January 2012
1/09/2012
Address any potential noncompliance with the Lead Renovation,
Repair and Painting (“LRRP”) Rule now or the U.S. Environmental Protection Agency may impose penalties of up to $37,500 per violation per day! The U.S. Environmental Protection Agency has recently announced that enforcement of the LRRP Rule will be one of its top priorities in 2012. In this new Hogan Lovells memorandum, find out what the LRRP Rule requirements are and how your school district can and should manage the dangers of lead when renovating, repairing or painting your school facilities.
October 2011
10/11/2011
As a companion piece to SLRMA’s popular FLSA Self Audit Checklist, use this self-audit checklist to assist in determining the exempt or non-exempt status of substitute teachers under FLSA.
September 2011
9/9/2011
When does a procedural error becomes so substantive that the Individualized Education Plan your District created violates the Individuals with Disability Education Act? In this case from the 8th Circuit Court of Appeals governing Nebraska and the other central plains states, the Court addresses when the impact of procedural errors in drafting an IEP can result in a violation of IDEA and subject your school to liability and attorneys fees.
August 2011
8/10/2011
Does bullying or harassment of a student constitute a Title IX violation? Find out what actually constitutes a Title IX violation and what your school district can look for to distinguish between a Title IX violation and common bullying conduct from this 8th Circuit Court of Appeals case.
July 2011
07/1/2011
With complaints under the Fair Labor Standards Act on the rise,
SLRMA updated our popular FLSA Self Audit Checklist. This popular self-audit checklist has been updated with practical comments and is intended for use by school district employers who wish to examine their pay practices.
June 2011
06/28/2011
When is your school district a “prevailing party” entitled to fees when successfully defeating a claim under the Individual with Disabilities Education Act? In this decision, District of Columbia Court Appeals determined it was not a “prevailing party” despite it successfully defeating an IDEA Claim
06/17/2011
Is your school district aware of the procedural and substantive requirements under the Individual with Disabilities Education Act when it must formulate an Individual Education Plan? The 8th Circuit Court of Appeals for Missouri, Arkansas, Nebraska, the Dakotas, Iowa and Minnesota in this recent case outlines the elements of a such a plan for compliance with IDEA.
06/13/2011
Does your school have the authority to punish off-campus speech made by students on social network sites? In a pair of decisions by the Third Circuit Court of Appeals, the court addressed how the First Amendment applies to such speech and whether a school can prevent such speech.
May 2011
05/18/2011
Do you know when it is appropriate and not appropriate to control student speech at your school? In this recent decision, the Second Circuit Court of Appeals in New York determined that a high school appropriately prohibited the publication of a cartoon in its newspaper and did not violate the students’ First Amendment rights.
April 2011
04/11/2011
Missouri Federal Appellate Court finds teacher cannot use defense of qualified immunity against allegations she maliciously violated the equal protection rights of an educationally disabled student. Read now how treating students differently can lead to trouble in the court room.
March 2011
03/10/2011
Are your employees also acting as school sport coaches which may subject your school to potential liability under the U.S. Fair Labor Standards Act? The Federal Appellate Court seated in Virginia addresses the parameters of a school employee’s entitlement to overtime compensation when they are also coaching a school team. Find out how this case impacts your school district’s potential overtime liability for its coaching staff.
03/01/2011
Is your school district prepared for dealing with the bullies in your schools? With bullying (including cyberbullying) incidents on the rise, school districts are becoming increasingly liable for these incidents. Log in and download the new Anti-Bullying and Anti-Harassment Checklist to help prevent your school from becoming a victim of bullies.
February 2011
02/11/2011
The Federal Court of Appeals in Arizona held that school districts are entitled to attorney fees in IDEA suits brought by parents if such suits are frivolous, unreasonable or without foundation. Nevertheless, fees were not awarded in this case because lack of success on the merits is not frivolous and parent anger is not an improper motive on which to base an award of attorney fees.
January 2011
01/25/2011
U.S. Supreme Court Recognizes Retaliation Claims by Spouse of Discrimination Victim.In a unanimous decision, the U.S. Supreme Court held that an employee discharged in retaliation for a spouse or fiancé asserting a discrimination claim against the employer may bring a claim against that employer under Title VII.
December 2010
12/08/2010
The federal government is investigating compliance with ELL requirements. Use the new ELL checklist to determine your district’s compliance.
November 2010
11/12/2010
IDEA presents procedural challenges when a school is faced with discipline problems from a child with disabilities. In this case, the court addressed these issues and outlined the procedural routes that schools may take and be consistent with the Constitution.
October 2010
10/07/2010
Federal Appeals Court holds Illinois Mandatory moment of silence law to be Constitutional. Illinois school teachers now required to have a moment of silence during the day.
September 2010
09/27/2010
On September 27, 2010, the Ninth Circuit invalidated a federal regulation that has permitted school districts to hire teachers pursuing state certification through alternative certification programs like Teach for America or The New Teacher Project. Renee v. Duncan, No. 08-16661, 2010 WL 3733579 (9th Cir. Sept. 27, 2010). The Court held that No Child Left Behind of 2001 (“NCLB”) requires teachers to obtain full certification from the state before they may be considered “highly qualified.” Because NCLB provides that core subjects should be taught by “highly qualified” teachers, this ruling may prohibit school districts from employing teachers participating in alternative certification programs before they have completed the program and obtained certification.
August 2010
08/02/2010
In the case of Marshall Joint School District No. 2 v. C.D. (7th Cir. Aug. 2, 2010), a Seventh Circuit three-judge panel ruled that an Administrative Law Judge applied the wrong legal standard in concluding that a student suffering from Ehlers-Danlos Syndrome needed special education services because his condition created pain and fatigue which could adversely affect his performance at school. The Seventh Circuit opined that the correct legal standard is whether the student’s condition actually did adversely affect his performance.
July 2010
07/02/2010
In the case of Comer v. Scott (5th Cir. July 2, 2010), the Fifth Circuit ruled the Texas Education Agency’s policy requiring staff to remain neutral as to whether creationism should be taught does not have the primary effect of advancing religion and therefore does not infringe upon First Amendment free speech rights. The court ruled that the neutrality policy served to preserve the role of the Texas Education Agency in gathering and compiling curriculum recommendations for the Texas Board of Education’s use in its curriculum review meetings.
June 2010
06/28/2010
In the case of CLS v. Martinez (U.S. June 28, 2010), the United States Supreme Court upholds a public law school’s policy limiting official recognition of student groups to those organizations holding themselves out as open to the entire student body. In a 5-4 vote, the Court held that requiring student groups to comply with an open eligibility policy is a “reasonable, viewpoint-neutral condition on access to the student-organization forum.”
May 2010
05/25/2010
In the case of C.H. v. Cape Henlopen School District (3rd Cir. May 25, 2010), the Third Circuit ruled that a school district’s failure to provide the parents of a learning-disabled student with ten days notice of a scheduled individualized education program (IEP) meeting did not impede the parents’ ability to participate in the planning process for a free appropriate public education under the Individuals with Disabilities Act. The Third Circuit also ruled that the school district’s failure to have an IEP in place on the first day of the school year did not excuse the parents from continuing to meet in good faith to develop the IEP and did not entitle them to reimbursement from the school district for the tuition they had paid to a private school that the student had started attending in the meantime.
April 2010
04/22/2010
In the case of D.S. v. Bayonne Board of Education (3rd Cir. April 22, 2010), the Third Circuit ruled that a school board must reimburse the parents of a learning-disabled student for his private school tuition because his individualized education plan (“IEP”) failed to provide him with a free appropriate public education (“FAPE”), as required by the Individuals with Disabilities Act. Although the Third Circuit did not agree with the district court that the school board deprived the student of a FAPE by failing to respond in a timely manner to letters sent by the student’s parents, the court did rule that the student had been deprived of a FAPE because his IEP did not incorporate specific remedial techniques and provisions for accommodations that were proposed by teachers and evaluators who had worked with him. The Third Circuit also found that the district court should have given greater weight to the student’s standardized test scores than to his classroom grades because at the time the student had been in a class only with other special education students.
January 2010
01/14/2010
In the case of Weissburg v. Lancaster Sch. Dist., No. 08-55660 (9th Cir. Jan. 14, 2010), the U.S. Court of Appeals for the 9th Circuit ruled that the parents of a special education student who succeeded in having his disability reclassified from mentally retarded to autistic were a prevailing party under the Individuals with Disabilities Education Act (IDEA) entitled to attorneys’ fees, even though the student was provided with a free appropriate public education (FAPE) as required by IDEA. The Court also declined to extend the rule prohibiting attorney-parents from recovering attorneys’ fees where the student’s grandmother is representing the student.
December 2009
12/01/2009
In the case of Morgan v. Plano Indep. Sch. Dist., No. 08-40707 (5th Cir. Dec. 1, 2009), the U.S. Court of Appeals for the 5th Circuit has ruled that a Texas school district’s current policy imposing time, place and manner restrictions on the distribution of materials in school is constitutional. However, it found adoption of the current policy did not moot the student’s free speech claims under the prior policy, which prohibited the distribution of religious materials.
November 2009
11/10/2009
In the case of Alexander v. Opelika City Schools, No. 08-11014 (11th Cir, Nov. 10, 2009), an Eleventh Circuit three-judge panel has ruled that an African-American school district employee failed to state a valid Title VII claim for hostile work environment because the harassment he was subject to was not sufficiently severe or pervasive to alter the terms and conditions of his employment. Plaintiff filed suit against OCS in an Alabama federal district court, claiming he had been subject to a hostile work environment in violation of Title VII, based on his supervisor and two coworkers referring to him as “boy.” The Eleventh Circuit concluded that the conduct in question fell short of being sufficiently pervasive or severe for purposes of establishing a hostile work environment claim. It pointed out that while Alexander averred he was called “boy” constantly, he could cite only eight instances over a two-year period.
October 2009
10/06/2009
In the case of Ekstrand v. School Dist. of Somerset, No. 09-1853 (7th Cir. Oct. 6, 2009), the Seventh Circuit (IL, IN, WI) has ruled that a teacher suffering from seasonal affective disorder (SAD) stated a valid claim under the Americans with Disabilities Act (ADA) based on the school district’s failure to provide reasonable accommodations. The court found that reasonable accommodation requires “a great deal of communication” between the employee and employer. For an employee to establish a failure to accommodate, she must show the employer was responsible for the breakdown in communication: “[B]efore an employer can be held liable for a failure to accommodate, it must have knowledge of the employee’s “precise limitations.”
September 2009
09/03/2009
In the case of Darchak v. City of Chicago Bd. of Educ., No. 2732 (7th Cir. Sept. 3, 2009), the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) ruled that a former teacher of Polish decent presented sufficient evidence of discrimination on the basis of her national origin for her Title VII claim to go to a jury. However, the Seventh Circuit ruled that she had failed to state a valid claim for retaliatory discharge under state law or a valid federal claim for retaliation for exercise of her First Amendment free speech rights.
August 2009
08/14/2009
In the case of Anderson v. Douglas County Sch. Dist. 0001, No. 8-1682 (8th Cir. Aug. 14, 2009), the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD) ruled that Omaha Public Schools (OPS) did not retaliate against a former employee for exercising his free speech rights when it terminated him. The court concluded that his speech was not protected by the First Amendment because it was made within the course of his duties.
July 2009
07/02/2009
In the case of Milholland v. Sumner County Bd. of Educ., No. 08-5568 (6th Cir. July 2, 2009), the U.S. Court of Appeals for the Sixth Circuit (MI, Oh, KY, TN) ruled that a former middle school administrator in Tennessee, who suffers from arthritis, failed to prove school district officials transferred her to a teaching position because they regarded her as disabled within the meaning of the Americans with Disabilities Act (ADA). The Court found that there was “no evidence that the defendants thought Milholland’s impairment substantially limited her in her life activity of working in a broad class of jobs.” The Court further noted that Milholland continued to be employed as a teacher, which is in the same class of jobs as an administrator.
June 2009
06/25/2009
In the case of Safford Unified School District #1 v. Redding, No. 08-479 (U.S. June 25, 2009), the U.S. Supreme Court, in an 8-1 decision, has ruled that a strip search of an Arizona student violated her Fourth Amendment right to freedom from unreasonable search and seizure, but concluded that school officials were entitled to qualified immunity from her lawsuit because her rights were not clearly established at the time
June 2009
06/22/2009
In the case of Forest Grove School District v. T.A., No. 08-305 (U.S. June 22, 2009), the U.S. Supreme Court has ruled 6-3 that the Individuals with Disabilities Education Act (IDEA) authorizes reimbursement for private school placement of a special education student when a public school fails to provide that student with a free appropriate public education (FAPE), even if the student has not previously received special-education services from the public school.
June 2009
06/18/2009
In the case of Gross v. FBL Financial Services, Inc., No. 08-441 (U.S. June 18, 2009), the U.S. Supreme Court ruled in a 5-4 decision that a plaintiff bringing an Age Discrimination in Employment Act (ADEA) claim based on disparate treatment must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.
May 2009
05/12/2009
In the case of Plamp v. Mitchell Sch. Dist. No. 17-2, (8th Cir. May 12, 2009), the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD) has ruled that a South Dakota school district was not liable under Title IX for a teacher’s sexual harassment of a student, because no “appropriate” school official had knowledge of the teacher’s actions and the school district did not act with “deliberate indifference” once it became aware of those actions.
April 2009
04/28/2009
Should parents be able to receive private school tuition reimbursement, permitted by the Individuals with Disabilities Education Act (“IDEA”), without first attempting to receive special education or related services through a public entity? The 9th Circuit Court held, in the case of Forest Grove School District v. T.A. (9th Cir., May 4, 2008), that parents may obtain such reimbursement without attempting to receive special education services from a public school. The United States Supreme Court heard oral argument on April 28, 2009 on the Forest Grove case, and a decision is expected by the end of June. The Justices appear to be closely divided on the issue.
April 2009
04/20/2009
The Equal Educational Opportunities Act (“EEOA”) requires that school districts take “appropriate action” to overcome language barriers for English Language Learner (“ELL”) students. Since 2000, state lawmakers in Arizona have been struggling to develop a school funding system that will provide adequate ELL funding in compliance with the EEOA. The United States Supreme Court heard oral argument in the case of Horne v. Flores, on April 20, 2009. That case covers two related issues: 1.) If the lower courts were using the correct facts and applying appropriate standards in determining whether Arizona’s 2006 funding bill was sufficient to grant relief from the District Court’s orders, and 2.) Whether developing an approved stated plan under the No Child Left Behind act is sufficient to satisfy the separate EEOA requirement. A decision is expected by the end of June.
March 2009
03/16/09
In 2003, the Texas legislature passed a law requiring school boards to provide one minute of silence each day following the pledge of allegiance. The parents of three public school children in Texas filed a complaint against the State alleging that the law was a violation of the Establishment Clause. After analyzing the statute under the Lemon test, the Court of Appeals issued a unanimous decision in Croft v. Perry (5th Cir., March 16, 2009) holding that a daily minute of silence in every public school does not violate the Establishment Clause. The Fifth Circuit noted that even though a statute must have a secular purpose, it does not need to have exclusively secular objectives. This decision continues the trend among Courts of Appeals in upholding moment of silence laws.
February 2009
02/05/2009
When a Florida school board decided to remove a book series about Cuba from their district’s libraries, a complaint was filed in federal court alleging violations under the First and Fourteenth Amendments. The 11th Circuit, in the case of ACLU v. Miami-Dad County School Board (11th Cir., February 5, 2009), ruled 2-1 that the school board’s decision to remove an educational book about Cuba did not violate the plaintiff’s rights. Instead, the court held that the school board was acting constitutionally when it decided to remove Vamos a Cuba because of factual errors.
January 2009
01/21/09
After a kindergarten student in Massachusetts was harassed by another student, the child’s parents did not feel the school took appropriate action and filed suit under Title IX for peer sexual harassment, as well as Section 1983. The U.S. district court dismissed all claims on the basis that the Section 1983 claim was unnecessary due to the comprehensive nature of Title IX. In Fitzgerald v. Barnstable Sch. Comm. (U.S., January 21, 2009), the U.S. Supreme Court overruled the lower courts decisions by holding that Title IX was not meant to be the sole mechanism for addressing gender discrimination in schools or a substitute for Section 1983 as a means of enforcing constitutional rights.
December 2008
12/09/2008
The U.S. Department of Education has made its final amendments to the Family Educational Rights and Privacy Act of 1974 “FERPA” rules. These amendments, which take effect on January 8, 2009, affect provisions that may require school districts to modify their policies with respect to certain privacy practices.
November 2008
11/20/2008
Under the No Child Left Behind Act (“NCLB”) school districts must assess whether schools under their jurisdiction are making adequate yearly progress. If after a number of years adequate progress is continually not achieved, NCLB requires the school district to notify parents of actions being taken to address the problem as well inform them of their options to transfer their children to another public school or obtain supplemental educational services. In Newark Parents Assoc., et al. v. Newark Public Schools (3rd Cir., November 20, 2008), the US Court of Appeals held that even if a school district fails to provide proper notice to parents as required by NCLB, the act provides no private right to sue.
October 2008
10/07/2008
In the case of M.A.L. v. Kinsland, (6th Cir. Oct. 7, 2008), the U.S. Court of Appeals for the Sixth Circuit (KY, MI, OH, TN) has ruled that a Michigan school district’s time, place, and manner restrictions on distribution of student’s pro-life materials in school did not violate a student’s free speech rights because those restriction were reasonable.
September 2008
09/03/2008
As the economy tightens and the mortgage crisis starts to hit home for school districts this Fall, it will be more important than ever that schools have a plan that comports with the federal requirements for serving the homeless student population. SLRMA and FLIC have teamed to form a special report, Serving Homeless Students Under McKinney-Vento: A District Self-Audit Guide. The self-audit addresses several important aspects of the homeless student population, including identifying students who may be transitory and without a permanent address, offering school choices to such students, providing appropriate transportation, and addressing special curriculum needs of this often under-served group. When the McKinney-Vento Homeless Assistance Act was made part of the No Child Left Behind Act in 2001, new responsibilities were placed upon school districts as these and other issues. As always, schools should confer with their district’s own counsel in order to confirm that their policies and procedures comply properly with both state and federal requirements as applied by local governments.
July 2008
07/28/2008
Even though school administrators have a “qualified immunity” which allows them to infringe on students’ privacy and constitutional rights when necessary for school safety and discipline, the Ninth Circuit Court of Appeals has held there are limits on that immunity, and that the strip search in Arizona’s Safford Middle School of an eight grade student rumored to be carrying drugs violated that student’s rights. Redding v. Safford Unified School District 1, (9th Cir., July 11, 2008).
July 2008
07/28/2008
Concerned parents felt that a new regulation promulgated by the U.S. Department of Education to clarify the No Child Left Behind Act might actually allow for an uncertified teacher to teach as a “highly qualified” instructor in accordance with the Act. The Northern District of California held that the regulation was not inconsistent with the Act, in the case of Renee v. Spellings, (N.D. Cal., June 17, 2008).
June 2008
06/25/2008
What First Amendment rights to free speech do your district’s students have when it comes to aggressive postings to an internet web log that is known to be read by your student population? The Second Circuit allows school administrators to discipline a student for such speech, where the speech incites offense and distraction on the high school campus, in the case of Doninger v. Neihoff, (2nd Cir. May 29, 2008).
June 2008
06/25/2008
The Department of Education is updating the Federal Educational Rights and Privacy Act of 1974. A Hogan & Hartson memo summarizes the updates, which include new rules allowing the limited release of student statistical information, so long as students can’t be identified personally, and also a clarification of what constitutes a health or safety emergency such that private information may be released by schools.
May 2008
05/28/2008
SLRMA and FLIC's 2008 Special Report: E-Discovery Self-Audit Checklist, Part I. The E-Discovery checklist addresses important protocol which school districts must take with the storage of electronic information in order to protect themselves, including proper inventory of information, consistent retention and deletion policies, and the clear publication of such policies to district employees.
May 2008
05/28/2008
Hogan & Hartson takes a look at an important Massachusetts case that applied the rule from the Supreme Court case of Parents Involved in Community Schools v. Seattle School District, assessing the constitutionality of voluntary integration plans that use students' race as a factor in placing students in public schools.
May 2008
05/28/2008
Be Happy, Not Gay" — T-Shirt slogan as political statement? How far can students stretch their free-speech rights before they offend others whose rights are also potentially violated? A SLRMA caselaw summary takes a look at the case of Nuxoll v. Indiana Prairie School District #204, in which the Seventh Circuit declined to step in and alter the school's decision to prohibit students from wearing the T-Shirt.
April 2008
04/17/2008
Both Hogan & Hartson and the SLRMA Newsroom issue reports on the Ninth Circut Court of Appeals holding in the case of Flores v. Arizona. State lawmakers have struggled since January 2000 to craft an education policy which the courts would find complies with federal statutory mandates.
March 2008
03/12/2008
We are very proud to present our FLIC Special Report: The 2008 English Language Learners Self Audit Guide and Checklist.
February 2008
02/26/2008
Hogan & Hartson takes a look at the Candy Cane case that turned into a Freedom of Religion and First Amendment controversy in Michigan, in the case of Curry v. Saginaw City School District.
February 2008
02/19/2008
The unfunded mandates of the No Child Left Behind Act: more controversy in Michigan, see the report also drafted for us by Hogan & Hartson, on the matter of the School District of Pontiac v. Spellings.
January 2008
01/22/2008
Hogan & Hartson gives us an update on the latest decision citing to the “Bong Hits for Jesus” First Amendment Ruling, in the Texas case of Ponce v. Soccoro Independent School District.
January 2008
01/21/2008
In Washington state, a school tragedy in which a student died on a field trip leads to a controversy about the state’s Open Records Act, and the decision of Soter v. Cowels Publishing Company.
January 2008
01/21/2008
School Board Legal Liability on the playground: what is the school district’s responsibility to foresee an unforeseeable act by a child? See our article in the Newsroom Miscellaneous section, on the case of Biscotti v. Yuba City Unified School District.
