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Proposed Title IX Sexual Harassment Regulations Would Have Significant Impact on Public Schools and Colleges and Universities

The U.S. Department of Education recently released its anticipated proposed regulations regarding sexual harassment under Title IX of the Education Amendments of 1972. If adopted, these regulations could have a significant impact on the manner in which educational agencies and institutions investigate and address claims of sexual harassment or discrimination.  As currently drafted, these proposed regulations would be applicable to both public K-12 school districts and colleges and universities that receive federal funding.

Key components of the proposed regulations include: a definition of sexual harassment; a duty for recipients only to investigate complaints of conduct that occurred within their program or activity; the adoption of an “actual knowledge” and “deliberate indifference” standard of liability; and detailed grievance procedures.

Currently there are no binding federal regulations related to sexual harassment under Title IX, only administrative guidance issued by the Department’s Office for Civil Rights, which enforces Title IX. The proposed regulations are open to public comment for 60 days, and may result in further revisions before they become final.

Please click here for our summary and analysis of the proposed regulations.

SDE Issues Guidance on Special Education Initial Evaluation Timelines

On December 21, 2018, the Connecticut State Department of Education (“SDE”) published updated guidance addressing the timelines for initial evaluations of students being evaluated for eligibility for special education and related services. As noted by SDE, both the federal Individuals with Disabilities Education Act (“IDEA”) and related Connecticut regulations impose timelines as to when a school district must complete those initial evaluations and, when appropriate, implement an individualized education program (“IEP”). You can read the new SDE guidance here, and we have summarized key provisions below. Continue Reading

CAS Legal Mailbag Question of the Week – 1/9/2019

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

Dear Legal Mailbag:

I confess that I am still a bit confused over the push to limit suspensions to in-school suspensions except in extreme cases. As the assistant principal at a large high school, I spend much of my time dealing with student discipline issues, and sometimes it is clear to me that a student should be suspended out of school. But my superintendent has commented to the principal that I am a “hanging judge” who should be more compassionate.

I take umbrage at that appellation (I used to teach English), but I would appreciate some guidance. Case in point is a student who got frustrated in class the other day and told his teacher to “go &^$%* himself.” The way I was raised, such disrespect and vulgarity would not be tolerated and the student would be out on his ear. Now, however, apparently I must go through some mystical process to decide whether to limit the discipline to an in-school suspension. I would rather simply draw a line in the sand and let students know that if a student swears at a teacher, he or she will be suspended out-of-school. Period. Does that work for you?

Thank you,
Keeping it Simple
Continue Reading

Jessica Richman Smith Named a Partner of the Firm

Shipman & Goodwin LLP has promoted Jessica Richman Smith to Partner.  Jessica represents schools in a variety of education, labor relations and employment law matters.  She negotiates certified and non-certified collective bargaining agreements on behalf of numerous public boards of education.

Jessica also represents school districts in labor and employment disputes, arbitrations, freedom of information hearings, teacher tenure proceedings, business contract matters, student disciplinary matters, election law matters and other legal proceedings involving Connecticut school districts.  In addition, she advises schools on education policies and practices, investigations concerning students and employees, compliance with various laws impacting schools (such as the Family Educational Rights and Privacy Act, the Connecticut Freedom of Information Act, background check laws and mandated reporting) and other legal matters affecting educational institutions. In addition to her practice, Jessica has taught at the University of Connecticut’s Neag School of Education. Previously, Jessica served as Deputy Executive Director with the New York City Department of Education.

SEE YOU IN COURT! – January 2019

At a recent meeting of the Nutmeg Board of Education, “security matters” was on the Board agenda. When the Board reached that item, Mrs. Superintendent told the Board that she has some ideas for improving school security, and she suggested that the Board go into executive session for the purpose of holding that discussion. Local reporter Nancy Newshound from the Nutmeg Bugle stood up and demanded to be recognized. Mr. Chairperson sighed and said, “Go ahead Nancy. What’s your problem now?”

“If the Board goes into executive session, I will file a complaint with the Freedom of Information Commission! Mrs. Superintendent didn’t mention a specific plan, and you can’t just go into executive session to shoot the breeze about school security. School security affects everyone, and the public has a right to know what you are talking about.”

Noah Tall, a local curmudgeon who is free with his opinions, chimed in. “When I was in the service, I learned a lot about security. If you are smart, you will let me be part of the executive session discussion.”

Mr. Chairperson interrupted Noah and Nancy. “Look, you two. When you get yourself elected to the Nutmeg Board of Education, you will have a say in how we operate. Until then, we thank you for your comments and ask that you leave now so that the Board can have its executive session.”

Once the room was cleared, Mrs. Superintendent told the Board that she has been talking with the Police Chief, and they wanted jointly to suggest that the district hire another SRO to enhance security at Nutmeg Memorial High School. The Board members debated this recommendation, and after some discussion, they authorized Mrs. Superintendent to enter into an agreement with the Nutmeg Police Department providing that the Chief could hire another SRO and send the bill to the Board. With that, the Board reconvened in open session and adjourned the meeting.

Nancy carried through on her threat, and the next day she filed a complaint with the Freedom of Information Commission. Noah, however, did Nancy one better. Noah made an FOI request for the blueprints of Nutmeg Memorial High School. He explained that he was concerned about some “soft” access points, and that he needs the blueprints to make his suggestions on improving safety at Nutmeg Memorial High School. With his request, he noted that each passing day exposes the students to potential harm, and Noah informed Mrs. Superintendent that he would stop by in the morning to pick up the blueprints.

Mrs. Superintendent promptly responded to Noah by email to say that she was not interested in his suggestions and that she would not be making the blueprints available. However, Noah did not take “no” for an answer, and he too filed an FOIA complaint. Citing the provision in the FOIA that provides that members of the public should have “prompt” access to public records during normal business hours, Noah asked the Commission to find the Nutmeg Board of Education in violation of the law.

Does either Nancy or Noah have a valid complaint here? Continue Reading

CAS Legal Mailbag Question of the Week – 12/19/2018

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

Dear Legal Mailbag:

The other day, a student was recording his teacher and the other students in his science class with his smartphone. The teacher noticed, spoke to the student, and sent him on his way. However, she then made sure by email that each of his teachers was made aware of what the student did.

I was included on the email and I called the student down to the office and kind of threatened him with prosecution on the basis that he violated the law because Connecticut is a “two-party” state. Sadly, the student’s mother is a smarty-pants and she called me the next day to set me straight, explaining the “two-party” state statute relates only to telephone conversations. However, is the “one-party” law only for 1:1 in-person conversations? Wouldn’t it be eavesdropping by statute if a student records his teacher in a classroom since the discussions aren’t all 1:1 and the conversations that are 1:1 don’t include the student who is recording?

Thank you,
What Gives?  Continue Reading

How Changes Proposed to Title IX Regulations Governing Sexual Harassment Apply to Independent Schools

The U.S. Department of Education recently released its anticipated proposed regulations regarding sexual harassment under Title IX of the Education Amendments of 1972. If adopted, these regulations could have a significant impact on the manner in which educational agencies and institutions investigate and address claims of sexual harassment or discrimination.  Although these regulations may not be binding on independent schools, these evolving standards will foreseeably impact best practices and establish more general expectations.

Key components of the proposed regulations include: a definition of sexual harassment; a duty for recipients only to investigate complaints of conduct that occurred within their program or activity; the adoption of an “actual knowledge” and “deliberate indifference” standard of liability; and detailed grievance procedures.

Currently there are no binding federal regulations related to sexual harassment under Title IX, only administrative guidance issued by the Department’s Office for Civil Rights, which enforces Title IX. The proposed regulations are open to public comment for 60 days, and may result in further revisions before they become final.

Title IX specifically applies to state and local educational agencies and institutions that receive federal financial assistance (recipient(s)) and specifically prohibits discrimination on the basis of sex, including sexual harassment, which has the effect of denying students access to educational programs or activities. Generally, independent schools do not receive federal financial assistance, and are thus not covered by Title IX.  However, if an independent school, or any part (or program) thereof, receives any federal funds for any purpose, all of the operations of the independent school will be deemed covered by Title IX.

Please click here for our summary and analysis of the proposed regulations.

CAS Legal Mailbag Question of the Week – 12/12/2018

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

Dear Legal Mailbag:

I very much enjoy the Legal Mailbag, and I have a simple question for you. I’m wondering what can and cannot be placed in students’ cumulative files. In particular, I’m wondering about DCF 136 Forms, school records of behavioral/academic interventions, etc.

Thank you,
A Fan  Continue Reading

SEE YOU IN COURT! – December 2018

As the holiday break grows near, the members of the Nutmeg Board of Education have been on their best behavior, almost mellow in tone, dutifully moving through the agenda for each meeting. Things changed at the meeting last week, however, when veteran Board member Bob Bombast moved to add an item to the agenda: Investigation into Unauthorized Trip. Fellow Board member Mal Content was intrigued, and he seconded the motion without knowing what Bob was planning. Now everyone was curious, and the Board voted unanimously to add the item to the agenda.

“What on earth are you talking about, Bob?” asked Mr. Chairperson.

“I heard from reliable sources,” responded Bob, “that the Nutmeg Concert Band is going to Europe over the holiday break. I want to know who authorized this trip, because I know that the Board certainly did not.”

Mr. Superintendent was only too happy to respond. “I did. As you recall, the Board authorized a similar trip last year. And the year before that. And the year before that. Given that past practice, I figured that I would just save you all the trouble, and I approved the trip. The Band Director got a great deal on the tickets, and the venues are all set. Do you have any other questions?”

“I certainly do,” Bob responded with a steely tone. “How dare you approve this trip on your own? This is Board business!”

Fearing an argument, Mr. Chairperson suggested that Bob and Mr. Superintendent continue their discussion in executive session. However, Bob carried on. “What about liability?” Bob asked. “How can you let our students go on an unapproved trip? I can’t imagine that our insurance would cover that!”

At this point, the other Board members grew concerned about Bob’s diatribe, and Penny Pincher texted Mal Content, asking him to do something. However, Mal texted back that he shared Bob’s concern about the field trip, and he went on to express his own concerns about Mr. Superintendent’s “lack of respect” for the Board. Before Penny could text back, however, local reporter Nancy Newshound from the Nutmeg Bugle interrupted the meeting. “Point of order,” she shouted out. “I see Board members texting each other. This is an outrageous violation of the Freedom of Information Act, and I will be filing a complaint with the FOIC.”

Mal quickly put away his cellphone, but Penny responded angrily to Nancy. “My texts on my personal cell phone are no business of yours!”

Mr. Chairperson ruled both Penny and Nancy out of order, stating that the question of texts was not in the agenda and should not be the subject of discussion. But Nancy got in one more shot: “You are on notice that I will be making an FOIA requests for those texts tomorrow morning, and you had better not delete them. Understood?” Mal understood all too well, and as soon as he got home, he deleted the text messages, figuring that they were just texts that he did not have to keep.

The next morning Nancy made good on her threat, submitting a written request for all Board member text messages sent by and between the Board members, both during the meeting and afterwards.

Was it OK for Mal to delete his texts about Mr. Superintendent? Continue Reading

Graduate Students Organize Outside the National Labor Relations Board’s Jurisdiction

Unions have been actively organizing graduate students, while wanting to avoid having the National Labor Relations Board involved. They are particularly concerned that President Trump’s appointees to the National Labor Relations Board, who are now a majority of the Board members, will revisit and reverse the Columbia University decision. That decision determined that graduate students were employees and could organize and bargain collectively.

Already, the University of Chicago and Loyola University Chicago have refused to bargain with their graduate students after they formed unions through the NLRB process. These universities are challenging the status of graduate students as employees and appear to be willing to have the new Labor Board review their cases and potentially go to the circuit courts before negotiating with the unions. Continue Reading

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