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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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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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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2018 Special Education in Connecticut Summit: Promoting Equity for Marginalized Students With Disabilities

Co-sponsored by the Klebanoff Institute and the University of Connecticut Neag School of Education

Date: Tuesday, April 24, 2018
Time: 8:30 a.m. – 2:30 p.m.
Location: University of Connecticut School of Law, 45 Elizabeth Street, William F. Starr Hall, Hartford, CT

Shipman and Goodwin attorney Susan Freedman will join co-presenters for the panel discussion, Promoting Positive and Equitable School Environments for All Students With Disabilities from 10:45 AM — 11:45 AM at the April 24th Special Education in Connecticut Summit.

Panel Moderator: David Desroches, WNPR

Presenters:
Sarah Eagan — Connecticut Children’s Advocate, State of Connecticut Office of the Child Advocate
Kelly Enoch — Director of Special Services, Clinton (Conn.) Public Schools
Susan Freedman — Partner, Shipman & Goodwin Counselors at Law
Steven Hernandez — Executive Director, Connecticut Commission on Women, Children, and Seniors
Tamika La Salle — Assistant Professor, School Psychology, Neag School of Education
Marisa Mascolo Halm — Director, TeamChild Juvenile Justice Project, Center for Children’s Advocacy

For a complete program agenda and registration information, visit: https://education.uconn.edu/2018-special-education-in-connecticut-summit/.

CAS Legal Mailbag Question of the Week – 4/10/2018

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

Dear Legal Mailbag:

I have been fortunate to be the principal in a school district that provides building substitutes and I have often been able simply to assign one of my two building subs to cover for an absent teacher without having to resort to the sub list. For example, early this year, one of my veteran teachers took seriously ill and, last October, I assigned a building sub to that class to cover for the teacher. Happily, the teacher is regaining his health, and he will return to work next fall. Given these circumstances, the building sub will continue covering the class until the end of the year.

My question has to do with the building sub. Fortunately, he has his teaching certification, and he has done a great job covering the class this year. Unfortunately, the powers that be have told me that the district can’t afford building subs next year and so the sub is out of a job. We do have a vacancy for next year because another teacher has resigned for retirement purposes effective at the end of the year; and, the sub has asked me for a recommendation as part of his application for the position. I think he is great, but I don’t want to exercise favoritism in the hiring process. Rather, in this competitive environment, I want the district to find the best candidate for the vacancy.

Do you think that I can gracefully decline this request?

Thank you,
Principally Polite

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What Independent Schools Need to Know About EUGDPR

The European Union passed a sweeping data privacy law that is affecting businesses, organizations and educational institutions worldwide. This law, known as the “General Data Protection Regulation” (or “GDPR” for short), will in many cases dramatically change the manner in which organizations collect, use and disclose the personal information of European Union residents. The GDPR comes into effect on May 25, 2018, and many in the independent school community are asking if, or how, the GDPR may impact the operations, policies and procedures of independent schools in Connecticut. Shipman & Goodwin attorneys Bill Roberts and Ben FrazziniKendrick will offer a brief overview of the GDPR, its potential application to your institution and, if applicable, advice on how to work towards compliance.

When: Wednesday, April 18, 2018, 1:00 pm EDT
Where: Aria Banquets, 45 Murphy Road, Prospect, CT 06712

Register Now!

SEE YOU IN COURT! – April 2018

After serving as Chairperson of the Nutmeg Board of Education for six long years, Mr. Chairman announced unexpectedly at the last meeting in February that his company had transferred him to Illinois. At what would be his last meeting, Mr. Chairperson told his colleagues that they were the best board members in Connecticut, all appearances to the contrary notwithstanding. For their part, the other Board members perfunctorily thanked Mr. Chairperson for his service, but then immediately started discussing who should take over as Chair. As it turned out, only Bob Bombast and his nemesis on the Board, Mal Content, were interested. With two vying candidates, however, the Board didn’t know what to do.

Mr. Superintendent tries to stay clear of intra-Board issues, but he couldn’t resist offering a suggestion that night. “The Board should convene into executive session and interview both Mal and Bob, and then you can vote to elect a new Chairperson.” The Board thanked Mr. Superintendent, and the Board did just that, after adding “Discussion of candidates for Board Chair” to the agenda by a two-thirds vote. Bob and Mal then made their pitches to their fellow Board members in the executive session, and the Board reconvened in open session to vote by secret ballot.

Before the voting began, Mr. Chairperson announced that he would not vote, and the remaining Board members split evenly between Bob and Mal. It was 4-4 on the first ballot, and it was 4-4 on the second ballot. Board members looked around curiously, trying to figure out who was voting for whom, but in voting two more times, the Board members deadlocked again 4-4 both times.

Mr. Chairperson was concerned that the Board should figure something out before he left for Illinois, so he proposed that Penny Pincher, currently the Board secretary, be named Chairperson Pro Tempore at the next meeting, to serve until the Board breaks the tie and elects a new Chair. After teasing Mr. Chairperson about his fancy words, the other Board members voted unanimously to elect Penny as Chairperson Pro Tempore, commencing with the next meeting.

Penny convened the next Board meeting, and she did a nice job. On the agenda that evening was the vote to fill the vacancy on the Board, and the Board promptly elected Nick Newbie, who was suggested by the Town Committee of Mr. Chairperson’s party. The Board also held another secret ballot election for a new Chair, but the Board deadlocked again, given that Nick chose to abstain. Bob Bombast even joked about how stubborn they all must be. The meeting ended with agreement that Penny would continue on as Chairperson Pro Tempore, i.e., on a temporary basis.

Two days before the April meeting, the Board members were shocked to read in the Nutmeg Bugle that Mayor Megillah, citing the need for fresh blood, had announced that he has appointed Nick Newbie to serve as Chair. You could cut the tension with a knife as the Board members gathered before the next meeting. Penny sat grimly at the head of the Board table, holding the gavel tightly in her hand. Nick approached her sheepishly, and he asked her to turn over the gavel to him.

Should she?

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CAS Legal Mailbag Question of the Week – 3/27/2018

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

Dear Legal Mailbag:

Our school has a number of security cameras, which are a blessing and a curse. Sure, it is nice to be able to identify students who are up to no good. But the rules about whether and how we can use video footage are giving me a headache.

A case in point is the security camera video of a serious student altercation last week. The video is crystal clear in showing that one student started the fight and that the other student was just defending herself. Unfortunately, there are three other students in the frame who are watching the action. We sent out FERPA releases to the parents of all the students so that we could show the video at the expulsion hearing. But the mother of a student who was just a bystander called me to let me know that she would not be signing the release. I asked her why and she said that she didn’t want her daughter to get involved.

The hearing is next week and I need your help. Can I testify at the hearing as to what I saw on the video? Should I subpoena the video? Help!

Thank you,
Roll the Tape

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