by Jeremy Neff | Mar 12, 2020 | COVID-19 (Coronavirus), General, Special Education, Student Education and Discipline
UPDATE (3/12/20 at 6:20 PM): At 6 PM on March 12 the US Department of Education released new guidance on special education and COVID-19 that is available here.
In the past 48 hours it seems as if the already rapidly developing story of COVID-19, or novel coronavirus, has accelerated even more. With major spectator events being postponed, universities and colleges moving to online instruction, escalating infection rates around the globe, and the declaration of a pandemic by the WHO it seems inevitable that at least some Ohio public school districts will experience extended closures. These closures will raise important questions both in terms of employment and education. Given the unique and unprecedented challenges involved, we encourage you to work with legal counsel in real time to ensure effective and compliant responses.
What flexibility can we expect in meeting federal
requirements for education?
We can look to official guidance issued during the 2009 H1N1 pandemic to get a sense of what we might expect with COVID-19. On December 1, 2009, the US Department of Education (ED) issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, on other Grantee and Program Participants in Responding to Pandemic Influenza H1N1 Virus” (“SEA” refers to State Education Agencies like ODE, and “LEA” refers to Local Education Agencies like individual school districts). The guidance document discussed in generalities the willingness of the US Department of Education to offer flexibility regarding the requirements of the Elementary and Secondary Education Act (now referred to as ESSA). It is reasonable to assume that flexibility will likewise be offered as COVID-19 has begun to force school closures. We will continue to update clients as specific guidance is issued.
Specifically regarding students on IEPs and 504 plans,
what services must we provide during a closure?
We are receiving many calls related to the delivery of
instruction during possible closures, and specifically regarding the delivery
of instruction to students with IEPs and 504 Plans. Here is what ED said on
this topic in 2009 regarding H1N1:
Must an LEA continue to provide FAPE to students with
disabilities during a school closure caused by an H1N1
outbreak?
The IDEA, Section 504, and the ADA do not specifically
address a situation in which elementary and secondary schools would be closed
for an extended period of time because of exceptional circumstances; however,
LEAs must be sure not to discriminate on the basis of disability when providing
educational services.
If an LEA closes its schools because of an outbreak of H1N1 that disrupts the functioning or delivery of educational
services, and does not provide any educational services to the general student
population, then an LEA would not be required to provide services to students
with disabilities during that same period of time. Once school resumes,
however, a subsequent individualized determination is required to decide
whether a student with a disability requires compensatory education to make up
for any skills that may have been lost because of the school closure or because
the student did not receive an educational benefit.
If an LEA continues to provide educational opportunities
to the general student population, then it must ensure that students with
disabilities also have equal access to the same opportunities and to the
provision of FAPE, where appropriate. SEAs and LEAs must ensure that, to the
greatest extent possible, each student with a disability receives the special
education and related services identified in the student’s individualized
education program (IEP) developed under IDEA, or a plan developed under Section
504.
There is no guarantee that ED would issue the same guidance
today for COVID-19, but given the parallels between the concerns in 2009 and
those today, this 2009 guidance is a reasonable starting point for planning a
compliant response to a potential school closure for COVID-19.
What are the special education implications of providing
online instruction during a closure?
It is notable that the approach that creates the most risk
for a school district, per the 2009 ED guidance, is to offer online instruction
during a closure. The reason this can become a problem is that students with
disabilities will need to be offered accessible instruction that meets their
unique needs. It is difficult to imagine how a district might provide “regular
prompting,” a common accommodation, to a child who is sitting alone at a
computer. And what of the child who does not have a computer or internet
access? Per the 2009 ED guidance it would be more legally compliant to not
offer any instruction at all than to offer online instruction without an
adequate plan for students with special needs.
This does not mean that online instruction should be ruled out. It just means that if online instruction is used there will need to be a plan for how this will serve students with disabilities. You should also consider the possibility of not immediately implementing online instruction. Given the mild winter and the fact that most schools significantly exceed minimum hours of instruction on their regular calendars, it is likely that a few days of closure (without online instruction) will not violate state minimum hours law. Even if a closure is longer lasting, pausing before implementing online instruction could provide important breathing room for student services to plan for serving students with disabilities.
Will we be required to provide compensatory education to
students on IEPs and 504 plans following a closure?
The 2009 ED guidance points to the fact that a discussion of
whether compensatory education may be required should follow any period of
closure regardless of what services are provided. Unless a child is already
assigned to home instruction at the time of the closure, any set of services
during a closure will in some ways not be in compliance with the child’s IEP.
While proactive amendments to account for anticipated closures could minimize
the risks, it would be ambitious for most districts to secure consent for
amendments for all IEPs. A more realistic approach could involve identifying
students who are most at risk of significant regression during a closure, and
working with parents to develop a plan to minimize that regression. Not only is
this educationally sound, it would be an important part of any legal defense
related to IDEA or Section 504 complaints. Once school resumes after a closure
you can revisit whether other compensatory services are appropriate.
Please continue to follow the Ennis Britton blog for updates
on COVID-19, and do not hesitate to call any of our attorneys with questions or
concerns.
by Ryan LaFlamme | Nov 19, 2019 | Board Policy & Representation, General, School Management, Student Education and Discipline
A dispute over
the disclosure of student records has led to the Court of Appeals for Ohio’s
Second Circuit to analyze whether a student’s right to privacy in education
records extinguishes upon death.
Both federal
and state laws protect the confidentiality of student education records and
personally identifiable information. The Family Educational Rights and Privacy
Act (“FERPA”) protects against the disclosure of education records without the
prior written consent of the parent or guardian of the student. Education records
are defined by the Act as “those records, files, documents, and other materials
which (i) contain information directly related to a student; and (ii) are
maintained by an educational agency or institution or by a person acting for
such agency or institution.” The right to consent to the disclosure of student
records transfers to a student upon reaching the age of 18, unless the student
remains a dependent of their parents.
R.C. 3319.321
also provides protection for student information. This statute is broader in
its scope, forbidding the disclosure of any personally identifiable student
information other than directory information.
The request at
issue surrounded a former student who committed a mass shooting in August of
2019, killing 9 people and injuring 27. The shooter was killed by law
enforcement officials at the scene. The Associated Press, among other media
outlets, made requests to the school for records of the shooter, particularly
discipline records. The school released only directory information, citing to
the privacy protections of FERPA and R.C. 3319.321.
The media
filed a lawsuit asking the Court to force the school to release the requested
records. The media alleged that while a student’s right to privacy protections
under the applicable laws transfers to the student into adulthood, there should
be an exception that the right to privacy in this regard ceases upon
death.
The Court
found the analysis inapplicable due to the school’s obligations under the laws
in addition to the individual’s privacy rights conferred by the laws. The two
are simply not comparable. The Court, noting that neither FERPA nor R.C.
3319.321 contains an exception for the death of a student, declined to create
one from the bench.
State
ex rel. Cable News Network, Inc. v. Bellbrook-Sugarcreek Local Schools,
2019-Ohio-4187
by Bronston McCord | Sep 5, 2019 | Board Policy & Representation, General, School Management, Student Education and Discipline
On August 9, 2019, a federal judge in Virginia ruled in favor of a transgender student in holding that a school district’s policy violated his rights under Title IX and the Equal Protection Clause. The Grimm v. Gloucester County School Board case stemmed from a school district’s policy requiring students to use restrooms and locker rooms that corresponded to their “biological genders.” The district provided alternative facilities for transgender students.
The court initially ruled that claims of discrimination on the basis of transgender status for gender-stereotyping are actionable under Title IX. The court further found that denying Grimm the ability to access the facilities corresponding with his gender identity were not only actionable but did in fact result in a violation of Title IX and the Equal Protection Clause.
The Board argued that it had not engaged in discrimination and that Grimm had not suffered any harm as a result of its policy. The court found this argument to be unconvincing. The court determined that the district’s policy subjected transgender students to discriminatory treatment by excluding them from places similarly situated students had access to. Further, Grimm did suffer emotional harm due to the fact he was unable to comfortably access restrooms at school. Grimm was further subjected to harm when the school district refused to update his school records in order to reflect his male identity. Failure to do so has negated his male identity and marked him different than other males any time he provided a copy of his transcript to another entity.
This ultimately led the court to grant a permanent injunction against the school district’s restroom and locker room policy. The injunction further awarded Gavin nominal damages and ordered the school district to change his school records to conform with his gender identity.
While the decision from the Fourth Circuit Court of Appeals is not controlling on Ohio school districts, the Sixth Circuit did rule on a very similar case back in 2016. In Dodds v. United States Department of Education, the Sixth Circuit Court of Appeals agreed with a lower district court decision and determined that an eleven-year-old transgender girl had a strong likelihood of success in her claims against the school district and should therefore be allowed to use the school restrooms conforming with her gender identity.
It is important to note the decision in Dodds relied on guidance from the United States Department of Education that has since been rescinded. The current position of the USDOE is that they will not accept any complaints alleging a transgender student was denied access to restrooms and locker rooms and will only accept complaints of harassment or bullying for failing to conform to sex-based stereotypes. Thus, in light of this new guidance, it remains unclear how an Ohio court would rule on this issue today.
What this means for your district:
The issue of providing accommodations to transgender students remains unclear and is a matter that will doubtless be subject to further litigation before any clarity is provided. Districts should proceed with caution when faced with these issues. For additional advice on handling requests for accommodations for transgender students, please contact an Ennis Britton attorney for assistance.
by Jeremy Neff | Jun 24, 2019 | General, Legislation, Student Education and Discipline
The use of restraint and seclusion in schools continues to be a high priority for state and federal policy makers. Ohio’s first regulations specifically addressing restraint, seclusion, and positive behavior intervention and supports took effect in 2013 as Ohio Administrative Code (OAC) 3301-35-15. In June 2018, the General Assembly passed House Bill (HB) 318, also known as “the SAFE Act”. This law addresses a variety of student discipline issues, including a requirement to rewrite Ohio’s restraint and seclusion regulations.
Ohio Administrative Code 3301-35-15 was due for review by August 2018, but the process has not been completed. HB 318 set a deadline for revision of OAC 3301-35-15 by early February 2019. Again, no revisions were made. However, work is ongoing at the Ohio Department of Education (ODE) and various stakeholder groups are being presented with draft rule revisions this summer. It is anticipated that in the coming months, there will be a proposed rule presented for public comment and consideration by the State Board of Education.
In the meantime, existing requirements for the use of restraint and seclusion remain in place. This includes absolute restrictions on certain practices, and significant data tracking and reporting requirements. The summer “break” is a good time for administrators to review existing training programs, plan for which staff members may require additional training due to student assignments and program changes, and review reporting data for the recently completed school year to determine if there are any patterns or gaps that need to be addressed.
While the use of restraint and seclusion generally should be rare, consistent reports of zero incidents may raise a red flag. A recent report from the federal Government Accountability Office (GAO) found that nine of the nation’s 30 largest school districts reported no incidents of restraint or seclusion in the last reported year (2015-2016). The GAO and U.S. Department of Education presume that such reports are inaccurate, with the GAO reporting that, “We are encouraged that Education recognizes the seriousness of this issue and the data quality issues it has allowed to persist when districts inappropriately and inaccurately report zero incidents of restraint and seclusion.”
In addition to whatever new requirements might be rolled out by the U.S. Department of Education to address its concerns, long-proposed federal legislation is expected to be reintroduced later this year. The bill, called the “Keeping All Students Safe Act,” is likely to overlap significantly with Ohio’s restraint and seclusion regulations.
by Ryan LaFlamme | May 1, 2019 | General, Student Education and Discipline
A Federal District Judge recently ruled that a charter school dress code policy which required girls to wear skirts and prohibited girls from wearing pants or shorts, violates the equal protection clause of the U.S. Constitution. Many challenges in the past have rested on First Amendment grounds regarding freedom of expression. However, this case was brought on a theory of gender discrimination.
The Plaintiffs argued that the girls suffered tangible disadvantages due to the policy. The court found that the Plaintiffs established that “the girls are subject to a specific clothing requirement that renders them unable to play as freely during recess, requires them to sit in an uncomfortable manner in the classroom, causes them to be overly focused on how they are sitting, distracts them from learning, and subjects them to cold temperatures on their legs.”
The Defendant, the Charter Day School, argued the dress code was designed to garner mutual respect between the boys and the girls, particularly in that the skirts represented visual cues to promote respect between the two sexes. Striking down the policy, the school argued, would remove those visual cues and hinder a sense of respect for the opposite sex. The Court noted that even if these were legitimate interests of the state, the school failed to show how the policy advanced such interests.
The Court further noted that school dress code policies have been upheld by numerous courts and that the state does have legitimate interests in the grooming and dress of students attending schools supported by the state. However, these interests must be addressed in a uniform, gender-neutral way that does not penalize a student simply for being one sex or the other.
by Giselle Spencer | Mar 13, 2018 | Student Education and Discipline
In 1965, a group of siblings and a family friend in Des Moines, Iowa, decided to wear black armbands to school in protest of the Vietnam War. When the principals of their schools became aware of the plan, they developed a policy prohibiting such protests – a policy that the students chose to ignore. As a result, Mary Beth Tinker, her brother, and a high school friend were suspended from school. This is the backdrop of one of the most famous student free-speech cases in American history: Tinker v. Des Moines Independent Comm. Sch. Dist., 393 U.S. 509 (1969). Indeed, most school administrators can quote a prominent observation of the Supreme Court as it relates to speech: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In light of the current national movement of planned student protests around the country, this case provides important considerations on the authority of school officials to censor student expression. While the High Court held that expression in certain cases may be suppressed, it cautioned school officials that they must be able to show that their action “was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.”
As student protests on a national level gain steam and momentum, school officials must plan a response that is viewpoint neutral and measured in light of potential school rule infractions. Even when a student’s viewpoint is not unpopular, districts should consider imposing appropriate discipline if only to neutralize future viewpoint discrimination claims from students who wish to engage in speech or leave campus for a less popular reason. When student speech is coupled with other student expression such as walking out of class in protest of gun violence in schools, school officials maintain their obligation to adhere to student attendance laws, as any time away from school is time away from instruction and may result in truancy or disciplinary consequences. However, districts must remain aware that they can no longer suspend students for attendance violations. Disciplinary consequences are best reserved for the act of cutting class or causing substantial disruption to the educational environment.
