School psychs unk 2014 by KSB School Law

SpEd Law Do’s and Don’t (Part 2) Karen Haase Bobby Truhe Harding & Shultz (402) 434-3000 schoollaw@hslegalfirm.com H & S School Law @KarenHaase @btruhe

The Plan for Today

The Plan for Today  How Lawyers took Over Education  Confidentiality of Student Information  Section 504 Update  Harassment and Bullying Issues  How to Testify

How the Law took over Education

The Early Day of Public Education  Colonial days: private schooling was the norm  Thomas Jefferson called for a system of public schooling for 20 young boys who could not afford private schooling  He advocated this plan by saying that it would enable them to “rake from the rubbish” 20 promising students

Rake from the Rubbish??  Education has been “raking from the rubbish” ever since  We are a country of immigrants.  Just about every immigrant group was considered “rubbish” when they first got here

Horace Mann  In the 19th century, public education became compulsory  Education was viewed as a moral enterprise  Horace Mann called for school board members to be “sentinels” who should ensure that every teacher is “clothes in garments of virtue”

We Diversify  In the late 19th and early 20th century, America became considerably more diverse  Newcomers crowded into public schools  Private schools begin to crop up  Very little law applied to public schools  “Where there is trust, there is little need for law and regulations” – Jim Walsh

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Century: Times Change

 1954: Brown v. Board of Education  1955: Rosa Parks boards the bus  1957: Mrs. Gump enrolls Forrest in school

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Century: Times Change

 1964: Congress enacts the Civil Rights Act  1969: Tinker v. Des Moines  1972: Congress enacts Title IX  1973: Congress enacts Section 504 of the Rehabilitation Act

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Century: Times Change

 1974: Congress enacts FERPA  1975: Goss v. Lopez  1975: Congress enacts precursor to IDEA  1985: New Jersey v. TLO

Law’s Strengths and Weaknesses  Law is good at answering big questions • Does the public school have to serve everyone? • Should students be granted constitutional protections at schools? • Should teachers be protected against arbitrary action by boards of education?

Law’s Strengths and Weaknesses  Law is bad at answering small questions • When can school staff discuss a special education student without the parents being present? • How should schools respond to students being unkind to one another? • What should a teacher be allowed to say in his/her Facebook page?

What We Need is Balance  System based ENTIRELY on trust will facilitate abuse of that trust. • It will work well for some but not for all • Will inevitably be in-groups and out-groups

• System based ENTIRELY on law will be ineffective • • • •

Paralysis Conflict Bureaucracy Resources spent on legal disputes not students

What We Need is Balance  We are not going back to the “good old days”  Nor should we  Trust will not govern automatically – it just be earned. We must show ourselves to be trustworthy  We must cultivate virtue in the profession  We must restore the idea that education is a MORAL ENTERPRISE

It starts with YOU  But if you want to cultivate virtue in the kids, you have to demonstrate it yourself  We must all be “clothed in garments of virtue”

 Maxwell  Crete

Three Areas for “Garments”  Confidentiality of Student Information  Acceptance of and support for all students  Bullying/Harassment Issues

Confidentiality

FERPA  Family Education Rights and Privacy Act (sometimes called “The Buckley Amendment”)  Response to perception of • Secrecy of files from students and parents • Disclosure of information to third parties

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.

L.S. v. Mount Olive Bd. Of Ed. (D.N.J. 2011)

 Catcher in the Rye Assignment  Parent sued • School • Principal • Teacher • School psych.  Court: teacher and psych personally liable – other school defendants dismissed

Letter to Wolf (FPCO 2011)

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Principal and teacher at volleyball game Parent sued school Parent also filed complaint with FPCO FPCO • “discussion should not have occurred in this public location and [staff] exercised poor judgment in breaching confidence” • Related lawsuit settled

Letter to Anonymous (FPCO 2013)

 Teacher’s practice was to e-mail each student who failed a test with a “remediation form”  Accidentally sent e-mail to entire group  Asked FPCO for guidance  FPCO • Violation of FERPA • Contacted school • Launched an investigation

Letter to Anonymous (FPCO 2013)

 Two school board members at board meeting discussing issue with sons  Parent filed complaint with FPCO  FPCO • Violation of FERPA • Emphasized broad definition of “school staff”

Username: SPLAW Password: Gobigblue1

Acceptance of Disabled Students

Interesting SpEd Trends  Starting in 1973, students identified as disabled steadily increased every year  Population of students with disabilities peaked in 2004-05 at 6.72 million, comprising 13.8 percent of the nation’s student population  In 2005-06 special-education participation numbers began to decline  Currently 13.1 percent of all students nationwide are identified as disabled

Interesting SpEd Trends  Categories of disabled students also shifting: • SLD declined from 6.1 to 4.9 percent of all students nationwide • Mental retardation dropped from 1.3 to 0.9 percent of students • Autism quadrupled from 93,000 to 378,000 • OHI more than doubled from 303,000 to 689,000