Adjunct Law Prof Blog

School Law Jobs

Job Title	Employer	Job Location
Labor & Employment Attorney	Lozano Smith	Fresno, California
School Attorney	Harbottle Law Group	Orange County, California
Special Education Attorney	Lozano Smith	Fresno, California
Legal Counsel	Colorado Association of School Boards	Denver, Colorado
School Law Attorney	Brannan Legal Search	Chicago, Illinois
Employment/Labor Law Associate Attorney	Thrun Law Firm	East Lansing, Michigan
Staff Attorney	City of Murfreesboro	Murfreesboro, Tennessee

3rd Circuit Holds NJ School District Must Pay For Disabled Students Private Education

D.S. v. Bayonne Bd. of Educ., ____F.3d____(3d Cir. Apr. 22, 2010), is an interesting case. The 3rd Circuit held that a school district is liable under the Individuals with Disabilities Education Act (IDEA) for private school placement of a disabled student because his individualized education plan (IEP) failed to provide him with a free appropriate public education as required by IDEA.  An administrative law judge (ALJ) found that Bayonne was not providing D.S. with a FAPE based on his IEP and standardized test scores. According to the ALJ, D.S.’s IEP did not incorporate any of the recommendations made by the experts hired by his parents. Also, despite D.S.’s high classroom grades, the ALJ gave more weight to his standardized test scores, administered by both school officials and outside experts. The school district appealed to federal district court. The court overturned the ALJ’s ruling. The parents then appealed the district court’s decision.

The 3rd reversed and the court agreed with the ALJ’s finding that the IEP was not appropriate and that D.S. was not making appropriate academic progress. Even though the appeals court acknowledged that the IEP did include a few of the modifications recommended by the parents’ experts, it upheld the ALJ’s determination that the IEP did not include enough supports to adequately address D.S.’s needs. It also agreed with the ALJ’s decision to give greater weight to D.S.’s standardized test scores than his classroom grades in determining whether the school district had provided him with a FAPE. It pointed out, based on U.S. Supreme Court precedent, that the classroom grades would have carried greater weight if they had been achieved in a general education classroom, but D.S. had been placed in a self-contained special education classroom. Lastly, it noted that when there is disagreement between the expert witnesses regarding whether the test scores or grades were a more accurate representation of the appropriateness of D.S.’s education, courts are required to greater deference to the factual conclusions of the ALJ.

Mitchell H. Rubinstein

Fruitless efforts to mainstream child justify more restrictive placement

A California district demonstrated that a kindergartener had significant behavioral issues that impeded her ability and the ability of her classmates to access the curriculum in a general education classroom. Therefore, its proposal to place the student in a special day class at another school in a more restrictive environment was appropriate, an ALJ concluded. La Mesa-Spring Valley Sch. Dist., __Cal. Rpt. ___110 LRP 28786 (CA 04/30/10).

Mitchell H. Rubinstein

Interesting Blog On Technology Issues

On Technology Law is an interesting blog by Texas Attorney D.C. Toedt who practices intellectual property  and  is Adjunct Law Professor at Univ. Houston Law School. The blog addresses much more than technology issues. It contains notes and "cheat sheets" which summarize different areas of the law such as arbitration and choice of law. It is worth book marking and checking out. 

Mitchell H. Rubinstein

Teacher’s use of force to restrain disabled student violated neither substantive due process rights nor rights under section 504 of the Rehabilition Act

 

T.W. v. Sch. Bd. of Seminole County, No. 09-12623 (11th Cir. Jun. 29, 2010), is an interesting case. The 11th Circuit held (2-1), that a teacher’s use of force to restrain a student with autism/pervasive developmental disorder violated neither the student’s substantive due process right to be free from excessive corporal punishment nor his rights under section 504 of the  Rehabilitation Act. While the panel viewed the teacher’s conduct as troubling and stated it could  not "condone the use of force against a vulnerable student on several occasions over a period of months," it nonetheless found "no reasonable jury could conclude that [the teacher's] use of force was obviously excessive in the constitutional sense." The panel, therefore, held that the teacher’s "conduct was not so arbitrary and egregious as to support a complaint of a violation of substantive due process."

Addressing the T.W.’s claim that those incidents amounted to excessive corporal punishment giving rise to due process violations, the panel stated that three factors were particularly relevant: “(1) the need for the application of corporal punishment; (2) the relationship between the need and amount of punishment administered; and (3) the extent of the injury inflicted.”

As to the first factor, it concluded: "Although Garrett may have resorted to physical force too soon or when alternative disciplinary methods would have sufficed, we cannot say that Garrett’s use of force was ‘wholly unjustified by a government interest.’" Regarding the second factor, the panel found, based on the evidence presented, that the amount of force used "was not totally unrelated to the need for the use of force." Turning to the third factor, it concluded that T.W.’s physical injuries were minor in nature. "After considering the totality of the circumstances, including T.W.’s psychological injuries," said the panel, "we conclude that Garrett’s conduct was not so arbitrary and egregious as to support a complaint of a violation of substantive due process."

Mitchell H. Rubinstein

School district’s IEPs were not procedurally flawed under IDEA because they lacked “baseline data” regarding measureable annual goals

 

Lathrop R-II Sch. Dist. v. Gray, ____F.3d___, No. 09-3428 (8th Cir. Jul. 2, 2010), is an interesting case. The Eighth Circuit held that a school district did not violate the procedural requirements of the Individuals with Disabilities Education Act (IDEA)  because the individualized educational programs (IEP) did not include "baseline data."  The panel found that IDEA "does not explicitly mandate such specific data" and, therefore, refused to "compel a school district to put more in its IEPs than is required by law."  The court held  that "the challenged IEPs set out D.G.’s present levels of education andmeasurable goals for the year, enunciated special services and accommodations for D.G., and adequately considered positive behavioral interventions and strategies."

Mitchell H. Rubinstein

Why Adjunct? or Why Teach?

Steve Blank recently wrote on his blog an interesting posting about why someone with something to say should consider teaching. It is called You Cannot Take It With You. As the posting states: 

 Lessons Learned

• If you don’t teach it or write it down, the accumulated knowledge of your career is gone.
• War stories about your career can be entertainment, or even better if you want to teach, make them the basis of a strategy and methodology worth passing on.
• Retirement doesn’t have to be only about golf and skiing.

Hat Tip: D. C. Toedt III

On Technology Law Blog 

Mitchell H. Rubinstein

Cyber Bullying Not Actionable

Though not an employment case, Finkel v. Dauber, ___Misc. 3d____(Nassau Co. July 22, 2010), is never-the-less, an important case for students of labor law as well as others. The case was an action for defamation based upon a teenagers posting on Facebook. What is most interesting about the decision, however, is that the court held that cyberbullying was not actionable. As the court explained:

 Insofar as the Plaintiff's counsel suggestion that the posts constitute cyber bullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

A New York Law Journal article about this case can be found here. 

Mitchell H. Rubinstein

15 Facts Law School Do Not Want You To Know

15 Facts Law Schools Don't Want You To Know is an interesting post by a commercial cite generated to direct traffic to their cite, but which readers may find of interest. So what are those 15 facts?

 Books are incredibly expensive, and you might never use them again

Your first year of law school will already be laid out for you.

Your grades will be curved

Law school debts could total well over $100,000

What school you go to does matter.

Your chances of getting a high paid job are slim

You can expect to work much more than 40 hours a week as a lawyer

The bar exam requires you to study for months, and even after that 33% fail

Breaks aren’t really breaks– you must spend them working

Law school won’t teach you business skills

Grades aren’t the end all

Only 54 percent of all working-age law school grads are able to make it as a lawyer

Fewer new grads are able to find jobs

Law schools lure in minority students to improve diversity rankings without disclosing that less than half of African-Americans who enter these programs ever pass the bar

Schools create misleading employment statistics by temporarily hiring new grads and spotlighting kids who land top-paying jobs, while ignoring the fact that most students make far-lower average incomes

While there is alot of truth to this, much of it paints with too broad of a stroke. I do not believe for a minute that most schools mislead stats or that law school lure minority students in to improve diversity rankings. On the other hand, grades are curved, books are not cheap, it is difficult to find a job and the law school you chose to attend does matter. 

Mitchell H. Rubinstein

Hat Tip: Alan Wood

Free Office Products (Fax and Conference Calls)

There are now several products on the web which allow you to send and receive a fax for free as an email and to make free conference calls via a regular telephone. There are limitations to all of these services, but the are free and I thought I would share them with readers. My favorites are as follows: 

-Send Fax Via Email (www.K7.net)

-Receive Fax Via Email  (www.freefaxbutton.com)

-Free Telephone Conference Calls  (www.FreeConferenceCallHD.com)

I will be adding these links to the left side of my blog for future reference. If anyone has other suggestions that are totally free (not low cost), please comment below.

Mitchell H. Rubinstein

Even without a finding of bad faith or willfulness, the disclosure of mediation discussions in violation of a confidentiality agreement may nonetheless subject a party to sanctions.

Spoth v. M/Y Sandi Beaches//2010 WL 2710525 (W.D.N.Y.July 7, 2010) (not available on internet), is an interesting case which discusses the possibility of sanctions if a party discloses confidences learned in court annexed mediation. Scholars and lawyers may find this case of interest.

Mitchell H. Rubinstein

School Law Jobs

Job Title Employer Job Location Labor & Employment Attorney Lozano Smith Fresno, California School Attorney Harbottle Law Group Orange County, California Special Education Attorney Lozano Smith Fresno, California Legal Counsel Colorado Association of School Boards Denver, Colorado School Law Attorney Brannan Legal Search Chicago, Illinois Employment/Labor Law Associate Attorney Thrun Law Firm East Lansing, Michigan Staff Attorney City of Murfreesboro Murfreesboro, Tennessee

Retirement and Special Needs Planning

Retirement Accounts and Special Needs Planning is a lengthly, but important May 2010 article from the NYS Bar Journal. It is primarily about how a beneficiary, who may have special needs, should handle a distribution of retirement or other income. As the article points out, if the benefits are not structured appropriately, the beneficiary may loose important benefits. The article summarizes tax and trust options that may be available to such individuals and is certainly worth a read.

Mitchell H. Rubinstein

Cyber Bullying In Schools

The Washington Post wrote an interesting July 21, 2010 editorial on Cyberbullying which readers may find of interest. The point of the article is that parents have a role in ending cyberbullying. As the article states:

But ultimately it is the role of parents to establish the terms of their children's activity online, setting clear limits and responding supportively and definitively if things go awry. Often, teens fail to mention cyberbullying to parents because they fear they will respond by simply shutting down their online accounts. Instead, parents should offer positive support to counteract the negative message of cyberbullying, while responding swiftly through appropriate channels -- either using social networks' established systems to block and flag malicious content or by calling the police if bullying has escalated to harassment.

Mitchell H. Rubinstein

What If College Tenure Dies??

What if College Tenure Dies?, is an interesting Discussion article from the New York Times. The article does not take a view, but rather is written to generate discussion. Tenure of course, remains controversial in both the K-6, college and graduate school level. All tenure is the right to a due process hearing before termination. It is not a guarantee of lifetime employment. In fact, it is almost identical to "just cause" requirements for discipline which are required by most union contracts. 

Mitchell H. Rubinstein

Most Woman State That They Have a Proper Balance Between Their Work and Personal Life

A recent survey by Kenexa Research Institute indicates that 61% of woman believe that they are able to achieve a proper balance between their work and personal life, more here. The report is based on the analysis of data drawn from a representative sample of 10,000 U.S. workers who were surveyed through WorkTrends™, KRI’s annual survey of worker opinions.

Mitchell H. Rubinstein

Employees who prayed for coworker because she was “demonically oppressed” raised triable issues as to whether they were discharged based on their religious beliefs

Sometimes you just cannot make these facts up. Two administrative assistants who were discharged by their state university employer after praying for a coworker in her cubicle because they believed she was “demonically oppressed” raised triable issues as to whether they were discharged in violation of Title VII based on their religious beliefs and because their employer failed to accommodate those beliefs Shatkin v University of Tex at Arlington, ___F.Supp.2d___(N.D. Tex. July 9, 2010, Means, T).

Mitchell H. Rubinstein

New Hampshire school board adopts dress code for teachers banning casual attire

According to published reports, the Board of the Manchester School Committee has approved a dress code that bans jeans, shorts, flip-flops and some sneakers. The policy requires teachers and staff to dress professionally to present a good image for the district and to serve as a good influence on students.  An exception is made for physical education teachers, who can wear sneakers, sweat suits and other banned athletic gear.

Source: New Hampshire Union Leader, 5/16/10, By Beth Lamontagne Hall

County not required to defend or indemnify an employee being sued if alleged act or omission was not within the scope of the employee’s duties

Rew v County of Niagara, 2010 NY Slip Op 04009, decided on May 7, 2010, Appellate Division, Fourth Department

Public Officers Law §17, with respect to State officers and employees and Public Officers Law §18, with respect to officers and employees of political subdivisions of the State, provide for the defense and indemnification of such persons being sued as a result of an act or omission in the performance of their official duties.

Michael J. Rew initiated a lawsuit naming "John Doe" among the several respondents listed in his complaint. Rew was seeking damages for injuries he sustained as the result of his being shot by Doe, a deputy sheriff employed by County of Niagara Sheriff''s Department. Doe was named as a respondent and characterized as the "being [the] deputy on duty and involved in [the] shooting incident."

Doe asked Supreme Court to dismiss Rew’s action on the representation that Rew failed to name him in the notice of claim, contending that General Municipal Law §50-e bars an action against an individual who has not been named in such notice of claim. When Supreme Court dismissed Doe’s motion he appealed, arguing that such notice was a “condition precedent” to Rew’s maintaining an action against him.

Not so, said the Appellate Division. Such a notice "is not a condition precedent to the commencement of an action against [Doe] unless the county is required to indemnify [him]."*

Further, a county's duty to indemnify an employee [1] "turns on whether [the individual was] acting within the scope of [his or her] employment" and [2] "whether the obligation to indemnify the individual was formally adopted by a local governing body."

In this instance, said the Appellate Division, even if County was required to indemnify Doe, [which was not clear that it was based on the record before the court], Rew alleged that Doe "did willfully, maliciously, and intentionally discharge his weapon and shoot without provocation."

Thus, "the conduct of [Doe] as alleged in the complaint amounts to [an] intentional tort." The Appellate Division ruled that under the circumstances, the acts alleged by Rew falls outside the scope of Doe’s employment and thus is not encompassed within the County’s duty to indemnify him should Rew prevail.

Accordingly, naming Doe in any notice of claim otherwise required by General Municipal Law §50-e is not, under the circumstances, a "condition precedent" to Rew maintaining his lawsuit against Doe.

* See Public Officers Law §18 [1] [a], [b]; [4] [a]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04009.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Senate Judiciary Committee To Vote On Kagan This Tuesday

The Senate Judiciary Committee is set to vote on Kagan's nomination this Tuesday. Details here. The only question is how many Republican votes will she get.

Mitchell H. Rubinstein