Adjunct Law Prof Blog

Non-disabled teacher had stand standing to sue for retaliation under disability laws

Barker v Riverside County Office of Educ, ___F.3d____(9th Cir. October 23, 2009), is an interesting case. Reviving her claims, the Ninth Circuit held that a non-disabled teacher had standing under Title II of the ADA and Section 504 of the Rehab Act to sue for retaliation after she was allegedly subjected to a hostile work environment and constructively discharged for filing a complaint with the US Department of Education's Office of Civil Rights, which asserted that her employer denied the students a free appropriate public education as required by federal and state law.

The employer argued that Title II and Section 504 are not intended to provide redress of employment claims for persons who are neither disabled themselves, nor have any close relationship to persons with disabilities. The court reasoned that Section 504 incorporates Title VII's anti-retaliation provision, which forbids discrimination against "any individual" because that individual made a complaint under the Act. The statutes do not include language requiring such individuals to have disabilities in order to have standing, nor do they require the individual to have any close relationship to the person with a disability. Therefore, held the Ninth Circuit, Section 504 grants standing to non-disabled people who are retaliated against for attempting to protect the rights of the disabled, even if they themselves are not disabled or closely related to a person with a disability. Similarly, Title II of the ADA forbids discrimination against "any individual" because "that individual" made a charge under the Act.

This is an important decision.

Mitchell H. Rubinstein

District’s policy prohibiting the performance of religious music at school events is constitutional

Stratechuk v. Board of Educ. South Orange-Maplewood Sch. Dist., ___F.3d___ (3d Cir. Nov. 24, 2009), is an interesting case. The Third Circuit held that a Pennsylvania school district’s interpretation of its “Religion in the Schools” policy as prohibiting the performing of celebratory religious holiday music at school concerts and programs does not violate the First Amendment’s Establishment Clause.

The Third Circuit rejected the argument that the school district’s interpretation of Policy 2270 violated the Establishment Clause under both the Lemon and endorsement tests because it disfavored religion. The appeals court pointed out that plaintiff had failed to offered any “persuasive authority that the First Amendment prevents South Orange-Maplewood School District from formulating a policy that precludes performance of religious holiday music.” It agreed with the district court that even if the Establishment Clause does not require banning the performance of religious music in schools, a school district’s decision to prohibit performance of such music does not run afoul of Lemon’s secular purpose prong because such a ban does not have a religious purpose.

The Third Circuit also addressed the First Amendment claim, which the district court characterized as the right to receive information and ideas. It concluded the claim was without merit because, even assuming the validity of the claim, the policy does not restrict students’ access to ideas by banning the performance of religious celebratory music at concerts and assemblies because access such music” is permitted “in the classroom within the framework of the curriculum.”

Mitchell H. Rubinstein

Pontiac School Dist. v. Secy. of Education, ___F.3d____(6th Cir. Oct. 16, 2009)(en banc) is an important Education Law decision which spans 93 pages. Dismissal of an school districts and education associations' action against the Secretary of the United States Department of Education, seeking a declaratory judgment that they were not required to comply with the No Child Left Behind Act's (NCLB) requirements where doing so would result in increased costs of compliance not covered by federal funds, was affirmed by an equally divided court. Six of the 16 judges thought the NCLB satisfied the Spending Clause's clear-statement rule by "clearly" describing the conditions that went along with the acceptance of funds under the Act. Two of the remaining judges would have affirmed dismissal on justiciability grounds.

Mitchell H. Rubinstein

Mandatory Gym Class For Obese College Students

The ABA Journal Blog is following up on an article from the Chronicle of Higher Education whcih reported  that Lincoln University in Pennsylvania requires sudents with a body mass index of over 30 to take a one-credit gym class to graduate. Is that unlawful under the ADA? Maybe? The article quotes several law profs:

Laura Rothstein, a law professor at Louisville University told The Chronicle of Higher Education that a student could challenge the requirement under the Americans with Disabilities Act.

"But I can't tell you how that would turn out—it would be breaking new ground," Rothstein said. "The key would be whether the obesity and size of a particular student is a disability."

Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, posited that one's BMI could be construed as protected medical information.

"Being put in a class with other 'at-risk' BMI's walks a little close to disclosure," Lake said in an e-mail to the Chronicle.

Mitchell H. Rubinstein

Student Who Was Not Allowed To Cross Examine Witnesses In Disciplinary Hearing Denied Due Process

Matter of Lopez v. Bayshore Union Free School Dist., ___ F.Supp. 2d____(E.D.N.Y. Nov. 19, 2009) (registration required) is an interesting case.

A HIGH school student was suspended after a disciplinary hearing at school. The suspension was later reversed and expunged from his record. Now the student, through his mother, has filed suit against the school for damages. Plaintiffs alleged the student was denied the right to cross-examine the complaining witness. The court noted that there was no hard and fast federal constitutional right to call or cross-examine witnesses in a school disciplinary hearing. Nevertheless, the court reasoned, the touchstone of due process is that the accused be afforded an appropriate and meaningful hearing. Looking to Matthews v. Eldridge, the court found the interest at stake was significant, and the importance of the student's right to a free public education could outweigh the burden that would have been placed on the school by allowing the student to call and cross-examine the complaining witness. Thus, the court denied the school's motion with respect to the student's due process claim. As the court explained:

As a general matter, there is no hard and fast federal Constitutional right to call or cross-examine witnesses in a school disciplinary setting. This is true even when the student faces a potentially serious disciplinary consequence. See, e.g., Nash v. Auburn University, 812 F.2d 655, 663-64 (11th Cir. 1987) (holding that hearing resulting in one year suspension for graduate-level students was constitutional even when students were not permitted to directly cross-examine witnesses at trial).

Nevertheless, the touchstone of due process is that the accused be afforded an appropriate and meaningful hearing. The Court determines the procedural protections necessary to effect this requisite in the administrative setting by consideration of the factors the Supreme Court set forth in Mathews v. Eldridge, 424 U.S. 319, 333-34, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). These factors include "(1) the private interest that will be affected; (2) the risk of erroneous deprivation through the procedures and the probable value of additional or alternative safeguards; and (3) the government's interest, including the function involved and the administrative burdens of the additional safeguards." E.K. v. Stamford Bd. of Educ., 557 F.Supp.2d 272, 276 (D.Conn. 2008) (citing Mathews, 424 U.S. at 319).

The interest at stake at Aleman's suspension hearing was significant. As to the risk of harm caused by Aleman's alleged inability to call and cross-examine relevant witnesses, and the burden that this additional safeguard would place on the defendant, these are factual questions. However, the Court finds it plausible that the importance of Aleman's right to a free public education could outweigh the burden that would have been placed on the defendant by affording Aleman the right to call and cross-examine the complaining witnesses. The Court thus finds that the plaintiffs have stated a claim that the defendant violated the due process rights of Aleman by denying him the right to confront his accusers and call and examine witnesses.

Mitchell H. Rubinstein

Kindergarten Admission Tests and Test Prep Companies

You know it had to happen. There are now test prep companies to help students get into Kindergarten. Honest! There is even a N.Y. Times article about this practice, here. As the article states:

Test preparation has long been a big business catering to students taking SATs and admissions exams for law, medical and other graduate schools. But the new clientele is quite a bit younger: 3- and 4-year-olds whose parents hope that a little assistance — costing upward of $1,000 for several sessions — will help them win coveted spots in the city’s gifted and talented public kindergarten classes.

Motivated by a recession putting private schools out of reach and concern about the state of regular public education, parents — some wealthy, some not — are signing up at companies like Bright Kids NYC. Bright Kids, which opened this spring in the financial district, has some 200 students receiving tutoring, most of them for the gifted exams, for up to $145 a session and 80 children on a waiting list for a weekend “boot camp” program.

These types of businesses have popped up around the country, but took off in New York City when it made the Otis-Lennon School Ability Test, or Olsat, a reasoning exam, and the Bracken School Readiness Assessment, a knowledge test, the universal tests for gifted admissions beginning in 2008.

Mitchell H. Rubinstein

New York Law Student Fails In His Challenge To Reverse His Legal Writing Grade

Keefe v. New York Law School, ___Misc. 3d___(N.Y. Co. Nov. 17, 2009), is an interesting case. A transfer student to New York Law School from Hofstra Law School was unhappy with being placed in Legal Writing II. As I understand it,his argument was that New York Law School breached an implied contract because it did not provide him with "the right program for every student" as indicated on the law school's web site. Out of the blue he argued that legal writing should be graded pass/fail because that is the way it is done at Yale Law School. The court did not have any trouble dismissing the case and finding that no implied contract existed. As the court stated:

Generally, New York State courts have permitted a student to bring a breach of implied contract action against an institution of higher education. See Radin v. Albert Einstein College of Med. Of Yeshiva Univ., 2005 U.S. Dist. LEXIS 9772 at *30 (S.D.N.Y May 20, 2005). However, a student must identify specific language in the school's bulletins, circulars, catalogues and handbooks which establishes the particular "contractual" right or obligation alleged by the student in order to make out an implied contract claim. See Sweeney v. Columbia Univ., 270, AD2d 335, 336 (2d Dep't 2000); Vought v. Teacher's Coll., Columbia Univ., 127 AD2d 654, 655 (2d Dep't 1987). General statements of policy are not sufficient to create a contractual obligation. Only specific promises that are material to the student's relationship with the school can establish the existence of an implied contract. See Lloyd v. Alpha Phi Alpha Fraternity, 1999 U.S. Dist. LEXIS 906, at *27-*28 (N.D.NY Jan, 26, 1999). "To state a valid claim for a breach of contract, a plaintiff must state when and how the defendant breached those specific promises. Radin, 2005 U.S. Dist LEXIS 9772, at *32.

In the case at bar, Plaintiff fails to cite any specific provision or communication from NYLS that would establish an implied contract. One cannot breach a contractual promise that was never made. Radin, 2005 U.S. Dist. LEXIS 9772, at *37. Plaintiff fails to point to any document or communication that gives rise to a promise which NYLS has breached. See Chira v. Columbia Univ., 289 F. Supp.2d 47, 485, 486 (S.D.N.Y 2003); Ward v. New York Univ., 2000 U.S. Dist. LEXIS 14067, at *10-*12 (S.D.NY Sept 25, 2000). Therefore the motion to dismiss the complaint is granted in its entirety.

Moreover, New York courts have repeatedly refused to interfere in the academic procedures of educational institutions and cannot and will not intervene in disputes involving an educational institution's grading system.

As the New York Court of Appeals has stated quite clearly in Susan M. v. New York Law School, 76 NY2d 241, 246-247 (1990).

As a general rule, judicial review of grading disputes would inappropriately involve the courts in the very core of academic and educational decision making. Moreover, to so involve the courts in assessing the propriety of particular grades would promote litigation by countless unsuccessful students and thus undermine the credibility of the academic determinations of educational institutions. We conclude, therefore, that, in the absence of demonstrated bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation, a student's challenge to a particular grade or other academic determination relating to a genuine substantive evaluation of the student's academic capabilities is beyond the scope of judicial review.

Plaintiff is requesting this Court to intrude upon an area to which New York Courts have [*3]strongly refused to intervene. Here, Plaintiff has shown no evidence of "bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation." id. NYLS clearly communicated through the student handbook that NYLS utilizes a letter grading system under which all of its students are evaluated. This Court declines to interfere with this quintessential function of an educational institution. 

And no, in case you are wondering, the plaintiff was not one of my students. However, he did get to handle a case pro se in court. How many law students can say that.

Mitchell H. Rubinstein

5th Holds Confederate Flag Ban Does Not Violate Student 1st A Rights

A.M. v. Cash, ___F.3d___, (5th Cir. Oct. 9, 2009), is an important decision to be aware of.

The 5th Circuit held that a school district policy prohibiting the display of the Confederate flag on school property does not violate students’ free speech or equal protection rights. A.M and A.T., students at Burleson High School (BHS), were sent home for bringing to school purses displaying Confederate flag symbols. The Confederate flag policy had been adopted during the 2002-03 school year after several racial incidents, some involving the Confederate flag.

Regarding the free speech claim, the 5th pointed out that under the Tinker standard, school officials may restrict student expression if they reasonably forecast such expression will lead to material disruption in school operations. While “mere expectation” would not suffice, officials need not wait until actual disruption has occurred before acting to prohibit speech. The court found ample evidence of racial hostility from which school officials could reasonably anticipate that displaying the flag would result in disruption. It also cited a number of federal circuit court decisions upholding bans on displays of the Confederate flag, including Barr v. Lafon, 538 F.3d 554 (6th Cir. 2008); Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243 (3d Cir. 2002); and Scott v. Sch. Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir. 2003). In each instance the ban was based on a history of racial tension. It rejected the students’ assertion that under Tinker the ban of Confederate flag displays could be justified only if school officials presented evidence of actual past disruption.

Mitchell H. Rubinstein

Recent Supreme Court Action In Education Law Cases

Review denied

Hudson Area Schools v. Patterson, 551 F.3d 438 (6th Cir.); Docket No. 09-143; Equity & Discrimination: peer on peer sexual harassment – school district’s liability; Review denied 10/5/09.

Jallali v. NOVA Southeastern Univ. Inc., 992 So.2d 338 (Fla. App.); Docket No. 08-1544; Legal System: refusal to confer degree – breach of contract – failure to satisfy requirements; Review denied 10/5/09.

Mayer Unified Sch.Dist. v. Arizona State Land Commissioner, 201 P.3d 523 (Ariz.); Docket No. 08-1518; Finance: easements over state trust lands – compensation – limitations; Review denied 10/5/09.

L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900 (9th Cir.); Docket No. 08-1414; Special Education & Disabilities: IDEA – procedural due process – parental observation of school district’s proposed program; Review denied 10/5/09.

Stancourt v. Worthington City Sch. Dist., unpublished (Ohio App.); Docket No. 08-1373; Special Education & Disabilities: IDEA – violation of procedural requirement – change in placement; Review denied 10/5/09.

Frazier v. Smith, 535 F.3d 1279 (11th Cir.); Docket No. 08-1351; Student Rights & Discipline: Pledge of Allegiance – student decision not to recite – parental consent; Review denied 10/5/09.

Barr v. Lafon, 538 F.3d 554 (6th Cir.); Docket No. 08-1325; Student Rights & Discipline: high school’s ban on clothing depicting Confederate flag – First Amendment; Review denied 10/5/09.

__________

Petition for certiorari

Busch v. Marple Newtown Sch. Dist., 567 F.3d 89 (3d Cir.); Docket No. 09-315; Religion: school’s restrictions on reading scripture to kindergarten class – First Amendment; Filed 9/9/09.

Mitchell H. Rubinstein

Seattle to unveil new student assignment plan soon

The Seattle School Board plans to roll out its new student assignment plan next month, says CrossCut.com. The board hopes to adopt a new plan, assigning students largely to neighborhood schools, with far fewer "escape valves." The Seattle School Board ended the school district’s 30-year experiment with desegregation busing June 17 this year, when it approved a new student assignment plan based on residence, not race. The board scraped the previous plan when the U.S. Supreme Court ruled that Seattle could not use assignment rules to adjust the racial balance of its high schools.

Crosscut.com, 10/5/09

New Hampshire’s Pledge of Allegiance statute does not violate constitution’s religious clauses

Freedom from Religion Foundation v. Hanover Sch. Dist., ___F.Supp. 2d___ (D. N.H. Sept. 30, 2009), is an interesting case that we are likely to hear more about.

A federal district court ruled that a New Hamp. statute requiring the recitation of the Pledge of Allegiance in schools does not violate the U.S. Constitution’s Establishment or Free Exercise of Religion Clauses. It also rejected claims that the state’s pledge law violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In addition, it summarily dismissed the claim that the pledge law was void as against public policy on the ground of failure to state a claim upon which relief could be granted. Lastly, the district court dismissed all state law claims without prejudice, allowing them to be refiled in state court.

The parents of three public school students objected to their children being subjected to recitation of the Pledge of Allegiance in school. Specifically, the parents, who identify themselves and their children as atheist or agnostic, contended the pledge offended their and their children’s rights under the First Amendment because of the inclusion of the phrase “under God” in the pledge.

The statute in question had been passed in the aftermath of September 11 attacks. The statute made student participation voluntary by providing an opt-out clause. While conceding that the children were not compelled to recite the pledge, the parents sought assurances from the principals at their children’s schools that the pledge would not be recited in their children’s classes. However, no such assurances were given.  The suit implicated both state and federal pledge laws.

The district court applied the three-prong Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971) in upholding the statute. Regarding the secular purpose prong, it concluded that both the express purpose of the New Hampshire statute (continuing “the policy of teaching [the] country’s history to the elementary and secondary pupils of [the] state”) and the legislative history of the statute demonstrated a secular purpose. It pointed out that the record of the legislative discussions made clear that the law was enacted for patriotic, not religious, reasons. It also noted that the fact that when the pledge recitation law was revised by the legislature it was separated from the provision allowing recitation of the “Lord’s prayer” in schools. Turning to the primary effect prong, the district court stressed that the government may not coerce an individual to support or participate in religion or its exercise. However, it found no coercive effect was present under New Hampshire’s law. It distinguished it from the situation in Lee v. Weisman, 505 U.S. 577 (1992), where the element of coercion was present on two grounds. First, participation in the recitation of the pledge is voluntary, providing an opt-out for those wishing not to participate. Second, and as the district court viewed it more importantly, the pledge is not a prayer, as was the case in Lee. The district court disposed of the excessive entanglement prong, finding the defendants prevailed because the parents had not argued that the state pledge law encourages government entanglement with religion.

The district court discussed the different approaches taken toward the phrase under god by the Fourth, Seventh, and Ninth Circuits. Although the Ninth Circuit’s viewed the phrase as a “profession of a religious belief, namely a belief in monotheism,” thus rendering the recitation of the pledge in school unconstitutional, the district court agreed with the Fourth and Seventh Circuit view that the phrase reflected nothing more than a ceremonial deism rather than the intent to impose any theistic doctrine. It pointed out that when the U.S. Congress added the phrase in 1954 its actual motives where most likely political, having “more to do with currying favor with the electorate than with an Almighty.”

It rejected the free exercise claims based on the argument that the children’s exposure alone to recitation of pledge infringed on their constitutional right to freely believe or practice their atheism or agnosticism.

Addressing the due process and equal protection claims, the district court concluded, that because the pledge statute did not “create rules for agnostics and atheists different from rules applicable to monotheists or polytheists, and because there are no allegations that the Doe children’s teachers acted with a discriminatory intent, the equal protection was not sustainable. Regarding the parents’ Fourteenth Amendment claim that the law violated their right to education their children in accordance with their views of  religion, the district court, viewed the due process claim akin to the free exercise claim. It, therefore, concluded that “dismissal of [the parents’] free-exercise claim compels dismissal of their due-process/parental-rights claim.”

Look for an appeal to be filed.

Mitchell H. Rubinstein

Education Law Jobs

School Law Jobs Job Title Employer Job Location General Counsel Oxnard School District Oxnard, California School Attorney Harbottle Law Group Orange County, California General Education / Labor & Employment Attorney Lozano Smith Los Angeles, California Special Education Attorney Lozano Smith Northern/Central California General Counsel Adams 12 Five Star Schools Thornton, Colorado School Law Attorney - Law Firm Brannan Legal Search Illinois Associate Attorney Schwartz & Shaw Raleigh, North Carolina Staff Attorney National School Boards Association Alexandria, Virginia

Clerical error in recording an educator’s tenure area does not vest educator with tenure in the tenure area recorded

Appeal of Janice Walters from action of the Board of Education of the City School District of the City of Cortland, Superintendent Laurence Spring and Lydia Eberenz-Rosero regarding the appointment of an elementary principal, Decisions of the Commissioner of Education No. 15,973

Janice Walters’ position as supervisor of special education was abolished by the board effective July 31, 2008. When the board appointed Lydia Eberenz-Rosero to an elementary principal position, a position in the administration tenure area, Walters objected, claiming that she had superior rights to appointment to the position pursuant to Education Law §2510(3)(a).*

According to the decision, Walters had commenced her employment with the District subject to the satisfactory completion of a three-year probationary position in the tenure area CSE/CPSE Chairperson. Subsequently the board changed Walters’ tenure area to special education supervisor and she signed a revised job description on July 1, 2002.

Walters completed her probationary term and claims that the board then granted her tenure in the area of administration. In rebuttal, the board asserted that due to a clerical error, Walters’ tenure area was misstated as administration rather than her correct tenure area -- supervisor of special education.

The Commissioner agreed with the Board, ruling that the record demonstrated that Walters was granted a probationary appointment in the tenure area of CSE/CPSE Chairperson and that subsequently, with Walters’ consent, her tenure area was modified in 2002 to special education supervisor. Further, said the Commissioner, there is no indication in the board’s minutes that it was consciously changing Walters’ tenure area to administration or that Walters was consenting to a change, nor could the board retroactively change the scope of the tenure area in which Walters was serving.

Under these circumstances, said the Commissioner, “I find that the listing of Walters’ tenure area as administration at the time of her tenure was granted was due to clerical error and that Walters’ actual tenure area is special education supervisor. She therefore has no rights under Education Law §2510(3) to appointment to the elementary principal position because it is a different tenure area.”

The Commissioner also noted another hurdle -- even if Walters were in the administration tenure area, which she is not, in order for Walters to be entitled to the appointment to the vacant elementary principal position, the duties of that position must be similar to the duties of her former position.

The test to ascertain whether the two positions are “similar:” is more than 50 percent of the duties of the vacant elementary principal position the same as those that were performed by Walters in her former position. Thus, even if Walters were in the administration tenure area, the Commissioner said that her appeal would be dismissed because a review of the job descriptions for both positions reveals that, within the meaning of Education Law §2510(3), fifty percent or more of the duties the special education supervisor are not similar to the duties of the elementary principal.

The Commissioner then dismissed Walters’ appeal.

* Education Law §2510(3)(a) governs the rights of a former employee of a city school district to re-employment and provides, in pertinent part, that “If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled ….”

** Also, Walters would have the burden of proving that a majority of the duties of the vacant elementary principal position are similar to those of her former position.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume49/d15973.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

Disabled student, who won court order to bring service dog to school, placed in private school by district

An autistic boy who won a temporary court order to bring his service dog to class in his hometown school district instead started at a new school nearly a half hour away, according to the St. Louis Post-Dispatch. Carter Kalbfleisch, along with his service dog, began classes at the Illinois Center for Autism in Fairview Heights instead of his former pre-kindergarten special education class in the Columbia School District. The remedy adds thousands of dollars to the cost of Carter’s education, with the district and the state picking up the tab. But while the district said it will pay for Carter’s transportation, it will not pay for the service dog to travel to the new school.  The parents have vowed to continue to fight their school district to win Carter the right to bring his service dog to their neighborhood school.

Source: St. Louis Post-Dispatch, 8/14/09, By Nancy Cambria

Mitchell H. Rubinstein

The Problem With Zero Tolerance Policies

Suspended Boy Back in School is an important Oct. 14, 2009 article from the NY Times that demonstrates an important point. Whenever a policy, whether it relates to employment or schooling, is inflexible and wooden it is likely to lead to problems. Here, a six year old student was suspended for carrying a weapon to school for taking to school a camping utensil that included a small foldout knife.

Mitchell H. Rubinstein

U.S. Department of Education Issues Guidance On Swine Flu

The US Department of Education has issued guidance that discusses waivers from federal education requirements that may provide state or local educational institutions with the operational flexibility necessary to efficiently close schools and otherwise respond to the administrative challenges presented by a potential H1N1 outbreak such as: prolonged school closures, excessive absenteeism, or other disruptions in the regular delivery of educational services to students for a prolonged period of time. The document, which is quite lengthly, contains advisory information on six sections: Elementary and Secondary education issues, adult education and career and technology issues, Federal Student Aid and other postsecondary education issues, grant administration requirements, Family Educational Rights and Privacy Act (FERPA) issues, and distribution of flu vaccines at school facilities. The document also addresses concerns for IEPs and Special Education student services which may be disrupted.

The Guidance is available here.

Mitchell H. Rubinstein

Important Article on Special Education In A Charter School Dependent Educational System

Professor Mark Weber, DePaul Law School just posted on SSRN an important article entitled Special Education from the (Damp) Ground Up: Children with Disabilities in a Charter School-Dependent Educational System, (Loyola Journal of Public Interest Law Forthcoming). Here's the abstract:

Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education for children with disabilities in a reconstructed school system committed to choice and charters. The principles include the following: (1) Guaranteeing that the general education system takes responsibility for all children; (2) Adequately supporting children with disabilities in general education; (3) Improving outcomes; (4) Providing equal opportunity for choice; (5) Assigning costs fairly; and (6) Protecting parents' and children's rights. This paper will discuss each principle in turn, considering its implications for policy and its legal ramifications.

Mitchell H. Rubinstein

100 Useful Tools for Special Needs Students & Educators

While not legal information per se, readers interested in the IDEA and Special Education may find some of the links helpful. The full posting is available here. The web sites mentioned are as follows:

Evaluation Tools

Teachers, school psychologists and doctors will help you test your child for a learning disability, but in the meantime, you can use these guides and tools to check symptoms and learn more about the testing process.

1. Learning Disability Screening Quiz: About.com’s quiz is mostly for testing elementary school kids.
2. Assessing Your Child’s Learning Difficulty/Learning Disability: This guide helps you assess symptoms of ADD, ADHD, dyslexia and ASD.
3. Inclusion of Students with Special Needs: Standards and Assessment: This guide has lots of tools and resources for understanding the assessment process and certain symptoms.
4. Learning Styles and Multiple Intelligence: This quiz helps students find out their preferred learning style.
5. Early Identification: LK OnLine’s Early Identification page features resources, videos, recommended books and a FAQ section to help parents and teachers identify LD signs early.
6. Rating Scales and Checklists: Learn about this form of assessment for ADD and ADHD.
7. Top 8 Tips to Recognize Early Signs of Learning Disabilities: Ann Logsdon’s guide points out 8 signs and lots of sub-symptoms when evaluating special needs kids.
8. Late Blooming or Language Problem?: This guide from the American Speech-Language-Hearing Association helps parents identify speech and communication conditions early on.
9. Dyslexia Screening Test: Parents and teachers can use this screening to test a child for dyslexia.
10. All About Autism Symptoms Video: This video from the National Autism Association outlines the principal symptoms of autism.

Reading and Writing

From innovative dictionaries to lesson plans for dyslexic students to grammar and spellcheck help, these reading and writing tools are must-haves for special needs students.

11. Multisensory Phonics: Learn about and purchase this system of phonics and literacy tools for children with dyslexia, Aspergers, austism and other learning differences.
12. CleverKeys: This free software program immediately connects to dictionaries, thesauruses and Reference.com through word processors and web browsers.
13. RFB&D: Recording for the Blind and Dyslexic has tools, lesson plans and guides for reading-challenged students.
14. CAST: Access classic literature in a flexible online format plus free tutoring tools and other add-ons to help those who face reading challenges.
15. Co-Writer: This tool isn’t free, but its writing, spelling and grammar-help features help students as they go.
16. Bookshare: This "books without barriers" project provides books and periodicals to readers with sight or reading disabilities. It includes over 50,000 digital books and textbooks.
17. LibriVox: Find free audiobooks in mp3 or ogg file format.
18. Articulate Spelling 1.22: A cute cartoon character helps kids spell and sound out words.
19. Textic Talklets 1.90: Websites become more interactive with this unique approach to text-to-speech technology. Audio clips can even be saved to mp3s and to iPods.
20. WordLogic: This tool helps dyslexic students use a keyboard, develop their writing style and more.
21. PixWriter v3.0: Young learners will associate words with pictures to help them with sentence construction and reading comprehension.
22. Text-Reader: Tools in this kit include a free Drill dictionary and text reader.
23. Aurora: Aurora features a talking spellchecker, phonetic word completion tool, homonym help, and word prediction tool are great for dyslexic students.
24. Ghotit: Ghotit’s writing assistant has a context spellchecker, word dictionary, and text-to-speech tool.
25. AnswerTips: Double click a word to get an information bubble with that word’s definition with AnswerTips.

Math Tools

Get help with math problems by working with these interactive, engaging tools.

26. Webmath: With just a few clicks, students can get answers and step-by-step study help for math problems.
27. Internet Lessons in Mathematics: The University of Washington has developed this helpful interactive math site for learning geometry and more.
28. Visually Impaired Calculator: This big-print calculator is web-based and easy to use.
29. Math Card Games for Special Education Learners: Here you’ll find math card games and activities that help special education learners practice their skills.
30. Math Made Easy: Math Made Easy features tools and lessons for students who struggle with math.
31. Math Games: These interactive math games use tangrams, spatial learning techniques, and more to provide a multisensory and interactive environment.
32. TouchMath: TouchMath uses multisensory, interactive systems to help young students learn math.
33. MathTrax: NASA’s graphing and mathematics learning tool accommodates blind and low vision users, too.
34. Education World Math Center: Find creative learning techniques and lessons like math raps, the Mathnasium and other tools for alternative math education.

Communication and Social

Not all of these tools are specifically intended for special needs students, but they can be very useful for teens and older students who need help with organization, mind mapping, meeting new people and working on their social skills.

35. Emacspeak: This speech interface for blind and low vision users supports web messaging.
36. Amiglia: Help students make connections and learn about their family history with this site, which includes albums, a family Facebook, calendars, games and more.
37. Google latitude: Teens with learning and social disorders may want to use this tool, which allows friends and family to track the teen’s location through their phone.
38. GoodReads: This online book club can help students stay on top of their reading and learn how to discuss and analyze books.
39. LivingSocial: This social cataloging site can help special needs students work on organization skills while meeting new people, branching out of their comfort zone, and exploring their own interests.
40. 43Things: Help your student feel better and more focused about setting goals by introducing them to this site.

Organization

These tools are great for students who have trouble remembering, focusing and staying on task.

41. ListPool: Students can easily create to-do lists that they can share with tutors, teachers and parents here.
42. Todoist: Todoist is another straightforward task manager that works along with an online calendar.
43. MyStickies: Students can immediately jot down ideas on websites using MyStickies.
44. Notefish: Notefish is a web tool that lets you manage projects while you research online. Special needs kids will like being able to drag and drop images, color pages and annotate notes right from their browser without having to wait until later.
45. Diigo: Diigo is another tool that lets students highlight, bookmark, add sticky notes to and basically customize websites so that they’re easier to read, manage and share.
46. Nutshell: Students can work off their to-do list as they work online with Nutshell.
47. Remember the Milk: Help students stay focused on homework assignments and everyday chores with this to-do list, which can send you reminders via IM, text or e-mail.
48. MyProgress.com: Students will like this easy goal tracker that allows them to see how much progress they’ve made.
49. ChoreBuster: Teachers and parents of special needs kids can depend on this chore organizer to keep their home or classroom on track.

Study Skills and Test Prep

These study tools and concept mapping tools can help your special needs students more organized, focused and driven.

50. Mindomo: A mind mapping system like this clearly lays out concepts and facts for visual learners.
51. FreeMind: This free and open source mind mapping tool can work as a customizable study guide or study scheduler.
52. Comapping: Comapping is an organization and study tool that helps students take better notes, understand concepts visually, collaborate with other students and teachers, and become more engaged in the learning process.
53. iWriter: This system helps you incorporate text and audio so that your study system is more interactive and completely customized.
54. bubbl.us: This is a colorful site that allows users to create brainstorming maps and then print or share them with parents and teachers.
55. HomeworkSpot: Kids and teens can find lots of study, reference and exam help in all subjects on the HomeworkSpot.
56. MAPMYself: This organic mind mapping tool follows each person’s unique train of thought.
57. Discovery Education: Discovery’s education site has free tools, videos, guides and other multimedia resources for interactive learning.
58. Vision Learning: Teachers will find graphs and other interactive learning tools for studying mid-ocean ridges, cells, atoms, and more.
59. Multiple Choice and True/False Test-Taking Tips: Students with test anxiety or other learning disorders can use this guide to master multiple choice and T/F tests.

Visual and Hearing Impairment

These tools can help visual and hearing impaired students work online and more.

60. Thunder: Thunder helps visually impaired and blind web users navigate the Internet.
61. TextAloud: This system translates into all kinds of languages and dialects, including US and UK English, LA Spanish, and more.
62. Pics4Learning.com: This image library for teachers and students can help hearing impaired students as well as students with other learning disabilities.
63. Another Lens: Hover your mouse over a selected area to view a magnified version.
64. ReadPlease: This text-to-speech software works on Windows computers.
65. e-Captioning: Research closed captioning and subtitling tools here.
66. BrainPOP: This colorful, dynamic learning site has all kinds of resources for engaging learners without using sound.
67. NonVisual Desktop Access: NVDA is a free, open source screen reader that uses text-to-speech and Braille.
68. iZoom: With iZoom, visually impaired students can magnify their computer screens.
69. BIGGY: Features included in this toolkit include bigger fonts, cursors and more for your word processor.

Web Surfing

By using these tools, special needs students, including blind and low vision students, can access all that the Internet has to offer.

70. Web Design: These toolkits help teachers and anyone else set up websites that accommodate special needs visitors.
71. WebbIE: This program helps blind and visually impaired individuals access the web.
72. Web Talkster: This free talking web browser makes it easier for the visually impaired to use the Internet.
73. SpringerLink: HTML structure is accessed through audio technology with SpringerLink.
74. BrailleSurf: This Internet browser for blind and low vision users operates a speech synthesizer.
75. Communicate: Webwide: This program makes the Internet more accessible and includes symbol and full speech support.
76. LowBrowse: Lighthouse International’s tool is an add-on to Firefox that features image enlargement, speech capability and page customization.
77. EIA: The Enhancing Internet Access system works with a specialized web browser for special education and rehabilitation environments.
78. ZAC Browser: This browser is the first web browser just for autistic children.
79. Homer: Homer is a simple but effective web browser for the blind.

Just for Teachers

These special needs educator resources and tools help with lesson plan design, classroom design, and more.

80. FASD Toolbox for Teachers: Teachers working with kids with Fetal Alcohol Spectrum Disorder can use this special needs handbook to learn how to teach study skills, problem solving, math and social skills.
81. Classroom Management: This toolkit can help teachers work with special needs kids more effectively.
82. StudyDog: Special ed teachers of Pre-K, kindergarten and 1st grade students will find lesson plans for interactive reading assignments here.
83. Special Education: New special ed teachers learn how to use bulletin boards, set up their classrooms and prepare for their unique students.
84. Resources for Early Childhood Special Education: Preschool Zone: Preschool teachers with special education students in their classes can turn to this toolkit for lesson plans and more.
85. Education Ideas and Resource: Special Needs Special Kids has put together these tools and guides for teaching young kids basic skills.
86. Outside the Box! Especially for Teachers: Special needs and special education teachers can use the glossaries, articles, curriculum ideas, assessment tools and more on this site.
87. AT Basics: Learn how to set up your keyboard, computer and classroom for hearing and visually impaired students.
88. SERGE: Check out the Special Education Resources for General Educators site for a FAQ page, tools, and support.
89. teAchnology: The Online Teacher Resource has a special education page for teachers of students with behavior problems, physical disabilities and more.
90. National Association of Special Education Teachers: NASET’s website offers all kinds of resources, references and tools for special education teachers.

Games and Activities

Help special needs students learn by playing games, using virtual reality systems and beyond.

91. Do2Learn: Special needs kids and their parents will find songs, games and other activities to help them learn how to use the phone, stay safe on the bus, and more.
92. Google Earth: Google Earth is a fun, interactive web tool for studying the Earth, maps and more.
93. Parent Pals Special Education Games: This collection of games includes four levels of activities and over 200 different games.
94. Virtual Reality Special Needs Software: These video games and virtual reality games teach life skills and more to special needs students.

Physical Disabilities

Wheelchair-bound students and students with other physical disabilities will find lots of great learning tools here.

95. Ultra Hal Assistant: This digital assistant helps special needs students stay organized.
96. Tips for Working with Students in Wheelchairs: This guide for teachers offers tips for classroom design and more.
97. No-Keys Virtual Keyboard: This virtual keyboard can use various pointing devices to type.
98. ShortKeys: This text replacement program offers helpful shortcuts for students with limited movements.
99. Camera Mouse: This free program lets students move their heads to control their mouse pointers.
100. Click-N-Type: Click-N-Type is another virtual keyboard that’s free.

Mitchell H. Rubinstein

Private Montessori School Must Prove Actual Damages To Recover Tuition Based Upon Breach of Contract

In Contract Dispute, School Must Prove Damages to Collect Tuition is an interesting Aug. 31, 2009 New York Law Journal article about Gunderson v. Park West Montessori Inc., 602195/08 (N.Y. Co. 2009). Briefly, parents signed a contract to enroll their child in a Montessori School. 5 months before school was to start, they notified the school that they could not attend because the parents got a job out of state.

The court denied summary judgement to the school and granted the parents application for discovery. New York Supreme Court Justice Tolub held that a "anticipatory" or "liquidated" damages clause must be "reasonable and proportionate to the probable loss.Otherwise, it pay be a penalty. If an amount is plainly disproportionate to real damage and is not intended to provide fair compensation it may be a penalty under New York law.

Stay tuned. The parents won this battle, but they may ultimately loose the war. We will have to see.

Mitchell H. Rubinstein

Court Dismisses Discrimination Case Against School District Which Refused To Allow Hearing Impaired Student To Guide Dog To School

Matter of East Meadow Union Free School Dist. v. State Division of Human Rights, ___A.D.3d___( 2d Dep't. Sept. 29, 2009), is an important decision to be aware of. After the school district refused to allow a hearing impaired student to bring a guide dog to school, the student sued in federal court. That case, which went to the 2d Circuit, was dismissed because plaintiffs remedies were under the IDEA.

Plaintiff also brought an employment discrimination administrative charge with the NYS Division of Human Rights which concluded that the School Districts policy was discriminatory. The 2d Department dismisses that case without reaching the merits of the controversary. Why?  Because a school district is not an "education corporation or association" within the meaning of Executive Law § 296(4). Rather, it is a municipal corporation. As the court explains:

Although the General Construction Law does define both "education corporation" and "school district," it establishes that they are mutually exclusive. Pursuant to General Construction Law § 65(a), a corporation is either a public corporation, a corporation formed other than for profit, or a corporation formed for profit (see General Construction Law § 65[a][1]); it cannot be more than one of these. An "education corporation" is a type of corporation formed other than for profit (General Construction Law § 65[c]). A "school district," by contrast, is a type of "municipal corporation" (General Construction Law § 66[2]). Since a "municipal corporation" is a public corporation (General Construction Law § 66[1]), a school district is a public corporation. Hence, a school district cannot be an "education corporation" within the meaning of Human Rights Law § 296(4).

I am a bit surprised that the court narrowly interpreted the Human Rights statute in this manner. I suppose it did not want to reach the merits of the case as it involves a situation where both sides may be right. The student needs his guide dog and the school needs to be concerned that others may be allergic to the dog.

Look for an application for leave to appeal to be filed the NYS Court of Appeals.

Mitchell H. Rubinstein