Court Rules Parents Not Entitled to IEE at Public Expense

A Pennsylvania district court found that parents of a student who had suffered three concussions were not entitled to an independent education evaluation (IEE) at public expense because they disagreed with the evaluation team’s IDEA classification.

The parents of a gifted high school student originally requested an evaluation in 2016. The district did not find the student eligible under IDEA but instead created a 504 plan for occupational therapy (OT) services.

The next year, the parents again requested an evaluation, but placed conditions of the types of testing the district could conduct. When the evaluation was completed, the district found the student eligible with an autism classification. The parents disagreed with the classification and the district offered on three separate occasions to conduct a reevaluation to consider their concerns, which they refused each time.

Nearly two years later the parents requested an IEE since the district did not use a traumatic brain injury (TBI) as the student’s disability category. It is noteworthy that the TBI was not medically diagnosed but was assumed by parents as a result of the three concussions suffered by the student a year earlier.

In declining the parent’s request for an IEE, the district filed due process to defend its evaluation. The state hearing officer ruled in favor of the district and the parents appealed.

Upon review, the federal court found that since the district conducted the evaluation based upon an area of suspected disability, and since there was no information presented to the district team to cause them to suspect TBI, the evaluation conducted by the district was justified. The court noted that an evaluation should be tailored to the specific areas in which a student is struggling but need not be designed to identify and diagnose every possible disability.

What this Means for Your District

The Pennsylvania court reiterated that a parent can request an IEE up to the time for the reevaluation. However, in looking at the remedies for the parents, the court found that since a new evaluation was due, the IEE request was moot. More importantly, schools should not feel compelled to change the disability classification of a student due to parent demand. Any such change must be based first upon suspicion of a disability and then on the assessment conducted by the district.

OHS Gives Notice of Important Rules Changes Concerning Universal Making and Vaccines

OHS Gives Notice of Important Rules Changes Concerning Universal Making and Vaccines

The Director of the Office of Head Start (OHS), U.S. Department of Health and Human Services (HHS), recently shared a letter with the Head Start community an update that will revise the Head Start Program Performance Standards (HSPPS) to include additional health and safety requirements.

On November 10, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its COVID-19 Guidance for Operating Early Childhood Education (ECE) and Child Care Programs. The CDC stressed that vaccination is currently the leading public health prevention strategy to end the COVID-19 pandemic, and promoting vaccination among all eligible individuals can help ECE programs protect staff and children in their care, as well as their families. It acknowledges that most ECE programs serve children in an age group that is not yet eligible for vaccination and emphasizes using multiple prevention strategies together to protect both children and adults in ECE care.

Consistent with this messaging, HSPPS now recommends universal indoor masking in ECE programs for everyone ages two and older. The standards will also require vaccination against COVID-19 for all staff, contractors, and volunteers working with children be fully vaccinated (two doses for Pfizer or Moderna and one dose of Janssen) by January 31, 2022. Anyone granted a vaccine exemption will be required to undergo weekly testing.

As part of President Biden’s Path Out of the Pandemic, an interim final rule with comment (IFC) was published on November 30, 2021. With the release of the new HSPPS, the Office of Head Start hosted a webinar outlining these new requirements and published Universal Masking and COVID-19 Vaccine Requirements FAQs. Both the webinar and the FAQ were released on November 29, and the webinar is available on demand through the OHS website.

Since these new requirements will be a federal mandate, districts with head start programs may wish to begin informing staff and/or parents of the projected procedures.

SCOTUS Affirms that Schools May Regulate Off Campus Speech – Sometimes…

In a lengthy decision, the Supreme Court of the United States found that a Pennsylvania High School overstepped when it suspended a student from the cheerleading squad for using social media to criticize her exclusion from a spot on the varsity team and a private softball team. The High Court found the school’s actions to be a violation of the student’s First Amendment rights. However, the Court stopped well short of declaring that all off-campus speech is protected from school-based regulation.

After discovering that she did not make the varsity squad, and while shopping in a convenience store the following weekend, the student at issue (B.L.) took to social media to express her displeasure with the decision in two brief Snapchat posts – one of which included profanity. The posts were initially shared with her social media friends, who shared the posts with other friends, including the child of the cheerleading squad coach. This upset team members and became a topic of chatter in a class taught by another coach. In response, B.L. was suspended from the JV squad for the upcoming year. This spurred the student and her parents to file suit in Federal Court.

After first granting a temporary restraining order and a preliminary injunction ordering the student’s reinstatement to the squad, the trial court ultimately ruled in B.L.’s favor, determining that there was no substantial disruption at the school. Further finding that the discipline violated B.L.’s First Amendment rights, the court awarded nominal damages, attorneys fees, and ordered the school to expunge the discipline from her record. The decision was upheld on appeal, with an added pronouncement that schools within the Third Circuit were not free to discipline for off-campus speech, which was partially defined in the opinion as “speech that is outside school-owned, -operated, or -supervised channels.”

The court went on to conclude that, since the speech here occurred off campus, the standard handed down in the oft-referenced case of Tinker v. Des Moines Independent Community School District (speech that materially disrupts classwork or involves substantial disruption or invasion of the rights of others) did not apply. This very narrow reading of Tinker may have prompted the U.S. Supreme Court to accept review to clarify, among other things, the application of the Tinker standard to student speech that occurs off campus.

In its June 23, 2021 opinion delivered by Justice Breyer, the Supreme Court held that school districts may have a special interest in regulating some off-campus student speech. However, that interest primarily exists only when the Tinker test is applied and in so applying finds that the student speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others. However, unrestricted regulation of any speech that may relate to the school is unauthorized. In this case the Court opined that the student’s speech was not disruptive to the school environment and therefore was subject to First Amendment protection.

What this Means for Schools: While the media may portray this case as a victory for the student, in reality it is largely a carefully worded affirmation that, especially in the present technology age, actions away from school may have a disruptive impact at school. Yet the onus remains with the school to show how that disruption is manifested. The Court also affirmed a school’s authority to apply discipline to extracurricular activities only. Districts are advised to review their board policies, codes of conduct and extracurricular guidelines for the necessary support of disciplinary consequences and notice of the possibility of corrective action for violations of school rules.

Mahanoy Area School District v. B.L. ( Slip Opinion No 20-255)

Ennis Britton Proudly Welcomes Kyle Wheeler

Ennis Britton is delighted to announce that Kyle Wheeler, Esq., has joined the law firm.  In addition to practicing in all areas of school law, Kyle joins the Special Education and Construction and Real Estate Practice Groups of Ennis Britton.

Kyle is not new to the firm or our clients, having clerked with Ennis Britton since Summer, 2018 and throughout law school. As a law clerk, Kyle was exposed to multiple aspects of school law, including public and student records, legislation, special education, labor and employment, and civil rights. A strong writer, Kyle has researched and drafted legal memoranda, presentations and articles on unique questions of law and the impact of legislative and legal trends of public education. 

Kyle is a 2020 graduate of Cleveland Marshall College of Law with the distinction of cum laude. He earned his undergraduate degree in Business Operations from The Ohio State University. Due to the COVID-related delay in the administration of the bar examination, Kyle was registered to practice law and certified for “Practice Pending Admission” (PPA) prior to his regular admission to the state bar. During his PPA, Kyle successfully argued a case in state court, and attended mediation proceedings and other litigation conferences. 

Originally from Brunswick, Ohio, Kyle works in the Cleveland office of Ennis Britton. In his free time, Kyle enjoys golfing. 

National Initiative to Address Sexual Assault in Schools

Last week, U. S. Secretary of Education Betsy DeVos announced plans for a new compliance review and data collection initiative to address the rise in sexual assaults in K-12 education, this time targeting the actions of adult employees toward school students.  Among other things, the new initiative will implement provisions to prohibit public schools from reassigning employees accused of sexual assaults against students. 

Asserting that “No parent should have to think twice about their child’s safety while on school grounds,” DeVos directed the Office for Civil Rights to lead the initiative to examine sexual assault through several avenues, including the following:

  • OCR will focus on raising public awareness of the issue of sexual assault in K-12 schools, including making information on the issue available to educators, school leaders, and families.
  • OCR will conduct nationwide compliance reviews to examine how sexual assault allegations are handled under Title IX, with special emphasis on sexual incidents involving teachers and school staff. It will then become OCR’s job to work with districts to correct any compliance concerns.
  • OCR will conduct Data Quality Reviews (DQRs) of the sexual offenses data including sexual assaults, as submitted by school districts through the Civil Rights Data Collection (CRDC). In doing so, OCR will partner with the National Center for Education Statistics (NCES) and support districts in accurately recording and reporting incidents of sexual assault/sexual offenses through the CRDC.
  • For the 2019-2020 data collection, OCR has proposed collecting more detailed data on sexual assault. The proposed data collection includes incidents perpetrated by school staff or school personnel.  If adopted, the inclusion of this data would make the CRDC collection the first universal collection to gather such data systemically for individual schools.

This is the second nationwide initiative announced by the OCR within the last 13 months.  The present announcement comes in the wake of OCR’s recent resolution of two sexual harassment complaints involving Chicago Public Schools. However, Secretary DeVos insists the issue is widespread, stating “We hear too often about innocent children being sexually assaulted by an adult at school.”  Her declaration is supported by 2015-2016 CRDC reports recording more than 9,700 incidents of sexual assault, rape or attempted rape in public elementary and secondary schools.  The Agency additionally reports the problem is “fifteen times greater than a decade ago.” The reporting as referenced does not break down the number of adults directly involved in such allegations but relate to a companion announcement by the Office of Elementary and Secondary Education that it will publish an extensive study on state and local measures to prevent the “pass the trash” phenomenon in dealing with adults accused of sexual offenses against students.