School Law Update for School Psychologists Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
The Plan for Today
The Plan for Today Reporting Child Abuse and Neglect Legal issues with electronic communication Seclusion and Restraint Psychs as Litigation Stars
Child Abuse
Recent Public Scandals Penn State Maxwell Crete
The Penn State Scandal • In Nebraska, every adult IS a mandatory reporter.
Child Abuse Defined 28-710 Knowingly, intentionally, or negligently causing a child to be: (a) Placed in a situation that endangers his or her life or physical or mental health; (b) Cruelly confined or cruelly punished; (c) Deprived of necessary food, clothing, shelter, or care; (d) Left unattended in a motor vehicle if such minor child is six years of age or younger (e) Placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions; or (f) Sexually abused.
Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number
Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number
Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number
Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number
Standard for police arrest without a warrant Has knowledge, based on information which is reasonably trustworthy under the circumstances, which justifies the person’s prudent belief that abuse and neglect has or is likely to occur
Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number
Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number
Keep in Mind: Only 1/3 of abuse gets reported Reasonable ≠ true Adult abusers groom adults as well as kids
Cases Involving Educators
Commonwealth v. Allen (Ky. 1998)
Teachers suspected fellow teacher Told principal, who did not report Teacher abused third student, assistant principal reported Teacher charged with failure to report Kentucky Supreme Court affirmed conviction
Commonwealth v. Allen (Ky. 1998)
What about multiple reports? “In this world where imperfections abound, it is not illogical or inefficient for the legislature to require every individual entrusted to the care and supervision of children to be required to report crimes against those children”
Pesce v. J. Sterling Morton H.S. (7th Cir. 1987)
School Psych contacted by student Referred to private therapist Decided to maintain student’s confidentiality until student agreed to allow report Superintendent suspended for 5 days and demoted
Pesce v. J. Sterling Morton H.S. (7th Cir. 1987)
 Psych sued claiming violations of 1st, 4th, and 14th Amendments  Illinois statute: Any . . . school personnel . having reasonable cause to believe a child known to them in their professional or official capacity may be an abused or a neglected child shall immediately report or cause a report to be made to the Department [of Children and Family Services].
Melleady v. Blake (Dist. N.J. 2011)
 Parents sued after kids removed from their home; Defendants claimed immunity  Ct: reporters do not have absolute immunity  Ct: Test is whether a reasonable person would have reasonable cause to believe that a child has been abused
Legal Immunity - 28-716 Any person participating in an investigation or the making of a report of child abuse or neglect required by law or participating in a judicial proceeding resulting therefrom shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements. •
Criminal Penalties up to 3 months in jail, a $500 fine, or both
Report from HHS The person in charge of a school making a legally mandated report of child abuse or neglect shall receive a summary of the findings of and actions taken by the department in response to the report upon request. The amount of detail such summary contains shall depend on the source of the report of child abuse or neglect and shall be established by regulations of the department.
My Recommendations Reporting peer abuse • If sex assault involved: report • If physical assault on campus: investigate; document; use discretion • If physical assault off campus: document; use discretion Call before you conduct your investigation Failure to report not in rule 27
Digital Communication
School E-mail Legally is:
An Education Record A Business Record A Public Record A Potential Exhibit in a Lawsuit
E-mail as Business Record Federal Rules of Civil Procedure • Rule 26: duty to disclose • Rule 37: failure to cooperate in discovery process • Rule 37(e): “routine, good-faith operation of electronic information system”
E-mail as Education Record • FERPA: “education record” means materials which “contain info. directly related to a student [and] maintained by an educational agency” • Includes “print or computer media”
E-mail as SpEd Record IDEA requires parental notification prior to deleting records which contain “personally identifying info. collected, maintained, or used” Washoe County Sch. Dist S.A. v. Tulare County Office of Ed.
E-mail as Hrg. Exhibits Federal Rules require “litigation hold” memo when there is “pending or reasonably anticipated litigation”
Email as Public Record Records “of” or “belonging to” state agencies are those records “owned” by the agencies or records for which the state has title or ownership interest E-mails in your possession can be public records – even if they are on your home email and computer…
When Emails Aren’t PR The mere fact that a record is in the possession of a public officer or a public agency does not make it a public record. Purely personal emails might not be public records depending upon your policy or negotiated agreement
FB, Twitter, Evernote… No reported NE cases regarding public records and FB, Twitter, etc. “regardless of physical form” “of” or “belonging to” and “ownership test” Could be public record Hyannis decision
Sch. Psychs Digital Traps Do NOT e-mail questions about IEP implementation Do NOT vent or communicate educational concerns digitally DO NOT forget to proofread Do NOT engage in extended digital conversations with parents Do NOT ignore Do NOT disclose info re other students
School E-mail & Politics Nebraska Political Accountability and Disclosure Act In the Matter of Michael Nolan • City Manager used city’s e-mail to send message opposing referendum • Personal computer; outside work time • Used city’s e-mail system, using the city’s e-mail server and the city’s internet service provider
Confidentiality
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
What does FERPA do? Staff may not disclose personally identifiable information about students, nor permit inspection of their records by third parties, without the prior written consent, unless such inspection is permitted by the exceptions in FERPA.
Why should Psychs care? L.S. v. Mount Olive Board of Ed. (D.N.J. 2011) • Catcher in the Rye Assignment • Teacher and school psych. liable – other school defendants dismissed “When in doubt, don’t give it Out!”
Discipline
Student Discipline Drugs and alcohol offenses • 504 students: not entitled to manifestation • SpEd students: 45 days even if manifestation (section 16.002) Student Discipline Act procedures still apply All other offenses: Must complete manifestation (if “disciplining”)
Student Discipline First 10 days “free” • What is a “disciplinary removal?” • How to count to 10
If changing placement; must conduct a manifestation determination
Manifestation Det. Is current placement appropriate? Did disability cause or have a direct and substantial relationship to, the misconduct Was misconduct direct result of an IEP implementation failure
Manifestation Det. If manifestation • Cannot discipline • Must consider whether plan needs to be change
If not a manifestation • Can discipline like regular ed student • IAEP (If SpEd) • No IAEP (If 504)
Seclusion and Restraint
Policy Not Required; “Recommended” Arnie Duncan Memo 7/31/09 Roger Breed Memo 9/3/10 NDE SpEd Procedures
“Suggested” Policy Components • Definitions • Rationale (Preamble) • Purpose of Employing Restraint and Seclusion • Staff Training Requirements • Time Lines and Maintaining Safety for Use of Each Procedure
• Documentation of Each Incident • Debriefing • Focus on Prevention • Appropriate Reporting to Parents/Guardians • Supervision, Oversight and Review
Karen’s Suggestions Get a copy of your board’s policy NOW Follow it EXACTLY • Training • Reporting If it is bad: • Draft revisions • Take to administration, then board • Don’t wait If policy and IEP conflict; follow IEP
Seclusion and Restraint Litigation
Clark v. Special Sch. Dist. (E.D. Mo. 2012) Student OHI: ADHD, seizure disorder, “autistic-like behaviors” Kindergarten year • Suspended three times • Lasted 2 months in parochial school • No meds for ADHD • Final IEP had three goals, all behavioral
Clark v. Special Sch. Dist. (E.D. Mo. 2012) First grade year • Started school 8/14 • Transferred to parochial school 8/24; re-enrolled in public school 9/19 • 2:1, still disruptive 50% of time • Shortened school day implemented • Transferred to special day school • Special school used SORs • Mom called CPS
Clark v. Special Sch. Dist. (E.D. Mo. 2012) Second grade year • Parents refused to send to school unless IEP prohibited use of SOR • Educators on team resisted • Third party consultant retained • IEP team eventually homebound • Served at public library with some success • Mom sued during second semester
Clark v. Special Sch. Dist. (E.D. Mo. 2012) Mom’s Claims • Use of SOR deprived student of FAPE • SOR = seclusion and restraint • No FBA or BIP • Student not served in LRE Court • SOR didn’t deprive of FAPE • Seclusion not unlawful • FBA and BIP can be in IEP • Restrictive placement appropriate
Lessons from Clark Documentation pays off • Chemical restraint – made a record of refusal • In and out of parochial school • Parent statements recorded in IEP Follow policy on seclusion to the letter FBA and BIP can be in IEP Move through continuum of placements Use homebound to buy time
School Law Update for School Psychologists Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase