by Erin Wessendorf-Wortman | Jun 25, 2014 | Student Education and Discipline
The U.S. Supreme Court issued an opinion on two cases on June 25, 2014, which prohibits law enforcement from searching the contents of cell phones without warrants. Riley v. California, 573 U.S. _____ (2014); U.S. v. Wurie, 573 U.S. _____ (2014). In these cases, police officers did not have probable cause to search the individuals’ cell phones, but instead relied on the exception law enforcement has of a search incident a lawful arrest. This exception allows police officers to conduct a search of a person and area within his/her immediate control during an arrest for the safety and protection of law enforcement personnel and for the preservation of evidence.
However, when considering whether cell phones could be searched without a warrant utilizing the exception of a search incident to a lawful arrest, the Court focused on the prevalence of cell phones in modern society and the vast quantities of personal information stored on cell phones. The Court even indicated that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The Court found that the vast amount of personal information stored on cell phones, and the inherent privacy of that personal information, outweighed any of the government’s concerns for police officer safety or protection of data. It reasoned that digital data on a cell phone could not itself be used as a weapon to harm an arresting police officer or to effectuate the escape of the arrestee. Further, the Court indicated that any concern of data destruction, either through remote wiping or data encryption, could be alleviated through a police department’s own means of data recovery once a warrant was obtained. In the end, the Court indicated while “[p]rivacy comes at a cost”, cell phones are still capable of being searched, once warrants are appropriately acquired.
While these cases only apply to law enforcement officers, it will have an impact in school districts looking to involve their school resource officers in searches of students’ cell phones. School resource officers should not be searching students’ phones without warrants given this ruling from the U.S. Supreme Court. However, these cases do not impact how school administrators conduct investigations and searches related to school discipline. School districts are still held to a reasonableness standard when conducting searches of students: the search must be justified at inception and reasonable in scope.
If a school administrator believes that a student has violated school policy(ies) through utilizing his/her cell phone while on school campus, the school administrator may search the student’s cell phone for evidence of the violations. However, school administrators must use caution when searching a student’s phone. For example, a student simply possessing a cell phone on school property in violation of Board policy will not permit an administrator to search the student’s cell phone. If a student has a cell phone out in his/her lap during a test, this may permit an administrator to search the student’s phone for evidence of cheating in appropriate and reasonable areas of the phone. If evidence of a criminal violation is believed to be found on a student’s cell phone during an administrator’s search, the evidence should be turned over to the school resource officer after the search has been conducted.
by Jeremy Neff | Jun 2, 2014 | Board Policy & Representation, Student Education and Discipline
As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.
In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.
While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.
For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.
Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.
By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.
Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.
by Jeremy Neff | Dec 30, 2013 | Special Education, Student Education and Discipline
It is probably not high on your list of New Year’s Resolution priorities, but special education staff at Ohio public schools should add this one: Send even more prior written notice forms.
For over a year, the Ohio Department of Education (ODE) had been floating the idea of changing the Individuals with Disabilities Education Act (IDEA) requirements regarding prior written notice (PWN) when parents agree with the Individualized Education Program (IEP) developed during an annual review meeting and the IEP involves a change in placement. State regulations in effect over the past several years did not require formal PWN on the PR-01 form in this circumstance. Rather, the IEP document itself served as PWN. On December 20, 2013 ODE announced an immediate change requiring PWN on the PR-01 form to be sent for all IEPs that involve a change of placement (including those that have parental consent).
Presumably the thinking behind the prior interpretation was that there is no need to send a notice to a parent informing her that the IEP she just agreed to is going to be implemented. It appears that the change in interpretation is to align with federal regulations that require PWN whenever a change in placement is proposed. There is an ongoing review of Ohio’s IDEA regulations, and once finalized the new regulations will incorporate this change. However, ODE has been clear that it will immediately be enforcing the change. Whether slight changes in IEP services constitute a change of placement is not always clear. Given this new requirement, it is best to err on the side of caution by sending too many PR-01 instead of too few.
ERF encourages school districts to take steps to minimize potential misunderstandings regarding PWN. The PR-01 form can be intimidating, and some parents mistakenly think it means a district is attempting to harass or provoke them. Some of the potential fallout of the decision to require even more PR-01 can be avoided by discussing PWN, the PR-01 form, and when they are required with parents prior to needing to use them in relation to an IEP. For example, a district could make it a practice to show a blank PR-01 form to a parent at the time a child is initially identified and to explain the purpose and requirements for the use of the form.
We have often said that PWN cannot be sent too often. With this new interpretation ODE has brought new meaning to that advice. Please contact a member of ERF’s Special Education Team with questions about this new requirement.
by Jeremy Neff | Dec 23, 2013 | General, Special Education, Student Education and Discipline
The federal Office for Civil Rights (OCR) issued a “Dear Colleague Letter” on January 25, 2013, that seemed to require school districts to offer alternative sports options for children with disabilities. OCR is charged with enforcing Section 504, among other laws. The letter suggested that wheelchair basketball, for example, might need to be offered when a wheelchair-bound child cannot be accommodated in the existing basketball program. Controversy ensued, and ERF advised clients that there is no requirement to create new activities to provide opportunities for those who cannot be reasonably accommodated in existing activities. This month OCR issued a letter that confirms ERF’s earlier advice. OCR’s letter explains that it does not believe that Section 504 requires the creation of new activities for children with disabilities (essentially rescinding its earlier guidance).
In its earlier letter, OCR wrote that:
“Students with disabilities who cannot participate in the school district’s existing extracurricular athletics program – even with reasonable modifications or aids and services – should still have an equal opportunity to receive the benefits of extracurricular athletics. When the interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular athletic program, the school district should create additional opportunities for those students with disabilities.
“In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These athletic opportunities provided by school districts should be supported equally, as with a school district’s other athletic activities.”
It went on to explain that when there are not sufficient wheelchair bound athletes to support an activity a district could work with other districts to form a joint team, form co-ed teams, or encourage non-disabled students to participate. Beyond the logistics and time required by this mandate, districts were alarmed by the cost of funding new programs even as they are being forced to cut funding for existing programming.
With its recent letter OCR unequivocally steps back from the requirements set forth in its prior letter. It writes that while a district might choose to create new programs for children with disabilities, “it is not OCR’s view that a school district is required to do so.” Pressure from school districts and the organizations that work for and support them clearly had a significant role in forcing OCR to rethink its earlier letter. In fact, the letter earlier this month was in response to a request by the National School Boards Association for clarification. The new letter is being reported here not only because it puts to rest any notion that districts must create separate sports for children with disabilities, but also because it shows that school districts can effectively lobby for change. At a time of unprecedented new requirements and unfunded mandates this is an important lesson.
Both OCR letters on extracurricular activities are also a good reminder about the importance and scope of Section 504. This law is meant to “level the playing field” for children with disabilities. It applies to a broad range of disabilities – far more than those covered by IDEA. It also applies to all services, activities, and benefits offered by a school district. Regarding extracurricular activities, a qualified child with a disability has a right to reasonable accommodations to allow the child to try out for and participate in sports. Precisely what this means depends on the facts of each case, but suffice it to say that schools need to be creative about developing, and committed to providing, equal opportunities to children with disabilities both in the classroom and on the playing field. Please contact a member of our Special Education Practice Team for assistance in complying with Section 504.
by Pamela Leist | Sep 29, 2013 | Student Education and Discipline
The Ohio Department of Education (ODE) recently published additional guidance to clarify certain provisions of the Third Grade Reading Guarantee. ODE’s guidance addresses minimum achievement levels for promotion to fourth grade, summer and midyear promotion of students to the fourth grade, and a description of the Ohio Achievement Assessment (OAA) alternatives.
Promotion Requirements
According to ODE, for the 2013-2014 school year, a student must obtain at minimum score of 392 on the 3rd grade OAA to be promoted to the 4th grade, unless the student qualifies for one of the following exceptions:
- A limited English proficient student who has been enrolled in U.S. schools for less than three full school years and has received less than three years of instruction in an English as a second language program;
- A special education student whose IEP specifically exempts him/her from retention under the Third Grade Reading Guarantee;
- Any student who has received intensive remediation for two years and was previously retained in kindergarten through the third grade; or
- A student who demonstrate reading competency on a Reading OAA Alternative approved by ODE.
OAA Alternative
OAA alternative assessments will be aligned to the end of the year 3rd grade reading standards. The required score on these alternate assessments will be comparable to, or more rigorous than, the OAA proficient score. ODE will release a list of available OAA alternative assessments in February of 2014. All districts must administer alternative assessments upon parental request for any student who scores below the required cut score on the Spring OAA. In addition, districts may continue to administer OAA alternatives through the summer.
Summer Promotion
If a student fails to meet the required cut score on the Fall OAA, Spring OAA, and OAA alternative, the student should continue to receive intense reading intervention during the summer. ODE will provide a Summer OAA for districts to administer to students who have failed to meet the required cut score for promotion to the fourth grade. If a student can acheive the minimum required score of 392, the student shall be promoted to the fourth grade but should continue to receive reading intervention.
Midyear Promotion
A district is required to develop procedures for midyear promotion to fourth grade for any student who is retained in third grade but who later demonstrates required grade level reading proficiency. In addition, the law mandates a district provide instruction commensurate with student achievement levels in a specific academic ability field if a student who has been retained demonstrates proficiency in that field. However, ODE suggests that if a district believes a student may be eligible for midyear promotion, the district should provide instruction at the fourth grade level in all subject areas. ODE recommends that districts include in their procedures a process of assessment to determine a student’s proficiency in academic content to meet the requirements listed above. The district should also include specific procedures for provision of academic supports when a student is promoted to fourth grade midyear.
Reference:
A full version of ODE’s guidance on “Student Promotion and the Third Grade Reading Guarantee” can be accessed by clicking here.
by Gary Stedronsky | Dec 27, 2012 | Student Education and Discipline
Over the past several years increased attention has been paid to head injuries and concussions in sports. The NFL seems to capture most of the headlines in this area; however, head injuries can occur in any sport and at any level. Last week, Governor John Kasich signed House Bill 143, which is designed to protect youth athletes who suffer concussions.
The Bill requires parents to submit a signed form acknowledging receipt of a concussion and head injury information sheet that will be created by the Department of Health. Students are prohibited from practicing or competing in interscholastic athletics until this form has been submitted. Districts must also require all coaches and referees to hold a pupil-activity permit issued by the State Board of Education (referees may satisfy the requirement through specified alternative training programs). The Bill also requires the State Board of Education to require completion of brain trauma and brain injury management training prior to issuing pupil-activity permits
An important component of the Bill is the requirement that student-athletes be removed from athletics when exhibiting signs, symptoms, or behaviors consistent with a concussion or similar head injury. Once a student is removed by a coach or referee, the student is not allowed to return to practice or competition for at least 24 hours and until assessed and cleared for return by a physician. The physician must provide written clearance that it is safe for the student to resume participation.
Also of importance is the immunity from liability that is provided by the Bill. School authorities, employees, and volunteers (including coaches and referees) are protected from civil liability for injury, death, or loss that arises from providing the services or duties required by the Bill, unless their act or omission constituted willful or wanton misconduct.
Under the Bill, the Department of Health is required to create a concussion and head injury information sheet for sports participants and to provide a link on its website to one or more free online concussion training programs.
