.S. Supreme Court’s recent decision in Endrew F. v. Douglas County School District RE-1, 137 S. Ct. 988 (2017), did not heighten the standard to assess whether a school district offered a student an individualized education program (“IEP”) that provided a free appropriate public education (“FAPE”) in jurisdictions covered by the Second Circuit (Connecticut, New York and Vermont).   The Second Circuit also ruled in favor of the school district, West Hartford, on all other issues, including numerous procedural claims, and rejected the parents’ request for a private transition program similar to the one offered by the district.

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Massachusetts’ Supreme Court Finds Colleges May Face Liability for Student Suicide Under Certain Circumstances

College CampusEarlier this month, Massachusetts’ highest court ruled favorably for Massachusetts Institute of Technology (“MIT”) and three school officials in a wrongful death lawsuit closely watched by educational institutions for close to a decade.  The court found that while a special relationship and attendant duty to take reasonable measures to prevent student suicide may exist between an educational institution and its students, the limited circumstances giving rise to such a relationship and duty were not present in Nguyen v. MIT & others, 479 Mass. 436 (2018).  Accordingly, the court found that MIT was not legally responsible for the student’s death and entitled to judgment as a matter of law.

In brief, Nguyen v. MIT & others arose following the suicide of a graduate student in June 2009. The student had previously sought assistance from university officials to address test anxiety and a need for remedial study skills, and school officials referred the student to MIT’s mental health and counseling office.  At his intake meeting in 2007 and at various other times in the subsequent five months, the student declined mental health services from the university and denied suicidal ideations.  Notably, the student did disclose to school officials a long history with depression and two prior suicide attempts in 2002 and 2005; however, the court noted that he was in treatment with private providers and wished to keep his academic and mental health challenges separate.  The student had no additional interaction with the university’s mental health and counseling office after 2007, but the student did seek assistance from faculty in his program regarding his continued academic challenges.  Although the faculty knew the student was seeking treatment from private mental health professionals, the student did not reveal his history of mental health challenges, suicidal ideation or prior suicide attempts to these individuals.  Instead, the student attributed his academic challenges to a medical condition—insomnia.  Immediately following a tense phone call with a member of his faculty, the student committed suicide.

The estate for the student filed a wrongful death action against MIT alleging that the university was negligent and had caused the student’s death by not exercising reasonable care to prevent the student’s suicide.  In rejecting the estate’s claims, the court recognized that special relationships such as between a school and its students “may impose affirmative, albeit limited, duties in regard to suicide prevention.”  However, the court clarified that the duty to take reasonable measures to prevent a student suicide exists “[w]here a university has actual knowledge of a student’s suicide attempt that occurred while enrolled at the university or recently before matriculation, or of a student’s stated plans or intentions to commit suicide….”  In explaining its conclusion, the court noted that its decision did not create a generalized duty for schools to prevent suicide, but instead, “sought to define the circumstances creating the special relationship and the duty realistically recognizing the scope of the suicide problem on university campuses, the capacities of non-clinicians and the nature of the modern university-student relationship.”  The court went on to make clear that the duty hinges on foreseeability and thus, non-clinicians are not expected to probe or detect suicidal ideation, nor is knowledge of suicidal ideation sufficient to trigger the duty without any stated plan or intention to act on such ideation.  In the event the duty is triggered, the court noted that reasonable measures to satisfy the duty include 1) initiating the institution’s suicide prevention protocol, if one exists; 2) in the absence of such protocol, contacting appropriate officials who may assist in obtaining clinical care from medical professionals and notifying parents where a student refuses such care; or 3) contacting police, or emergency medical personnel in the event of an emergency.

In the present case, the court affirmed the lower court’s decision and found that no special relationship between the student and any of university officials existed to create a duty to take reasonable measures to prevent suicide, because the student did not communicate plans or intentions to commit suicide and the prior suicide attempts occurred well in advance of his matriculation. Moreover, the court noted that there was no duty on the mental health and counseling office to notify the faculty as the student requested his academic and mental health issues be kept separate and assured officials that he was in active treatment with private providers for the latter.  The court also rejected the estate’s claim that the university voluntarily assumed a duty of care by offering mental health services by noting that such liability attaches “only where a failure to exercise such care increases the risk of such harm, or the harm is suffered because of the other’s reliance upon the undertaking.” (emphasis added).  The court found no evidence that the university’s offering of mental health services increased the student’s risk of suicide, especially where he sought services for a brief period nearly two years prior to his suicide.  In fact, the court found it persuasive that the student rejected services and elected to engage nine private mental health professionals.  The court also affirmed the lower court’s denial of punitive and emotional distress damages and a breach of contract claim as well as refused to address whether workers’ compensation barred the lawsuit on a motion for summary judgment.

In addressing the question of liability for student suicide, the court has signaled to colleges and universities located in Massachusetts, and other educational institutions around the nation, that they may have a special relationship to take reasonable care to prevent student suicide.  While the court was careful to note that the duty exists only under limited circumstances, it is incumbent upon school officials to take note of this decision and review and revise their policies and practices where necessary, to ensure that appropriate actions are taken when needed to maintain student health and safety.

The full text of the court’s decision may be found here.

CAS Legal Mailbag Question of the Week – 5/18/2018

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

Recently, we welcomed a new student to our school. He receives special education services, and we are confident that we can meet his educational needs. However, I wish that his mother felt the same way.

When the student was enrolled, we promptly held a PPT meeting to plan our implementation of his IEP and we have no plans at this time to change his program. That didn’t stop his mother from inviting a large group to the PPT meeting, including her best friend, her minister, her son’s outside therapist and his former teacher (whom the mother paid to take a personal day to attend the meeting). In my most charming way, I suggested to the mother that we would not be allowing such a large group to attend the next PPT, explaining that they will not be needed then because we will know her son’s educational needs better at that time. However, I quickly realized that I had inadvertently picked a fight.

“I think you know,” she told me, “that I can bring whomever I want to a PPT meeting, and I don’t appreciate your trying to bully me.” I protested sincerely that I was just trying to be helpful, and she moderated her tone. “OK, you seem reasonable, and maybe I won’t need my minister the next time. But I will require that my son’s paraprofessional attend the next meeting, understood?”

I mumbled something non-confrontational, but I have absolutely no interest in finding coverage for the para to join the crowd at the next PPT meeting. Please tell me I don’t have to.

Thank you,
Keeping It Simple

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Seminar: Hot Topics in Special Education

Please join Shipman & Goodwin school law attorneys for a timely discussion of hot topics and legal developments in special education law. Topics will include:

  • A year after Endrew F.
  • New State Department of Education Guidelines on IEEs and School Observations
  • New legislation regarding physical restraint, seclusion and exclusionary time out
  • New legislation regarding daily classroom safety and removals from classroom
  • IEPs and individualized learning plans for alternative educational opportunities
  • Recent court and hearing officer decisions…and more

This program is intended for: Special Education/Pupil Services Directors, Administrators, and Personnel; Superintendents; Assistant Superintendents, and Executive Directors.

Seating is limited and registration will close when we reach maximum capacity for the event space. Please contact us in advance if you are registering more than 4 attendees from your district.

We look forward to seeing you at this complimentary seminar for our public and charter school clients.

June 12, 2018 – Stamford Office – REGISTER NOW!

WHEN: June 12, 2018, 9:30 AM – 12:00 PM EDT
9:30 – 10:00 AM, Registration/Refreshments
10:00 AM – 12:00 Noon, Seminar

SPEAKERS: Attorneys Andreana R. Bellach and Melika S. Forbes

Shipman & Goodwin Stamford Office
300 Atlantic Street
Stamford, CT 06901
Get Directions >>

June 14, 2018 – Hartford Office – REGISTER NOW!

WHEN: June 14, 2018,  8:00 AM – 10:30 AM EDT
8:00 – 8:30 AM, Registration/Breakfast
8:30 AM – 10:30 AM, Seminar

SPEAKERS: Attorneys Rebecca Rudnick Santiago and Peter J. Maher

Shipman & Goodwin Hartford Office
Courtroom – 20th Floor
One Constitution Plaza
Hartford, CT 06103
Get Directions >>

 

Peter Maher Presents at Lehigh University’s 46th Special Education Law Conference

On May 11, 2018, Peter Maher was a co-presenter during Lehigh University’s 46th Special Education Law Conference. The conference is a one-day program that provides a year-in-review case law keynote and various break-out sessions. The topics for this year’s sessions included settlement strategies; school anxiety; school-mental health inter-agency; behavior intervention; vocational needs; child find issues; transgender students; the bullying-disability connection; sexual misconduct; post Endrew F.; charter schools; attendance issues; transition to post-secondary education; and legal ethics.

For more information on the conference, please visit the event website.

The GDPR is Coming: Keep Calm and Plan

On May 25, 2018, the European Union’s (“EU”) General Data Privacy Regulation (“GDPR”) takes effect, which purports to regulate the control and processing of the data of EU residents, wherever that data is stored. However, the broad territorial scope of the GDPR has not been tested in any court or legal proceeding, leaving many organizations, including United States-based independent schools, scratching their heads over compliance with the law.

What is the GDPR?

For those unfamiliar with the dreaded acronym, the GDPR is a law passed by the EU Parliament in 2016 that imposes a uniform set of data privacy regulations throughout the EU based on several key general privacy principles: transparency and consent, right of access to personal data, right to rectification and erasure (also known as the right to be forgotten), data portability, and the right to object to automated individual decision-making.

Independent schools who actively collect data from EU residents (such as applicants or alumni) are likely to be classified as “data controllers” as that term is defined in the GDPR. Generally, controllers are responsible for: implementing technical safeguards and organizational measures to protect data, implementing “protection by design and default” measures, and ensuring that data processors (such as software vendors) handle data responsibly and in accordance with the schools’ directives. Penalties for failing to comply with the GDPR can be quite steep, ranging up to 20 million Euros, or 4% of an organization’s global annual revenue, whichever is greater.

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SEE YOU IN COURT! – May 2018

Bob Bombast, veteran member of the Nutmeg Board of Education, was surprised to see a work team and a backhoe on the grounds of Median Middle School. So surprised in fact that he parked his car and walked over to find out what was going on. The workers explained that they were converting the field next to the school to a baseball diamond, and they sought to reassure Bob that they would be done this month.

Bob was not reassured, because he did not remember hearing about any such plans from Mr. Superintendent. Bob then checked with Mr. Superintendent, who told Bob that he was unaware of the project and vowed to get to the bottom of this mystery.

It didn’t take him long. When Mr. Superintendent arrived on the site, he found out that the workers were from the Town of Nutmeg, and they explained that they were working at the direction of Mayor Megillah. Mr. Superintendent drove right over to Nutmeg City Hall and interrupted a meeting the Mayor was having with his staff. Mayor Megillah explained that the Parks & Recreation Department had been complaining about lack of space for all their Town leagues, and that the Nutmeg Town Council had voted at its last meeting to install the baseball diamond in question.

Mr. Superintendent was aghast at the presumption of Mayor Megillah and the Town Council. He chided the Mayor for overstepping and demanded that work on the baseball diamond stop immediately until the Nutmeg Board of Education can consider the matter. Mayor Megillah surprised Mr. Superintendent by pushing back hard. Mayor Megillah explained that the Town owns the property and can do what it wants, and he then abruptly ended the conversation and returned to his staff meeting.

Mr. Superintendent immediately called Bob Bombast, and together they got Mrs. Chairperson on the line to discuss this latest crisis. The three of them quickly worked themselves into a tizzy of indignation, and Mrs. Chairperson agreed to call an emergency meeting of the Nutmeg Board of Education for that very evening.

Surprisingly, all nine members of the Nutmeg Board of Education were available for the meeting, and when Mrs. Chairperson and Mr. Superintendent explained what was happening, the Board members discussed the need for immediate action. Mal Content expressed concern that antagonizing the Town on this point could be a political problem for the Board at budget time. After talking it through at length, however, all the Board members agreed that the Board had to assert its jurisdiction over the property. The Board voted unanimously to direct Mr. Superintendent to make a formal demand on Mayor Megillah that the Town stop further construction and that the Town restore the area on the school field to its prior condition.

Mr. Superintendent delivered that demand personally to Mayor Megillah the next morning. Mayor Megillah, however, was unfazed by the Board’s action. “You can tell the Board to butt out. This is a Town concern, and we will continue construction of this much-needed baseball diamond, whether you like it or not!”

Mr. Superintendent told the Mayor that he was simply wrong and that the Board is prepared to take legal action if necessary, but Mayor Megillah simply snorted in response with “Then, I guess that we will see you in court!”

What are the chances for the Nutmeg Board of Education in court?

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CAS Legal Mailbag Question of the Week – 4/27/2018

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.

Dear Legal Mailbag:

I have long suspected that one of the students at my high school is a dealer and I would love to prove it. Yesterday, another student told me confidentially that he saw the student rolling a joint in the bathroom and I called the suspected student down to the office for a little questioning.

I started the conversation by asking him if he had anything illegal in his possession and he denied it in a particularly unconvincing way. So I told him to empty his pockets and, suddenly, he “remembered” that a friend asked him to hold a couple of joints, which he then produced.

Things were going so well that I was sorely tempted to ask him to hand over his cell phone so that I could check it for text messages about drug deals. But I chickened out and simply suspended him for possession of marijuana on school property. Now I am kicking myself, thinking that I blew an opportunity to put this miscreant away for good. Could I have searched the cell phone?

Thank you,
Having Second Thoughts

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SDE Issues New Guidelines for IEEs and In-School Observations

On March 27, 2018, the Connecticut State Department of Education (SDE) issued the long-awaited and much-anticipated Guidelines Regarding Independent Educational Evaluations at Public Expense and In-School Observations. These Guidelines are the result of months of study, review and participation by a Task Force and then an Advisory Work Group, including consultants within the SDE, parent advocates, school district personnel, educators, advisors and others. The Guidelines clarify the existing obligations of school districts with respect to independent educational evaluations (IEEs) pursuant to the Individuals with Disabilities Education Act (IDEA).

The Guidelines replace the SDE’s guidance memorandum titled Guidance Regarding Independent Educational Evaluations issued on June 9, 2015 and the memorandum titled Guidance Regarding Independent Educational Evaluations dated May 3, 2017. The Guidelines are the SDE’s interpretation of the applicable legal requirements for IEEs, including guidance letters from the U.S. Department of Education’s Office for Special Education Program (OSEP), and are not a replacement of the IDEA and its implementing regulations. Importantly, the new Guidelines seek to track the federal regulatory requirements and administrative guidance for IEEs.

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