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Janus v. AFSCME: Implementation Issues

On June 27, we issued an alert concerning the decision of the United States Supreme Court in Janus v. AFSCME (June 27, 2018). There, the Court held that mandatory agency fees (also sometimes known as service fees) for public employees violate the First Amendment rights of the affected employees. We wish now to follow up with further observations and recommendations for actions that public employers should consider to comply with the ruling. Continue Reading

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U.S. Supreme Court Declares Compelled Public Sector Agency Fees Unconstitutional

In a 5-4 decision, the United States Supreme Court today ruled that provisions requiring public employees to pay agency fees violate the First Amendment of the U.S. Constitution. In doing so, the Supreme Court expressly overruled its own 41-year-old precedent.

This closely watched case arose from a challenge by an Illinois public employee to the requirement that he pay agency fees. Prior case law prohibited public sector employees from being forced to join a union and pay union dues as a condition of employment. However, twenty-two states permitted contractual provisions requiring employees to pay an agency fee to cover the costs of collective bargaining and contract administration. The plaintiff in Janus argued that the requirement to pay an agency fee interfered with his First Amendment rights because it forced him to financially support his union’s political activities, even if he disagreed with them. Continue Reading

CAS Legal Mailbag Question of the Week – 7/11/2018

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

Dear Legal Mailbag:

At the end of each year, the English Department at the High School publishes “The Light,” an anthology of poetry written by our students. Teachers can nominate particularly good student work, and students can submit work themselves for publication. A small group of teachers reads the submissions and chooses the “best” poetry for inclusion in the anthology. I say “best” in quotations because one of the poems that was included has caused a firestorm on social media. I am no tender flower, but the poem in question made even me uneasy in its quite graphic depiction of a sexual encounter between two students. Now, the Internet is blowing up with parental and community outrage that we would have published this poem in a school anthology.

I talked to the members of the selection committee, and they sheepishly agreed that they wondered whether the poem was appropriate for a school publication. After some debate, however, they agreed that the poem has substantial artistic merit, and they felt that they could not censor this student’s poem because the student has free speech rights.

I know that the United States Supreme Court has provided some guidelines for addressing student speech in its decisions in Hazelwood School District v. Kuhlmeier (1988) and Bethel School District No. 403 v. Fraser (1986). However, I don’t know where we can draw the line in telling a student that her poem won’t be included in the anthology despite, in the eyes of some, its artistic merit. Help!

Thank you,
What’s Art Anyway

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CAS Legal Mailbag Question of the Week – 6/8/2018

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

Dear Legal Mailbag:

I understand that we can no longer make referrals to the juvenile courts for truancy, and I have a simple question – now what? The problem of student truancy didn’t just go away, and now the courts won’t help us.

As you know, these days we are being told to call almost everything in to DCF, and I remember that the law refers to “neglect” as well as “abuse.” The way I see it, if a parent is not making sure that his or her child is attending school, that’s “educational neglect.” Next time I have one of those students who are out of school for days and days without good excuse, I will just call DCF and let them deal with it. Does that sound good to you?

Thank you,
I’m Calling It In

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SEE YOU IN COURT! – June 2018

The Nutmeg Board of Education finally has a budget for the 2018-2019 school year.  Difficult as the process was, however, the hard work for the Board of Education was now beginning.  Somehow, somewhere, the Nutmeg Board of Education must find savings in the amount of $2,000,000 in the budget reconciliation process.

Ms. Superintendent knows that the only way to find the necessary reductions will be to cut both programs and staff, but even she was daunted by the scope of the task.  By contrast, veteran Board member Bob Bombast is a font of ideas, good and bad, and he is not shy about sharing them.

“Let’s start with some furloughs for teachers,” Bob began grandly at the last meeting of the Board.  “We have six days in the calendar for professional development for whatever that is worth.  Who wouldn’t like some time off instead?”

Board members Penny Pincher and Red Cent nodded in agreement, but Mal Content was not convinced.  “Don’t we have to negotiate with the Nutmeg Union of Teachers about this?  I don’t know why they would just agree to take a pay cut.”

Bob was unfazed.  “NUTS will agree if it knows what is good for its members.  Besides, I am just warming up.  We will certainly have to cut staff and programs too.  World language in elementary school, for example, is a luxury we can longer afford.”

“Hold on, Bob,” Mal Content interrupted.  “We should have this discussion in executive session.  We don’t want teachers reading in the paper that the Board is considering the elimination of their positions.”

“For once, Mal, you make a good point,” Bob responded, and on Bob’s motion, the Board promptly convened in executive session to discuss “personnel matters.”  Once the Board was in executive session, Bob continued.  “We need to make some serious reductions, and world language is a great place to start.  With Google translation, we certainly don’t have to clutter our minds learning foreign languages.”

Penny Pincher chimed in.  “I agree with Bob, but I am concerned that getting rid of world language at the elementary school will not be nearly enough to close the $2,000,000 shortfall.  What else can we do?”

“Let’s get rid of art in the elementary school as well,” Bob responded.  “Elementary teachers can just take care of art instruction as well.”

“With all due respect, Bob, I am not sure that even eliminating world language and art instruction at the elementary level will be enough,” Ms. Superintendent said.

“Well, it’s a good start,” Bob responded.  “We will show our good faith to the Town fathers, and if despite our efforts we run out of money, we can just ask for a supplemental appropriation.  Who’s in?”

Other than Mal, who seems to oppose everything, the Board members agreed to go ahead with Bob’s plan.  The Nutmeg Board of Education reconvened into public session and announced that teachers would be furloughed for six days next year and that elementary art and world language will not be taught as separate subjects anymore, starting in September.

Problem solved?

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Office for Civil Rights Launches Website Accessibility Technical Assistance Initiative

On May 17, 2018, the U.S. Department of Education’s Office for Civil Rights (OCR) announced the launch of a Website Accessibility Technical Assistance Initiative (the “Initiative”). As part of the Initiative, OCR will offer a series of general and personalized webinars to provide technical assistance directly to information technology (“IT”) professionals, including webmasters, who work with schools, state education agencies, libraries, colleges, and universities, to assist them in making their websites and online content more accessible to individuals with disabilities.

OCR is responsible for enforcing Section 504 of the Rehabilitation Act of 1973 (“Section 504”) and Title II of the Americans with Disabilities Act (“ADA”), neither of which explicitly address accessibility to online content. Nevertheless, and despite the fact that it has not issued specific policy guidelines regarding website accessibility, OCR has taken the position that public agencies, other institutions receiving federal funds, and entities subject to Title II of ADA, whose websites do not comply with the Web Content Accessibility Guidelines (“WCAG”) and the Web Accessibility Initiative Accessible Rich Internet Applications Suite (“WAI-ARIA”), fail to comply with Section 504 and the ADA.

Subsequently, hundreds of educational institutions throughout the country have found themselves the subject of OCR investigations in response to complaints that their websites are not satisfying the requirements of these incredibly intricate guidelines. Many educational institutions have already entered into resolution agreements with OCR to resolve such complaints. These website accessibility complaints, and compliance with the resolution agreements, have placed a huge burden on the resources of both educational institutions’ and OCR alike. The announcement of the Initiative comes in tandem with OCR’s release of a new, streamlined resolution agreement (the “streamlined agreement”) designed, according to OCR representatives, to help educational institutions and OCR work together more efficiently to bring websites into compliance while providing such educational institutions with technical assistance. Recently, OCR has been allowing educational institutions who have already signed a resolution agreement the chance to switch to the streamlined agreement.

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The FMLA: Challenges for Independent Schools

HR Forum
June 15, 2018
St. George’s School, 372 Purgatory Road,  Middletown, RI
9:45 AM – 11:00 AM EDT

Leander Dolphin will present on the FMLA and its applications to and challenges for independent schools at the HR Forum at St. George’s School in Middletown, Rhode Island. The annual HR Forum is a gathering of HR Directors from independent schools throughout the northeast.

Colleges and Universities Facing Union Organizing Campaigns: An Update

The 2018 CCIC Annual Member Forum
June 12, 2018
Quinnipiac University, North Haven Campus
8:15 AM – 1:00 PM EDT

Gary Starr and Jarad Lucan will present a workshop entitled “Colleges and Universities Facing Union Organizing Campaigns: An Update” as part of the 2018 Connecticut Conference of Independent Colleges’ (CCIC) Annual Member Forum at Quinnipiac University’s North Haven Campus. This session, which will run from 10:00 to 10:50 AM, will explore union organizing efforts at colleges and universities, including with respect to students and adjunct faculty. Attendees will learn about recent cases involving successful and unsuccessful attempts to organize staff and the current state of the law as it relates to organizing on campuses.

Pre-registration is required. Click to download the event brochure, or visit www.theccic.org for more information.

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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