Recent headlines make clear that sexual harassment is a serious problem in our society. It has also been a focus of attention on school campuses. Since the adoption of Title IX, colleges and universities, as well as other educational institutions, have taken steps to address complaints by students that they have been harassed or sexually assaulted; however, there is increasing push back regarding the procedures by which academic institutions adjudicate allegations of sexual misconduct, as well as on the training for those employees responsible for responding to allegations of inappropriate student conduct.
Dear Legal Mailbag:
As the principal of a middle school, life is always interesting and I have learned a lot. However, last week something came up that I have heard about but never had to address. One of the students met with me privately, and he told me that he is transgender and in the process of transitioning to female. I asked whether his parents were aware of his gender status, and he assured me that they were. I suggested that we all meet together, to which he readily agreed, and we set up a meeting for the next day.
Let me pause here. Now that the student has expressed a gender preference, I don’t know what pronoun to use. I will go out on a limb and start saying “she.” Anyway, the student and her mother came to see me yesterday. They explained that the student has long identified as female, but has only recently decided to live her life as such. They asked if I would change the school records to her new chosen female name, and further if I would instruct all staff members to treat her as female for all purposes, including access to bathrooms and locker rooms. I was as supportive as I could be, given my confusion, and I told them that I would consider their requests and be back to them.
I try to keep up, and I know that there has been litigation over such requests. This seems to be a situation, however, in which I can be sued no matter what I do. What does Legal Mailbag suggest that I do?
On November 29, 2017, the House of Representatives Energy and Commerce subcommittee on Digital Commerce and Consumer Protection held a hearing on the use of computer algorithms and their impact on consumers.
This was the latest in a series of recent efforts by a variety of organizations to explore and understand the ways in which computer algorithms are driving businesses’ and public agencies’ decision-making, and shaping the digital content we see online.
In its simplest form, an algorithm is a mathematical formula, a series of steps for performing mathematical equations. The witness testimony and questions from the members of the Subcommittee highlighted a number of issues that businesses and government regulators are facing.
The requirements of the European Union (“EU”) General Data Protection Regulation (“GDPR”) come into effect on May 25, 2018. These regulations promise to usher in sweeping changes to the way institutions, companies, and other organizations collect and handle the personal data of EU residents.
The GDPR is a holistic set of data privacy requirements that address the entire life cycle of collection, use, and disclosure of the “personal data” of EU residents. While we anticipate jurisdictional challenges that may someday limit the GDPR’s reach outside of the EU, the law as currently drafted purports to affect institutions of higher education, companies, and other organizations, such as boarding schools, worldwide. This means that the GDPR will affect not only institutions that do business with or operate inside of the EU, but will also affect institutions in the United States that processes the personal data of persons residing in the EU.
On December 4, 2017 the U.S. Supreme Court issued two orders staying preliminary injunctions against President Trump’s latest travel ban, allowing that ban to take effect while ongoing legal challenges to it are being judicially considered.
The Supreme Court’s December 4th ruling means that the administration may fully implement President Trump’s September 24, 2017 Presidential Proclamation. That proclamation imposes country-specific travel restrictions on eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. In addition, nationals of Iraq will be subject to extra screening measures. For more information regarding the country-specific travel restrictions for each of these countries, please see our previous post entitled Presidential Proclamation Outlines Rules for New Travel Ban.
In back-to-back rulings in October, U.S. District Judge Derrick Watson of Hawaii and U.S. District Judge Theodore Chuang of Maryland barred the implementation of most of Trump’s third travel ban including its imposition of any travel restrictions on foreign nationals from Chad, Iran, Libya, Somalia, Syria and Yemen. However, the Ninth Circuit later narrowed Judge Watson’s broad restriction on implementation of the ban by allowing foreign nationals from these six countries to travel to the U.S only if they demonstrate “a bona fide relationship” with a U.S. person or entity.
The Supreme Court’s December 4th ruling will allow the travel ban to take effect, at least while the dispute is being decided by the Ninth and Fourth Circuits of the U.S. Courts of Appeals. The Supreme Court indicated that its December 4th ruling would expire if it denied any potential appeals that might be filed to challenge the Ninth and Fourth Circuits’ future rulings on the ban. However, if the Supreme Court grants such appeals, its December 4th ruling allowing the ban to take effect will remain in place until the Supreme Court renders its decision on the legality of the ban.
All sides in the dispute are in full agreement that a speedy resolution of the legality of the current revision of the travel ban is needed for the sake of universities, businesses and individuals affected by the September 24th proclamation. Oral arguments in the Ninth Circuit case are scheduled for December 6th, while arguments at the Fourth Circuit are scheduled for December 8th.
We will continue to apprise you of developments as they occur.
Join Shipman & Goodwin tax attorneys for this complimentary CLE webinar focusing on current developments in Connecticut tax law. Presenters will discuss recent tax developments impacting businesses, organizations and individuals, and review the most up-to-date information on tax legislation enacted during the 2017 General Assembly session, pronouncements issued by the Connecticut Department of Revenue Services, and recent court decisions.
When: December 11, 2017, 12:00 PM – 1:15 PM EDT
Neither the Connecticut Judicial Branch nor the Commission on Minimum Continuing Legal Education approves or accredits CLE providers or activities. It is the opinion of this provider that this activity qualifies for up to 1.25 hours toward your annual CLE requirement in Connecticut, including zero hour(s) of ethics/professionalism.
This CLE program has been approved in accordance with the requirements of the New York CLE Board for a maximum of 1.5 credit hours, of which 1.5 can be applied toward the Professional Practice requirement. This program is appropriate for both transitional and nontransitional attorneys.
In case you missed it, Alyce L. Alfano and Peter J. Maher presented a complimentary webinar on the topic of special education judicial and hearing officer decisions. The webinar reviewed recent decisions, including U.S. Supreme Court decisions, and provided special education administrators with an understanding of important precedent for moving forward in 2018. The complimentary webinar replay is now available to watch on demand for up to one year.
>>Watch Webinar Replay *Please follow the prompts to register/log-in when launching the replay.
Peter Maher has been quoted in an article that reminds school officials and Section 504 coordinators to base placement decisions on Section 504 practices, not administrative convenience. This article originally appeared in SpecialEdConnection®.
Students with disabilities may end up in the same regular education classroom together for a variety of reasons.
A principal might recognize that one teacher has a knack for differentiating instruction. A classroom might already be set up as an allergy-sensitive room. Or a rural school may only have one class per grade.
Regardless of their intentions, school officials and 504 coordinators need to be cognizant of Section 504’s placement practices and LRE language and ensure they’re not categorically grouping students with disabilities into certain classrooms, said Peter J. Maher, a school attorney with Shipman & Goodwin LLP in the firm’s Hartford, Conn., office.
“Administrative convenience can be a subconscious factor that administrators and teams have to be careful of,” Maher said. “The key is that everything is based on an individualized approach.”
Consider these pointers:
• Watch out for classroom assignments that appear based on disability label. It may seem safer to have all third-graders with food allergies in the same classroom, but if that decision is made based on their disability label without regard to each students’ individual needs, it could violate 504, Maher said. “Even if well-intentioned, school districts should avoid the idea or the potential claim that students are grouped by a label or disability,” he said. While one teacher may have particular experience handling food allergies, it’s likely that those students could be appropriately accommodated in any general education classroom, he said. Consider training all teachers on accommodating students with food allergies, he said.
• Don’t steer students to certain classes for administrative convenience. Look out for policies or practices that steer students with disabilities to certain classes. For instance, a New Jersey district violated Section 504 and the ADA by advising students with disabilities to take Spanish rather than French or German so that staff only needed to provide necessary supports in one foreign language class. Washington Twp. (NJ) Sch. Dist.-Sewell, 48 IDELR 80 (OCR 2006).
• Be aware of any state rules regarding class composition. States may have class size and composition rules on the ratio of students with disabilities to those without disabilities in general and special ed settings. For instance, Illinois defines a general ed classroom as having no more than 30 percent special education students. “When a student’s IEP calls for services in a general education classroom, the rule requires the student to be served in a class that is at least 70 percent composed of students without IEPs,” said Melissa Taylor, director of student services for the Belleville Township High School District 201. An administrator may try to pair students with disabilities with a regular ed teacher that she knows is exceptional at providing extra supports, but the class composition shouldn’t exceed these state limits, Taylor said.
Administrators could look to their state rules under the IDEA as a guide for addressing the ratio of students covered only under Section 504 in a classroom, Maher said. Overall, when assigning students to classrooms, administrators need to “be careful of not ending up with the unintended impact or result of creating a so-called ‘regular ed’ setting with large numbers of students with disabilities,” he said.
• Remember LRE requirement. Remind teams that Section 504 has a similar requirement to the IDEA’s LRE mandate. Schools are required to educate students with disabilities with their nondisabled peers to the maximum extent appropriate to the needs of the student with the disability.34 CFR 104.34 “The idea is to be educating students alongside nondisabled peers, not like-disabled peers,” Maher said.
Consider this example from a California district that failed to provide adapted PE in the LRE to a student with a mobility impairment. The student received services in a separate class with two other students with mobility impairments rather than during the regular PE period with his nondisabled peers because of the adapted PE teacher’s schedule, not the student’s needs. See Galt (CA) Joint Elementary Sch. Dist., 20 IDELR441(OCR 1993).
Remind teams that the first option in determining placement should be the setting where the student would be if he didn’t have a disability, Maher said. From there, the team determines if the student needs any supplementary aids or services to remain in that setting alongside his nondisabled peers, he said. If the team determines the student needs more targeted supports or interventions outside a regular education setting, that’s an individualized determination based on the student’s needs, not what’s administratively convenient, Maher said.
Jennifer Herseim covers Section 504, education technology, and Common Core issues related to special education for LRP Publications.
October 30, 2017
Reprinted with permission from: Special Ed Connection®. © 2017 LRP Publications, 360 Hiatt Drive, Palm Beach Gardens, FL 33418. All rights reserved. SpecialEd Connection® is your go-to source for compliance guidance and use-today solutions for all your day-to-day special education responsibilities. For FREE access or more information, please call 1-800-341-7874 or visit www.SpecialEdConnection.com. For more LRP Publications resources, visit www.shoplrp.com.
The General Assembly has finally passed a budget, and the Nutmeg Board of Education has been spared the catastrophic cuts in state aid that some had predicted. Veteran Board member Bob Bombast was therefore pleased to turn his attention to weightier matters: the appearance of the teachers in Nutmeg and that of their classrooms. Bob had seen a video on YouTube of an admiral exhorting a graduating class to make their beds every morning as a key to their success, and he decided that greater discipline among teachers would be beneficial to them and to the students they teach. Based on that inspirational video, Bob came up with a new initiative for the Board of Education to consider.
Under Committee Reports, Bob unveiled his vision for a more effective school system, the “Tidy Teacher Initiative.” “A neatly-dressed teacher in a tidy classroom will be the foundation for greater achievement of students in the Nutmeg Public Schools,” Bob announced grandly. “I have been concerned that teacher dress in Nutmeg has devolved from Business Casual to College Grunge, hardly the way to inspire our students. And don’t get me started on the mess and clutter in some classrooms! Under my plan, we will establish standards for orderly classrooms and well-dressed teachers. Our classrooms will have perfectly aligned chairs, neatly stacked books and supplies, and counters free of clutter. Our teachers will be neatly-dressed in well-shined shoes. A retired Navy Seal will train each of our building administrators on how to inspect their classrooms and their teachers to assure that they comply with these new standards.”
Mr. Superintendent had seen worse ideas in his career, and he went ahead faithfully to execute Bob’s plan. In consultation with the retired Navy Seal Bob had recommended, Mr. Superintendent drafted regulations for how teachers would now be expected to dress and to maintain their classrooms, down to detailed instructions on how to stack books and straighten chairs at the end of each day. After their training, the building administrators went ahead with the prescribed classroom inspections that Bob envisioned, and almost every teacher in the district flunked the initial inspection. However, Mr. Superintendent directed the principals to give the teachers another chance to pass before writing them up.
Tom Teacher, President of the Nutmeg Union of Teachers, spoke to this issue during Public Comment at the Board meeting last evening. “Once again, Bob Bombast and the Board are micro-managing and violating the rights of teachers. We must insist that the Nutmeg Public Schools immediately stop implementing this ill-advised and illegal plan. If you don’t, we will be filing a charge with the State Labor Board.”
“Go ahead and file,” Bob responded. “The Board has every right to go ahead with the Tidy Teacher Initiative. Maintaining standards for teacher dress and neat classrooms is a basic management right.”
Tom Teacher started to respond, but Mr. Chairman ruled that he was out of order. However, Tom Teacher did get the other Board members wondering whether NUTS really did have a valid claim.
Should the Nutmeg Board of Education rescind the Tidy Teacher Initiative? If so, why and for how long?
Dear Legal Mailbag:
One of the kindergarten teachers in my school is a bit of a drama queen and, thus, I was not terribly surprised when she made a big deal out of an accident in her classroom. One of her students (a five year old, mind you) freaked out when he realized that he had forgotten his “love object” for show-and-tell. The teacher tried to comfort him, but he was wailing and flailing about and, unfortunately, he connected with the teacher’s face as he was swinging his arms wildly, giving her a black eye.
When she reported this unfortunate event, I was duly sympathetic. I told her to see the doctor and to file a report of injury, and I thought that the situation was resolved. I was therefore surprised when she showed up the next day with her union representative with a written “report of an assault.” I asked them what I was supposed to do with the “report,” and they impatiently told me that I should report this assault to the police. I am afraid that I made things worse when I laughed out loud at what I thought was a joke. Dead serious, they told me that I am obligated to file the report with the police, and then they chastised me for my lack of concern for teacher safety.
Frankly, I am at a loss here. I didn’t mean to be disrespectful, but this seems ridiculous. Do you know something I don’t know about my obligations here?
Color Me Confused
Indeed, Legal Mailbag knows all about your obligations when a teacher (or other school employee) files with you a report of assault by a student on school property. But what puzzles even Legal Mailbag is whether those obligations apply here.
In Connecticut, school principals have a statutory obligation to report assaults by students on school employees to the local police when they receive a written request to do so. Specifically, Conn. Gen. Stat. § 10-233g(a) provides:
(a) Where there is a physical assault made by a student upon a teacher or other school employee on school property or in performance of school duties and such teacher or employee files a written report with the school principal based upon such assault, the school building principal shall report such physical assault to the local police authority.
In many cases, it will be clear that an assault has occurred, and there will be no question that you are required to share the employee’s written report of the assault with the local police. But other times, including the unfortunate events in that kindergarten classroom, it will not be at all clear whether an assault occurred.
Determining what is an “assault” in the school context has legal significance because a separate statute, Conn. Gen. Stat. § 10-236a, provides special rights to teachers who are injured in an “assault” by a student, including the right to paid leave without charge to sick leave as well as payment for all related medical bills. However, Legal Mailbag has reviewed the case law on this subject and the courts are divided on how to define an “assault” in such cases. One superior court adopted a definition of an “assault” as “an intentionally violent and hostile attack on another person” and ruled in 2004 that an employee injured through student horseplay was not entitled to the benefits of Section 10-236a. By contrast, in considering a claim under the statute when a special education student injured a paraprofessional, another superior court ruled in 2011 that intent is not necessary to establish an “assault” under Section 10-236a. In 2017, a third superior court judge noted the disagreement in these two cases over how “assault” should be defined in interpreting Conn. Gen. Stat. § 10-236a. However, the court declined to side with either prior ruling. Rather, the court dismissed cross motions for summary judgment on the basis that there are genuine issues of material fact in the case that preclude summary judgment. We are now waiting for a ruling on the merits in that case.
Given the uncertainties, Legal Mailbag offers the following practical advice. If a teacher (or other school employee) files with you a written report alleging an assault, go ahead and forward the report to the local police. However, if you do not believe that the actions described in the report constitute an assault, share your position as well to avoid creating the inference that you have conceded that the described events meet the statutory definition of assault.
Finally, Conn. Gen. Stat. § 10-233g(b) provides that “No school administrator shall interfere with the right of a teacher or other employee of a board of education to file a complaint with the local police authority in cases of threats of physical violence and in cases of physical assaults by a student against such teacher or employee.” Even when you disagree with the school employee’s claim of assault, let the employee file a report with the police as he or she sees fit. Not that you, of course, would be tempted to do otherwise.