On February 6, 2018, the Second Circuit dismissed the remaining appellate claims in Munn v. Hotchkiss School, the case involving a private school student who contracted tick-borne encephalitis on a school-sponsored trip to China. When this case was last at the Second Circuit in August 2015, the court held that there was sufficient evidence for the jury to find that the student’s injuries were foreseeable. However, at that time, the Second Circuit also decided that the pending appeal involved two issues directly related to state law and therefore certified the following two questions to the Connecticut Supreme Court for guidance: 1) whether state public policy imposed a legal duty on schools “to warn or protect against the foreseeable risk of a serious insect-borne disease when organizing a trip abroad and, if so, 2) whether the jury’s damages award, particularly the noneconomic portion, fell outside the limits of just damages, warranted [a reduction of the award].” Continue Reading
Anne Littlefield discusses steps to follow if a manifestation determination review reveals a substantial relationship between a student’s misbehavior and his or her disability. This article originally appeared in SpecialEdConnection®.
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A middle school student with ADHD is suspended for 12 days after getting into a fight in the cafeteria. The student’s IEP team conducts a manifestation determination review and concludes that the student’s problem behavior was a manifestation of his disability. What must the district do next?
Under the IDEA, if a student’s behavior is found to be unrelated to her disability, then the district may impose the same consequences as it would for a student without a disability. However, if an MDR reveals that the student’s misbehavior was caused by or had a direct and substantial relationship to the student’s disability or was the direct result of the district’s failure to implement the student’s IEP, then the district must take the steps outlined below.
1. Examine the student’s behavior. Conduct a functional behavioral assessment (unless the district conducted an FBA before the behavior that resulted in the disciplinary removal) and implement a behavioral intervention plan for the student.
If a BIP has already been developed, review it and modify it as necessary to address the student’s behavior. 34 CFR 300.530 (f).
Closely examine the student’s environment and disability-related needs during the FBA, recommended Anne Littlefield, a school attorney with Shipman & Goodwin LLP in Hartford, Conn.
“We’re looking for what triggers the behavior — the conditions that lead to the behavioral incident,” she said. Such triggers might include time of day, unstructured settings, or certain activities, she said. Consider: Is the student trying to get out of a non-preferred activity? Is there a sensory issue at play?
Then, determine what strategies and supports can be put in place to prevent the student from engaging in those behaviors, Littlefield said. Update the behavioral goals and objectives section of the student’s IEP to reflect the new plan. Continue Reading
RISSC March 2018 Conference
Sponsored by Kent School and Co-Sponsored by the Connecticut Association of Independent Schools (CAIS)
March 2, 2018 from 8:00 AM – 3:00 PM
Kent School, 1 Macedonia Road, Kent, CT 06757
Shipman and Goodwin attorney Mark Ostrowski will join Doug Lyons from the Connecticut Association of Independent Schools (CAIS) and and Chris Duble from FC Church Insurance to present a 90 minute session focused on best practices following the Hotchkiss appeal at the March 2nd Regional Independent School Safety Committee (RISSC) Conference. Presenters will share their thoughts and recommendations (including advice from United Educators) in response to the expansion of foreseeable risk as defined by the decision.
For a complete program agenda and registration information, visit: http://www.caisct.org/risscmar18.
Dear Legal Mailbag:
I don’t dare ask her, but I think that one of the teachers in my school has “histrionic personality disorder,” which DSM V describes as “a pervasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts.” The latest manifestation was her response to a student’s exuberantly waving his arms in class. Unfortunately, the student inadvertently struck the teacher in the mouth and bloodied her lip. It would, of course, be perfectly appropriate for the teacher to file a workers’ comp claim, but that would be mundane, as the teacher would say. Instead, the teacher sent me her “charges” against this student, and she demanded that I file a police report and seek prosecution.
I refrained from calling her “crazy” (thankfully I took that school law course), but I did tell her that I would not be filing anything with anyone. I thought that was the end of it, but yesterday I received a call from her union representative, who accused me of violating the law. “Are you crazy? Don’t you know,” she asked dismissively, “that you are legally required to file a police report whenever a teacher asks you to? Maybe we should file a report about you!” It was a short but unpleasant conversation.
What is the union representative talking about? Do I have anything to worry about?
Who’s Crazy Here
Join Shipman & Goodwin attorneys Benjamin FrazziniKendrick and William Roberts; Christopher Wardrop, Senior V.P. Public Entity Practice of USI Insurance Services LLC; and Douglas Casey, Executive Director for the CT State Commission for Educational Technology (CET) for this informative program about data privacy for public and charter schools.
The panel will cover the evolving data privacy statutory requirements, emerging cybersecurity threats, the development of internal data privacy procedures, the technical components that go into building internal protection against privacy breaches, and how to review and build cyber coverage.
On Friday, February 23rd, a panel of Shipman & Goodwin environmental, construction and energy attorneys will present this informative and interactive program regarding current and pressing environmental, construction and renewable energy-related issues and opportunities for independent schools. The presenters will address key legal (and practical) issues independent schools often face in their day-to-day operations as well as in connection with a campus building, renovation or demolition project, with particular focus on:
- Managing Environmental Risks and Hazardous Building Materials (e.g., mold, asbestos, lead, PCBs)
- Best Practices When Dealing with Outside Environmental Consultants and Contractors
- Responding to Environmental, Health and Safety Concerns and Crisis Management
- Best Practices, New Developments and Potential Pitfalls in Construction and Contracting
- How to Properly Manage Construction Litigation and Dispute Avoidance
- Facility-wide Energy Planning
- Important Considerations for Solar and Other Renewable Energy and Energy Efficiency Projects
- State Financing Programs for Renewable Energy and Green Building Projects
Attendees will benefit from an engaging discussion with attorneys who regularly assist independent schools with environmental, construction and energy-related matters. The presenters invite your input on particular issues your school is facing and any other matters you would like them to discuss during the presentation. Please provide your suggestions, comments and questions on the registration form if there are specific issues you would like the presenters to address. For more information and to register visit the CAIS website: http://www.caisct.org/hottopics.
WHEN: February 23, 2018 from 9:00 AM – 11:00 AM EST
WHERE: Hamden Hall Country Day School, Beckerman Athletic Center, 225 Skiff Street, Hamden, CT 06517
Dear Legal Mailbag:
This is the time of the year when some parents at my school really tick me off. It seems like every other day I receive an email or a call from a parent “informing” me that he or she will be withdrawing his or her child from school for a week or more for a “family vacation,” usually someplace warm. These parents act like sending their children to school is a choice they make out of the goodness of their hearts. Haven’t these people heard about the mandatory attendance laws?
To make matters worse, some of these parents insist that their children’s teachers provide assignments that the students are supposed to do (but rarely if ever actually do) while on vacation. The teachers understandably share my irritation over the cavalier attitude these parents have and they are bugging me to do something.
I have been reading the new Ninth Edition of the Practical Guide to Connecticut School Law, and I understand that a student should be considered truant if he or she has four or more unexcused absences in a month. Can I lay down the law and tell these parents that we will consider absence for these family vacations unexcused, with the result that their children will be considered truants whom I should report to the authorities? I know that I will be picking a fight, but I am really sick of these parents and their presumption that they can take their children out of school whenever they want.
No Use for No Shows
A student recently came to Mr. Principal in tears, accusing Joe Blow, a fifth-year senior at Nutmeg Memorial High School, of threatening to beat him up if he didn’t hand over his lunch money. When Mr. Principal investigated this claim, two other students told Mr. Principal that Joe had done the same to them. Mr. Principal then called Joe down to the office for a talk. Joe admitted that each of the three students had given him money when he asked them at lunch, but he adamantly denied that he had threatened anyone, claiming instead that the other students had willingly given him lunch money. Unconvinced, Mr. Principal suspended Joe and recommended expulsion.
Mr. Superintendent agreed with Mr. Principal’s recommendation, and he notified Ms. Chairperson that the Board would have to convene an expulsion hearing. Ms. Chairperson asked Mr. Superintendent if the case would be complicated. Mr. Superintendent told her that the case against Joe is airtight; the evidence will show that Joe was robbing fellow students. Given the likelihood of a short hearing, Ms. Chairperson scheduled the hearing after the upcoming Board meeting four days later.
Joe and his family received the letter notifying them of the hearing only two days in advance, but they showed up at the appointed time with Joe’s uncle, a lawyer who does estate planning. Ms. Chairperson opened the hearing by inviting Mr. Superintendent to present the case for expulsion. Mr. Superintendent called Mr. Principal as his first and only witness. Mr. Principal described the initial complaint against Joe as well as the claims by the other students that Joe had robbed them as well.
When Mr. Superintendent concluded his direct examination of Mr. Principal, Ms. Chairperson invited Joe’s uncle to cross-examine. The uncle gamely stood up and asked Mr. Principal how much Joe had taken from each of the students. Mr. Principal admitted that the amounts were small, given that Joe had taken their lunch money, but he explained that he didn’t know because the students had not told him the amounts.
At the end of the hearing, Mr. Superintendent and Joe’s uncle presented closing arguments. Mr. Superintendent said that the case was clear and that Joe should be expelled. The uncle, however, argued that the Administration had not proven its case – indeed they did not even know how much Joe was supposed to have taken.
As soon as closing arguments were concluded, veteran Board member Bob Bombast moved that the Board accept the recommendation of Mr. Superintendent and expel Joe for the rest of the year. Fellow Board member Mal Content seconded Bob’s motion, offering a friendly amendment that Joe be given two hours of homebound tutoring each day during the expulsion period as his alternative educational opportunity. Bob agreed to Mal’s amendment, and Ms. Chairperson, hearing no further discussion, called for a vote. The Board unanimously voted in favor of the motion, and Ms. Chairperson then called for a motion to adjourn, which also promptly passed.
As he was packing up his papers, Joe’s uncle asked Ms. Chairperson how he can appeal the Board’s decision. Ms. Chairperson smiled modestly, and told the uncle that, while she is not a lawyer, she was pretty sure that the decision is final.
Can Joe appeal, and on what grounds?
* * * Continue Reading
Dear Legal Mailbag:
I am the principal of a middle school and, recently, the parent of a seventh-grade student here called me to complain about a teacher. I am fortunate to work in a civilized community, and such complaints are fairly rare. I admit that I was annoyed with the complaint, given that one’s grades in middle school are not a factor in college admissions. But to be safe, I asked her to come in and talk personally with me about her concerns.
When we met, I was impressed with the parent’s sincerity. As I went through the evidence she showed me, I had to agree that the midterm and semester grades that the teacher had given the student didn’t seem to make sense. I thanked the parent for sharing the information with me and I told her that I would be getting back to her.
I next met with the teacher. Later I learned that he asked if he should have union representation when my secretary called him to schedule the appointment. Being a kind soul, my secretary told him that that would not be necessary. When we met, however, I realized that he should have brought a union representative, maybe even a good lawyer. He started out by trying to blame the parent as a grade-grubber, but, as we got into the facts, it was clear that the teacher had not kept good records and for all appearances he had just made up the grades he had assigned. To make matters worse, as we talked it through, it was clear that the teacher had not kept student work product or other documentation that would permit him, albeit after the fact, to reconstruct grades that accurately reflected student performance.
I need to get back to the parent; and, I certainly need to deal with this teacher. Can I fire the teacher and just give the student an A?
Making (Up) the Grade
Join Shipman & Goodwin labor and employment attorneys Daniel Schwartz, Jarad Lucan and Ashley Marshall for this complimentary CLE webinar where they will explore sexual harassment and cultural shifts taking place in the workplace. Attendees will learn best practices for responding to sexual harassment complaints, tips for properly investigating claims, and the basics for how to implement effective prevention training.
Topics will include:
- Indicators of harassment
- Risk management
- Appropriate response and zero tolerance approach
- Mixed messages and how to navigate them
- Sexual harassment response in the public eye and responding to FOIA requests
When: February 13, 2018, 12:00 PM – 1:00 PM
Who should attend: In-House General Counsel, Human Resource Professionals, Supervisory Personnel and Decision Makers