Keep Calm and Just Keep Serving. Understanding the obligation to provide services after an MDR team decision is not always clear to all school employees. Erin and Jeremy discuss the “Black Letter Law” related to MDRs and what happens when MDR teams venture into the realm of behavior not being a manifestation of a student’s disability. teams. They share a recent case from South Dakota which highlights the importance of the IEP team’s involvement in determining what services will be provided in order to meet the IEP goals and the general education curriculum.
You can also listen here or wherever you get your podcasts. Look for new episodes on the second and fourth Tuesdays of the month.
The Special Education Team of Ennis Britton is pleased to announce the rollout of our new podcast “On the Call”. Each episode focuses on a real-life special education scenario you may have encountered or might bump into very soon. Ennis Britton attorneys Jeremy Neff and Erin Wessendorf-Wortman take the call and then discuss applicable cases and laws related to the scenario presented.
The first episode covers the basics of a Manifestation Determination Review or “MDR”. They review a recent case in Connecticut that has implications for MDR meetings and highlights what you should consider related to the behavior which resulted in the MDR and the importance of digging into the details as you prepare for the meeting.
You can also listen to the first episode of the podcast here or on Spotify, Amazon and Google Podcasts. Look for new episodes on the second and fourth Tuesdays of the month.
School resource officers (SRO) play a vital role in ensuring that schools are safe and welcoming places where all students can learn. So how much information do they really need to know about school records of the children for which they serve? The answer may seem obvious, but let’s take a look into the fine print of FERPA.
SPPO acknowledged that a district may nonconsensually disclose education records to school officials who have a legitimate educational interest in the records, but noted that, in this instance, the district had not designated a SRO or any other law enforcement officer as a “school official.” Since the disclosure did not fall under the exceptions to the parental consent rule or any other applicable exception, they determined that the district did violate FERPA laws.
The district made assurances to the SPPO that it had scheduled training for its administrators and officials from law enforcement agencies who work with the district on FERPA’s privacy and nondisclosure provisions and the complaint was closed.
What does this mean for your district?
If your district hires a law enforcement official or contracts with local law enforcement for its SRO(s), consider including your SRO in individuals who have a legitimate educational interest in student records. That way, the district may disclose personally identifiable information to the SRO without parental consent if there is an altercation or serious disciplinary incident on campus. It’s not unreasonable to assume SROs should be privy to student records, but laws are tricky. It is even advisable to train SROs and building administration on appropriate access to student records and information. If you’re ever in doubt, don’t hesitate to reach out to an Ennis Britton attorney for further clarification.
Students’ education records are protected under FERPA. The term “education records” is defined, with certain exclusions, as those records that are directly related to a student and which are maintained by an educational agency or institution, or by a party acting for the agency or institution, to which funds have been made available under and program administered by the Secretary of Education.
Under FERPA, a school is prohibited from disclosing personally identifiable information from a child’s education records, without consent, unless the disclosure meets an exception to FERPA’s general consent requirement.
Any complaint must:
be filed by a parent who maintains FERPA rights over the education records which are the subject of the complaint;
be submitted to the SPPO within 180 days of the date of the alleged violation or of the date that the complainant knew or reasonably should have known of the alleged violation; and
contain specific allegations of fact giving reasonable cause to believe that a violation of FERPA has occurred.
Ultimately, the parents failed to establish that the teacher’s recording qualified as part of the student’s education record and SPPO ruled that the videos did not violate FERPA. The SPPO maintained that the recordings did not focus on a specific student, but instead showed students participating in school activities without highlighting a particular student. They further noted that the SPPO has not issued formal guidance on the use of personal devices by school officials and the FERPA regulations do not specifically address this issue.
What Does this Mean for Your District?
While the SPPO determined that the recordings in this case were not prohibited under FERPA, SPPO did indicate that other laws protecting the confidentiality of information in general or personally identifiable student information could come into play. Great caution and care should be exercised by school officials when making recordings or taking photographs in a classroom to ensure that prior consent is obtained to ensure that no federal or state laws are violated.
This case arose because a philosophy professor at Shawnee State University (Portsmouth, Ohio) refused to abide by the University’s policy requiring that he refer students with pronouns corresponding to their gender identity. The professor is a devout Christian whose religious convictions influence his thoughts on human nature, marriage, gender, sexuality, morality, politics, and social issues.
At the start of the 2016-17 school year, the University informed its faculty that they were required to refer to students by their preferred pronouns. The professor was informed that he would be disciplined if he refused to use a pronoun that reflects a student’s self-asserted gender identity. In his class that semester, a student requested to be referred to utilizing the female pronouns, and the professor would not oblige. The professor then requested accommodations for his religious and personal views. The student then filed a Title IX complaint against the professor. The professor’s request for religious accommodations were denied by the University, and the Title IX complaint resulted in a conclusion that the professor created a hostile environment for the students in his class; a violation of the University’s nondiscrimination policies, which resulted in discipline.
Then, the professor filed a lawsuit alleging that the University violated his rights under the Free Speech and Free Exercise Clauses of the First Amendment, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Ohio Constitution, and his contract with the University.
The Sixth Circuit found that First Amendment free speech rules apply differently when it is government speech. Normally when public employees are speaking pursuant to their official duties, they are not speaking as citizens with First Amendment protections: therefore, the Constitution does not protect their speech/communications from employer discipline. However, in this case, the Sixth Circuit highlighted its belief that professors at public universities retain First Amendment protection- at least when engaged in core academic functions, such as teaching and scholarship.
The Court rejected the argument that “…teachers have no First Amendment rights when teaching, or that the government can censor teacher speech without restriction.” Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 680 (6th Cir. 2001). The Court recognized the professor’s rights to academic freedom and freedom of expression within this case, including within that academic freedom the choice to use of pronouns to shape classroom discussion. At the university level, this professor was able to make choices regarding gender identity for appropriate classroom discussion in his political philosophy courses.
In summary, the Court remanded the case back to the lower court for the lower court to issue a decision in compliance with the First Amendment rights recognized by the Sixth Circuit.
What this means for your District
While this case deals with speech from a university professor, and not that of a K-12 educator, it is a good case to be aware of when faced with situations that may arise from staff members who refuse to refer to a transgender student with the student’s preferred pronouns or nicknames. Schools are required to recognize the academic freedoms that exist for educators- but how this will be balanced against the needs of minor students in the future will be one to watch. In this case, the Court was not remotely persuaded by the arguments of the University that a hostile environment was created by the professor’s actions against the transgender students in his class, because the Court was not presented with any evidence or arguments that the student(s) was denied any educational benefits or opportunities.