By Winona W. Zimberlin
The goal of this chapter is to provide an overview of the basic background required to represent students who are involved in disputes with schools. The rights of students in public schools, private schools and post-secondary institutions are discussed. The additional protections for students with disabilities are discussed. Procedures for Connecticut hearings are addressed. The chapter contains a review of the leading case law and an overview of the most significant legislation on both the state and federal level.
Individuals With Disabilities Education Improvement Act of 2004, Pub.L.108-446, 20 U.S.C. §1400 et seq.
Section 504 of the Rehabilitation Act of 1973, 29 U.S. C. §794
Title IX of the Education Amendments of 1972, 20 U.S. C. §1681
Americans With Disabilities Act of 1990, Pub. L. No. 101-336, 42 U.S.C. ch.126
Conn. Gen. Stat. §10-76a (Special education)
Conn. Gen. Stat. §10-184 (Attendance)
Conn. Gen. Stat. §10-184a (Refusal of consent)
Conn. Gen. Stat. §10-186 (Attendance. Hearings)
Conn. Gen. Stat. §10-187 (Appeal)
Conn. Gen. Stat. §10-233c (Suspension)
Conn. Gen. Stat. §10-233d (Expulsion)
Conn. Gen. Stat. §10-233e (Notice as to disciplinary policies)
No Child Left Behind, Pub.L. 107-110, 20 U.S.C. §6301 et. seq.
Family Educational Rights and Privacy Act, 20 U.S.C. §1232g
Conn. Gen. Stat. §17a-101a (mandated reporters)
Conn. Gen. Stat. §19a-581-585
Conn. Gen. Stat.§10-154a(drug and alcohol communications)
Conn. Gen. Stat.§10-22d (bullying)
Conn. Gen. Stat.§10-15b (noncustodial parents)
Conn. Gen. Stat.§ 46b-56e (noncustodial parents)
34 C.F.R. Part 104 (§504)
34 CFR §200 (No Child Left Behind)
34 CFR PARTS 300 AND 301
34 C.F.R. Part 106
34 C.F.R. Part 99 (FERPA)
Conn. Reg. Of State Agencies, §10-76h-1 et seq.
Amendment 14, US Constitution, provides that a state may not deprive any person of life, liberty or property without due process of law.
Article eighth, §1, Connecticut Constitution, provides that there shall always be free public elementary and secondary schools in the state.
Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), 343 F. Supp. 279 (E.D. Pa. 1972) and Mills v. Board of Education, 348 F. Supp. 866 (D.D.C. 1972)
Bd. of Educ. v. Rowley, 458 U.S. 176 (1982)
Irving Independent School District v. Tatro, 468 U.S. 883 (1984)
Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999)
Burlington School Committee v. Dept. of Education, 471 U.S. 359 (1985)
Honig v. Doe, 484 U.S. 505 (1988)
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455 (2006)
Schaffer v. Weast, 546 U.S. 49 (2005)
Gonzaga University v. Doe, 122 S.Ct. 2268 (2002)
Gupta v. New Britain General Hospital, 239 Conn. 574 (1996)
Goss v. Lopez, 419 U.S. 565 (1975)
Packer v. Board of Education, 246 Conn. 89 (1998)
Mitchell v. King, 169 Conn. 140 (1975)
Gebser v. Lago Vista Independent School District, 524 U.S. 247 (1988)(Title IX)
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)
Foundations of Special Education law
Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971), 343 F. Supp. 279 (E.D. Pa. 1972) and Mills v. Board of Education, 348 F. Supp. 866 (D.D.C. 1972), were early cases challenging the exclusion of children with disabilities from public school, founded upon constitutional law principles of equal protection and due process of law.
IDEA – The central piece of legislation is the Individuals with Disabilities Education Act (IDEA), formerly known as the Education of the Handicapped Act. IDEA has been amended several times, most significantly in 1997 and 2004. The discussion in this chapter deals with the 2004 version of IDEA. See also regulations at 34 C.F.R Parts 300 and 301. IDEA requires that states accepting federal funding for education establish a goal of providing education to children with disabilities, and provide procedural protections to parents. States are required to educate children with disabilities in the least restrictive environment. A child with a disability is entitled to a free appropriate public education (FAPE). This is defined as special education and related services in conformity with the individualized education program (IEP). The IEP is a document developed in a meeting (IEP meeting) with the parents, teachers, school administrators, and other. It includes a statement of the childs present level of educational performance, a description of the necessary special education services, annual goals and short term objectives, description of required related services, and the objective criteria and evaluation methods to determine if the goals are met. Parents are provided with a hearing procedure to challenge an IEP.
Major provisions of IDEA 2004
20 U.S.C.§1400: Findings and Purposes
The purpose of the law is to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment and independent living and to ensure that the rights of children with disabilities and parents of such children are protected. Congress reported that over 30 years of research and experience demonstrated that special education would be more effective by having high expectations for such children and ensuring their access to the general education curriculum in regular classrooms, to the maximum extent possible, to meet the challenging expectations that have been established for all children and to be prepared to lead productive and independent lives to the maximum extent possible. Congress found that implementation of this title has been impeded by low expectations, and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities.
20 U.S. C. §1412 State Eligibility
A State is eligible for assistance if the State submits a plan that provides assurances to the Secretary that the State has in effect policies and procedures to ensure that the State meets each of several specified conditions, which include:
Free Appropriate Public Education this must be available to all children with disabilities residing in the State between the ages of 3 and 21 inclusive, including children with disabilities who have been suspended or expelled from school. There are certain exceptions for children aged 3 through 5 and 18 through 21 if this would be inconsistent with State law.
Child Find All children with disabilities residing in the State who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving special education and related services.
Individualized Education Program An IEP or IFSP (individualized family service plan) is developed, reviewed and revised for each child with a disability.
Least Restrictive Environment To the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
20 U.S.C. §1414 Evaluations, Eligibility, IEPs, Educational Placements
A State or local educational agency (LEA) shall conduct a full and individual initial evaluation before the initial provision of special education and related services to a child with a disability. This must be completed within 60 days of receiving parental consent. The agency shall obtain informed consent from the parent before conducting the evaluation. Parental consent for evaluation shall not be construed as consent for placement for receipt of special education and related services. If a parent does not consent to initial evaluation, the school may pursue due process. If the parent does not consent to special education services, the school may not file for due process to override that consent.
A reevaluation shall occur not more frequently than once a year, unless the parent and LEA agree otherwise and at least once every three years, unless the parent and LEA agree that a reevaluation is unnecessary.
In conducting an evaluation, the LEA shall use a variety of assessment tools and strategies to gather relevant functional, developmental and academic information, including information provided by the parent. The LEA may not use any single measure or assessment as the sole criterion for determining whether a child is a child with a disability or determining an appropriate educational program. The child must be assessed in all areas of suspected disability.
In determining whether a child has a specific learning disability, an LEA shall not be required to take into consideration whether a child has a severe discrepancy between achievement and intellectual ability in oral expression, listening comprehension, written expression, basic reading skill, reading comprehension, mathematical calculation or mathematical reasoning. The LEA may use a process that determines if the child responds to scientific, research-based intervention as a part of the evaluation procedures.
Individualized Education Programs (IEP) An IEP is a written statement of each child with a disability that is developed, reviewed and revised in accordance with the statute and includes a statement of the childs present levels of academic achievement and functional performance; a statement of measurable annual goals, including academic and functional goals; a description of the childs progress toward meeting the annual goals will be measured and when periodic reports on the progress of the child will be provided; a statement of the special education and related services and supplementary aids and services, based on peer reviewed research to the extent practicable to be provided to the child; a statement of the program modifications or supports for school personnel; an explanation of the extent, if any, to which the child will not participate with nondisabled children in the regular class; the projected date for the beginning of the services, the frequency, location and duration of those services; and beginning when the child is 16, appropriate measurable postsecondary goals based upon age appropriate transition assessments.
IEP Team consists of the parents, at least one regular education teacher of the child, at least one special education teacher of the child, a representative of the LEA, an individual who can interpret the instructional implications of evaluation results, and other individuals who have knowledge or special expertise regarding the child, and whenever appropriate, the child.
20 U.S.C. §1415- Procedural Safeguards: Significant provisions include
the right to examine all records;
the right to participate in meetings with respect to the identification, evaluation and educational placement of the child, and the provision of a free appropriate public education to the child;
the right to written prior notice whenever the LEA proposes to initiate or change or refuses to initiate or change the identification, evaluation or educational placement of the child;
the right to an opportunity for mediation;
the right to an opportunity to present a complaint with respect to any matter relating to the identification, evaluation or educational placement of the child or the provision of a free appropriate public education to the child. The party filing a due process hearing must provide detailed written notice to the other party. Either party may bring an attorney to the hearing, present witnesses, cross-examine witnesses, present evidence, and appeal the decision of the hearing officer. An appeal must be filed within 90 days unless the State has an explicit time limitation for bringing such action. A State may adopt a one tier or two tier hearing system. A hearing must be requested within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or if the State has an explicit time limitation for requesting such a hearing, in such time as the State law allows. The two year limit does not apply if the parent was prevented from requesting a hearing because of misrepresentations by the LEA or because the LEA withheld information it was required to provide. A party is entitled to a written decision, and a written record of the hearing.
In any action brought under this section, the court may award reasonable attorneys fees to a prevailing party who is the parent of a child with a disability and to a prevailing party who is a State educational agency or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable or without foundation or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable or without foundation or to a prevailing State educational agency or LEA against the attorney of a parent, or against the parent, if the parents complaint of subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
Attorneys fees may not be awarded and related costs may not be reimbursed for services performed subsequent to the time of a written offer of settlement to a parent if the offer is made at any time more than 10 days before the proceeding begins; the offer is not accepted within 10 days and the court or hearing officer finds that the relief finally obtained by the parents is not more favorable to the parents than the offer of settlement. Attorney fees may not be awarded relating to any meeting of the IEP Team unless such meeting is convened as a result of an administrative proceeding or judicial action or, at the discretion of the State, for a mediation. A parent may be awarded fees if the parent was substantially justified in rejecting the settlement offer.
Discipline If a child with a disability violates a code of student conduct, the child may be suspended for up to ten days. If the school seeks an expulsion, within 10 school days of any decision to change the placement of the child, a manifestation IEP meeting must be held. The team shall review all relevant information to determine if the conduct in question was caused by, or had a direct and substantial relationship to the childs disability or if the conduct was the direct result of the LEA s failure to implement the IEP. If so, then the conduct shall be determined to be a manifestation of the childs disability.
If the conduct was a manifestation of the childs disability, the team shall conduct a functional behavioral assessment and implement a behavioral intervention plan or review an existing behavioral intervention plan and modify it, as necessary, to address the behavior, and return the child to his previous placement, unless placed in an interim alternative educational setting.
Interim alternative educational setting A child can be placed in an interim setting for not more than 45 school days without regard to whether the behavior is determined to be a manifestation of the childs disability, in cases where a child carries or possesses a weapon to or at school, on school premises, or to or at a school function; knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, at school, on school premises, or to or at a school function; or has inflicted serious bodily injury upon another person while at school on school premises, or to or at a school function.
Protections for Children Not Yet Eligible for Special Education –
A child who has not been determined to be eligible for special education and who has engaged in behavior that violates a code of conduct may assert any of the protections provided in this part if the LEA had knowledge that the child was a child with a disability before the behavior that the precipitated the disciplinary action occurred. The LEA shall be deemed to have knowledge if the parent of the child has expressed concern in writing to supervisory or administrative personnel or a teacher of the child that the child is in need of special education; the parent has requested an evaluation of the child; or the teacher or other personnel of the LEA has expressed specific concerns about a pattern of behavior demonstrated by the child, directly to the director of special education of such agency or to other supervisory personnel of the agency. An LEA shall not be deemed to have knowledge if the parent has not allowed an evaluation of the child or has refused services or if the child has been evaluated and it was determined that he child was not a child with a disability.
If the LEA does not have knowledge that a child is a child with a disability the child may be subjected to disciplinary measures applied to children without disabilities who engaged in comparable behaviors.
Entitlement to Free Appropriate Public Education
Bd. of Educ. v. Rowley, 458 U.S. 176 (1982) was the first EHA (now IDEA) case decided by the Supreme Court. Rowley involved a challenge to an IEP by the parents of a deaf girl. Amy Rowley was a better than average student and was advancing from grade to grade in school. Her IEP called for the use of a hearing aid, one hour of tutoring a day, and three hours of speech therapy a week. Her disabilities prevented her from hearing everything in her classroom. The school declined to provide the sign language interpreter requested by the parents. The Supreme Court interpreted the phrase free appropriate public education. It held that a school is not required to maximize the education given to students, but that Congress intended primarily to make public education available to handicapped children. The Court reasoned, But in seeking to provide such access to public education, Congress did not impose upon the States any greater substantive educational standard than would be necessary to make such access meaningful. Access would be meaningful if it conferred some educational benefit on the student. Since Amy was in a regular classroom, was performing above average, and was advancing from grade to grade, Amy was achieving meaningful access. The Court found that Amy did not require an interpreter. The Court did not set forth any one test for determining the adequacy of educational benefits conferred upon all children. Rowley specifically limited itself to its particular facts, which involved a child in a mainstream class who was achieving substantial benefit from her education.
Rowley is also noteworthy for the emphasis the Court placed on compliance by the school with procedures under IDEA. In Rowley, the Court ruled that the special education and related services offered to a child with disabilities must meet two criteria in order to be “appropriate” for the purposes of IDEA: (1) the IEP must be developed in accordance with the procedures set forth in IDEA, including those governing resolution of disputes between parents and school systems and (2) the IEP must be “reasonably calculated” to enable the child to receive educational benefits.
Rowley established a two prong analysis to determine an appropriate education requiring both procedural and substantive components. The procedural process, which includes the parent’s recourse to due process hearings, was the mechanism through which parents could both participate in the development of appropriate programming and through which the “appropriateness” of programming could be contested. Subsequent to Rowley, many challenges have been made by parents claiming that the school has not complied with IDEA procedures, thus resulting in a denial of FAPE.
Irving Independent School District v. Tatro, 468 U.S. 883 (1984), held that clean, intermittent catheterization was a related service under IDEA. The Court held that this service could be performed by a nurse or other qualified person; therefore this service was required for a child with a neurogenic bladder. Related services do not have to be educational in nature; this was a service which enabled the child to remain in school all day. Nursing services were distinguished from medical services, which need not be provided, unless they are for diagnosis or evaluation. Medical services are those provided by a licensed physician.
Cedar Rapids Community School District v. Garret F., 526 U.S. 66 (1999), followed Tatro. Garret required bladder catheterization, tracheotomy suctioning and ventilator maintenance. These services did not need to be performed by a medical doctor. The Court held that the school was required to provide these services, and rejected the schools argument regarding the expense of providing the services.
Burden of Persuasion
Schaffer v. Weast, 546 U.S. 49 (2005), held that the burden of persuasion in an administrative hearing challenging an IEP is properly placed upon the party seeking relief, whether that is the disabled child or the school district. The Court noted that IDEA requires school districts to create an individualized education program (IEP) for each disabled child, and that parents challenging their childs IEP may request an impartial due process hearing, but IDEA does not specify which party bears the burden of persuasion at the hearing. Because IDEA is silent on the allocation of the burden of persuasion, the Court began with the ordinary default rule that plaintiffs bear the burden regarding the essential aspects of their claims. Although the ordinary rule admits of exceptions, decisions that place the entire burden of persuasion on the opposing party at the outset of a proceeding are extremely rare. Absent some reason to believe that Congress intended otherwise, the Court concluded that the burden of persuasion lies where it usually falls, upon the party seeking relief. Petitioners arguments for departing from the ordinary default rule were rejected.
The Court noted that several states have laws or regulations which place the burden on the school district. Because this case did not involve such a law or regulation, the Court did not reach that issue. This leaves open the claim that Connecticut, which has such a regulation, may place the burden of persuasion on the school district.
Burlington School Committee v. Dept. of Education, 471 U.S. 359 (1985), involved parents who unilaterally placed their child out of district, and then sought reimbursement for tuition from the public school. The Court held that parents could obtain reimbursement for tuition for their child, if the public school program was not appropriate. If the hearing officer determines that the public school program was appropriate, the parents do not receive reimbursement for tuition.
Florence County School District IV v. Carter, 510 U.S. 7 (1993) held that parents who unilaterally place their child in a private school that is not state approved may receive tuition reimbursement, as long as the public schools placement was not appropriate and the private school placement was appropriate. The Court stated that, [I]t hardly seems consistent with the Acts goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the childs needs in the first place.
Stay Put Except as otherwise provided, during the pendency of any proceedings, unless the parties otherwise agree the child shall remain in the then-current educational placement of the child.
Honig v. Doe, 484 U.S. 505 (1988) involved interpretation of the stay-put provision of EHA. A student was emotionally disturbed and was suspended indefinitely for violent and disruptive conduct related to his disability. The student filed suit alleging that the expulsion violated EHA, and seeking injunctive relief. The Court first ruled that the case was not moot as to respondent Smith, because he was under 21 and had not yet completed high school. There was a reasonable likelihood that Smith would again suffer the deprivation of EHA mandated rights that gave rise to the suit. The Court held that the stay-put provision prohibits state or local school authorities from unilaterally excluding disabled children from the classroom for dangerous or disruptive conduct growing out of their disabilities during the pendency of review proceedings. The statute was unequivocal in its mandate that the child shall remain in the then-current educational placement. This demonstrates a Congressional intent to strip school of the unilateral authority they had traditionally employed to exclude disabled students, particularly emotionally disturbed students, from school. This does not leave schools without a remedy for dangerous students. Temporary suspensions for up to 10 school days for students posing an immediate threat to others safety, and interim placements by agreement can be used. If agreement cannot be reached, school officials may file suit for injunctive relief. In such a suit, the statute effectively creates a presumption in favor of the childs current educational placement which school officials can rebut only by showing that maintaining the current placement is substantially likely to result in injury to the student or to others.
The Court also held that the district court may, in the exercise of its equitable powers, order a State to provide educational services directly to a disabled child when the local agency fails to do so.
Reimbursement of Expert Fees in Due Process Proceedings
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455 (2006) reversed a Second Circuit decision which had held that a prevailing parent in a due process hearing could obtain reimbursement of expert fees as part of recoverable attorney fees. The Supreme Court held that Congress enacted IDEA pursuant to the Spending Clause. IDEA is a statutory framework that supplies federal funds to state and local agencies for the education of children with disabilities. This funding is dependent upon state compliance with specific goals and procedures. Congress has broad power to create the terms of compliance, but these conditions must be unambiguously established. IDEA must be viewed from the State perspective by asking whether a state would accept funding in spite of its accompanying obligations. Clear notice must have been provided in IDEA about the obligation to pay expert fees. The Court held that the text of IDEA did not specifically provide that a school may be held responsible for reimbursing prevailing parents for expert services, therefore, expert fees may not be granted to the parents.
CONN. GEN STAT. §10-76d SPECIAL EDUCATION
Connecticut state law provides that each board of education shall provide the services requisite to identification of children requiring special education, identify each such child within its jurisdiction, determine the eligibility of such children for special education, and prescribe suitable educational programs for eligible children. PPT or planning and placement team is Connecticuts term for an IEP team. Connecticut has regulations, at Conn. Reg. Of State Agencies, §10-76h-1 et seq. which provides procedures for due process hearings.
EXPULSIONS AND SUSPENSION
Conn. Gen. Stat. §10-233d Expulsion
A child may be expelled for up to one calendar year. Unless an emergency exists, a hearing is required. The child may be represented by counsel, bring witnesses, cross examine witnesses, and introduce exhibits. A child may be expelled whose conduct on school grounds or at a school sponsored activity is violative of a publicized policy of the board, is seriously disruptive of the educational process or endangers persons or property or whose conduct off school grounds is violative of such policy and is seriously disruptive of the educational process. In making a determination as to whether conduct is seriously disruptive of the educational process, the board may consider, but such consideration shall not be limited to: whether the incident occurred within close proximity of a school; whether other students from the school were involved or whether there was any gang involvement; whether the conduct involved violence, threats of violence or the unlawful use of a weapon and whether any injuries occurred and whether the conduct involved the use of alcohol. Expulsion proceedings shall be required whenever there is reason to believe that any pupil on school ground or at a school sponsored activity, was in possession of a firearm or deadly weapon, dangerous instrument or martial arts weapon, or off school grounds, did possess such a firearm or did possess and use such a firearm, instrument or weapon in the commission of a crime or on or off school grounds, offered for sale or distribution a controlled substance. Such a pupil shall be expelled for one calendar year; provided the board may modify the period of expulsion on a case by case basis.
A pupil under age 16 shall be offered an alternative educational opportunity. A pupil between 16 and 18, who is expelled for the first time, shall be offered an alternative education if he or she complied with conditions established by the board. An alternative education need not be provided for a student if conduct endangers persons and it involved possession of a firearm, deadly weapon, dangerous instrument or martial arts weapon, on school property, or at a school sponsored activity or if the student offered for sale or distribution on school property or at a school sponsored activity a controlled substance.
A manifestation PPT must be held prior to conducting an expulsion for a child requiring special education.
An expelled pupil may apply for early readmission to school. Readmission shall be at the discretion of the board, or as delegated to the superintendent.
Expulsion Statute Void For Vagueness On Its Face
Mitchell v. King, 169 Conn. 140 (1975) concerned a predecessor to the current expulsion statute. This was an action for an injunction restraining the defendants from continuing the expulsion of plaintiff from a public school, and for damages. The student was permanently expelled from high school pursuant to its statutory authority to expel any student found guilty of conduct inimical to the best interests of a school. The Connecticut Supreme Court found that the expulsion statute, Gen. Stat. §10-234, was invalid as an illegal delegation of legislative power, in that it fails to give fair notice that certain conduct is proscribed and to distinguish between student conduct on or off school property and during or after school hour, and is unconstitutionally vague on its face. The Supreme Court further found that the trial court erred in awarding damages to the mother because the defendant board of education, as a state agency acting in a quasi-judicial capacity, enjoys governmental immunity. Suit was brought against defendants in their official capacity.
Expulsion For Off Campus Behavior
Packer v. Board of Education, 246 Conn. 89 (1998), found that Connecticuts expulsion statute, Gen. Stat. §10-233h, was void for vagueness and thus unconstitutional as applied to off campus behavior. Kyle Packer was arrested for having marijuana in the trunk of his car. This conduct occurred off campus. The Thomaston schools held an expulsion hearing where Kyle was expelled. At the hearing the principal testified that the incident has disrupted the educational process because students in Kyles brothers class were aware of the incident, a former student of Thomaston High School who had been involved with distributing drugs in the past, was present when Kyle was arrested and teachers approached the principal expressing concern over the arrest, and asked what action would be taken in response to the incident. The principal testified that, at the beginning of the year, students were informed that they would be held accountable for out of school conduct that had some impact on what happens in school. The board of education expelled the student on the ground that the conduct violated school policy against possession of illegal drugs and because his conduct seriously had disrupted the educational process. Plaintiff then brought a civil action seeking an order restraining and enjoining defendant from expelling him and seeking damages.
The Connecticut Supreme Court found that the statute authorizing expulsions for off campus behavior was void for vagueness. The void for vagueness doctrine is a procedural due process concept that originally was derived from the guarantees of due process contained in the fifth and fourteenth amendments to the United States constitution. The Connecticut constitution also requires that statutes with penal consequences provide sufficient notice to citizens to apprise them of what conduct is prohibited. The vagueness doctrine requires fair warning of what the law intends to do if a certain line is passed. Second, the vagueness doctrine requires that statutes establish minimum guidelines to govern their enforcement. If arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
The Court found that the student had a constitutionally protected property interest in his continued participation in the educational program at Thomaston High School. The defendant, consequently, may not expel the plaintiff for the incident unless the constitutional requirements of due process, including the principles of the void for vagueness doctrine, have been satisfied. The Court found that §10-233d(a)(1) could not be applied constitutionally to the facts of this case because the phrase seriously disruptive of the educational process did not provide any meaningful indication that having marijuana in the trunk of a car off school grounds after school hours subjects a student to expulsion, absent some tangible nexus to school operation. The statute did not vest school boards with discretion to characterize conduct that occurs off school grounds as seriously disruptive of the educational process solely because the conduct is violative of school policy. The defendants opinion of the meaning of the phrase seriously disruptive of the educational process was irrelevant to the question of whether the statute provided the plaintiff with constitutionally adequate notice. The Court concluded that §10-233d(a)(1) was unconstitutional as applied to the particular facts of this case and but was not unconstitutionally vague on its face. The legislature intended that the phrase seriously disruptive of the educational process to mean conduct that markedly interrupts or severely impedes the day to day operation of a school.
The expulsion statute was amended after Packer.
Due Process Required For Suspensions
Goss v. Lopez, 419 U.S. 565 (1975), provided the framework for evaluating claims of violation of due process for short term suspensions, that is 10 days or less. Several high school students were demonstrating in the auditorium and disturbing the educational environment. They refused to stop when asked by the principal. They were suspended for ten days without a hearing. This was in accord with Ohio statute. The students challenged the constitutionality of the statute on the ground that it did not provide for procedural due process except that parents be notified within 24 hours. At the Supreme Court, the school district first argued that there is no constitutional right to education, and so there could not be any protection from the fourteenth amendment. The Court held that the fourteenth amendment applies to all citizens whenever the state seeks to deprive them of life, liberty, or property, including students. Students have a property interest in education, which arose when the State made its decision to provide for education in its own constitution and establish a compulsory education law. Students also have a liberty interest in their education. A liberty interest is at stake whenever a persons good name, honor or reputation may be damaged because of state action. Suspensions of up to ten days could seriously damage the students standing with fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.
For suspensions of 10 days or less, a student must be afforded: 1. oral or written notice of the charges. 2. an explanation of the evidence if the student denies the charges, and 3. some kind of hearing so that the student has an opportunity to present his or her side of the story. More formal procedural safeguards such as the right to counsel, the opportunity to present witnesses, right of confrontation and cross-examination are not required for short term suspensions. There should not be a delay between the time when notice is given and the hearing. There is an emergency exception to the notice and hearing requirement. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from the school.
Conn. Gen. Stat. § 10-222d Policy on Bullying Behavior School boards must develop a policy to address the existence of bullying in school. Policies shall enable students to anonymously reports acts of bullying. The school is required to investigate written reports of bullying, and keep records of verified acts of bullying. Students must be notified annually of the process by which they may make reports of bullying. The policy must direct the development of case by case interventions for addressing repeated incidents of bullying.
FERPA FERPA is the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. §1232g; 34 CFR Part 99), also known as the Buckley Amendment. This law was enacted at a time when some schools denied parents access to their childs school records and did not accord any privacy rights to students in their records.
FERPA applies to schools that receive federal funds. This includes direct funds and indirect funds through grants or loans to students in attendance. FERPA give parents certain rights regarding educational records. These rights transfer to students at age 18 or when in a postsecondary institution. FERPA provides for:
- Access to the educational records, within 45 days
- Privacy in the educational records, with some exceptions
- A right to request an amendment of records and a hearing process regarding amendments
- A right to file a complaint with the Family Policy Compliance Office of the U.S. Department of Education
An educational record is a record that contains information that directly relates to a student that is maintained by the school. A record is broadly defined to include any information recorded in any way, which includes handwriting, print, computer media, video or audio tape, film, microfilm and microfiche.
A teachers hand scrawled note could be an educational record, as could a note written by a parent to a school. A teachers e-mail about a student to an administrator can also be an educational record. The student does not have to be identified by name the record just has to directly relate to the student. It does not matter where the record is maintained. Education records for college students are not limited to records maintained by the registrar. Documents in a professors file in his office might qualify as education records. A school cannot destroy FERPA protection for a document by hiding it in a separate file.
Not every piece of paper about a student is an educational record. There are exclusions to this broad definition. Two of the most frequently encountered exceptions are sole possession records and law enforcement unit records. Records in the sole possession of school personnel are excluded. A sole possession record is one which is in the sole possession of the maker and which is not accessible or revealed to any other person except a substitute. A teachers private notes, if they have been kept private, and used as a memory aid, are not education records, and therefore, the student or parent has no right to see those notes. The common practice of peer grading does not violate FERPA.
Parents have a right to a hearing if they claim that the information in their childs educational records is inaccurate, misleading, or otherwise in violation of the privacy rights of the student. The parent also has the right to insert a written explanation into the record regarding the content of the record.
Unless an exception applies, the school may not release educational records, other than directory information, without the parents consent. Records are either directory information or non-directory information. Directory information includes, name, address, phone number, dates of attendance, degree awarded, enrollment status and major field of study. Directory information may be disclosed without the written consent of the student, but the student can submit a written request to the school to limit disclosure. Laws other than FERPA may authorize disclosure of personally identifiable information from students education records. The No Child Left Behind Act of 2001 provides that schools are required to provide directory type information to military recruiters who request it. Parents have the right to opt out of this disclosure.
Non-directory information includes all other educational records. There is a right to confidentiality in these records. Unless an exception applies, these records cannot be shown or released to anyone without the prior written consent of the parent or eligible student. Even faculty and other school employees cannot always have access to these records they must have a legitimate need to see them. There will be an access log which shows who looked at the file, although the access log need not list parents, school officials with a legitimate educational interest, people who have written consent, people seeking directory information and parties seeking the records with a subpoena when the court or issuing agency has ordered that the existence or the contents of the subpoena not be disclosed.
There are over a dozen exceptions to the general rule of confidentiality. The trend in recent years has been to permit certain disclosures even without consent. Some of the most important exceptions are:
- School officials whom the school has determined to have a legitimate educational interest
- To a school in which the student seeks or intends to enroll
- The Attorney General of the United States
- To comply with a judicial order or subpoena, or litigation with the parent
- If there is a health or safety emergency
- At a postsecondary institution, disclosure to the victim of a crime of violence or sex offense of the final results of the disciplinary proceeding
- At a postsecondary institution, the final results of the disciplinary proceeding can be disclosed if the alleged perpetrator is a student and has violated the schools rules. The name of the victim, or other students, cannot be disclosed without their consent
- At a postsecondary institution, to the parent, if the student was under 21 and committed a disciplinary violation regarding alcohol or a controlled substance
Under FERPA, a school is permitted to transfer all education records, including disciplinary records, of a student who is transferring to another school. No Child Left Behind changes this. NCLB, 20 U.S. C. §7165, requires that states have a procedure to transfer disciplinary records, with respect to a suspension or expulsion, by schools to any other elementary school or secondary school for any student who is enrolled or seeks to enroll in that school.
FERPA is enforced by the Family Policy Compliance Office (FPCO), which is part of the U.S. Department of Education. While there is authority allowing federal funds to be cut off if there is a violation, this is not likely to occur. The FPCO will respond to individual complaints with an investigation. There is no right to a personal hearing. Instead, FPCO will respond to a complaint by an individual student by soliciting the written response of the school. The FPCO also provides technical assistance to schools. Ultimately, the FPCO will make a determination as to whether the school violated FERPA. Do not expect quick results. It will take many months for this investigation. A decision might well be over a year away.
While there is no private right of action under FERPA, there still may be a claim under state tort law for invasion of privacy. There may also be injunctive relief under FERPA to stop a school from releasing educational records.
Parents and college students are justifiably concerned with campus crime. The Crime Awareness and Campus Security Act of 1990 requires that colleges publish and distribute an annual security report which includes campus crime statistics. Some states have their own version of a crime statistics law. Students who want more information may turn to state freedom of information laws seeking information about public schools. College officials may be reluctant to share the details of crimes committed on campus, often asserting that FERPA requires them to protect the privacy interests of the students who are involved.
Because of a 1992 amendment to FERPA, campus law enforcement records are not education records and are exempt from FERPA protection. If records are created by the law enforcement unit for a law enforcement purpose and maintained by the unit, the student has no right of access to them under FERPA. If the campus police gives a copy of the police report to an administrator for use in a school discipline proceeding, the record is no longer exempt. School administrators cannot hide their discipline records by giving them to campus police, or asking the police to do all the investigation which will lead to an expulsion. Education records do not lose their status as educational records while in the possession of the law enforcement unit. Similarly, records created by the law enforcement unit exclusively for a non-law enforcement purpose, such as a disciplinary action conducted by the school, are not covered by the law enforcement exception.
Victims may be informed of the final results of a disciplinary proceeding against an alleged perpetrator regardless of the outcome of that proceeding. A college may disclose, to the public, the final results of disciplinary proceedings in which a student is found to be in violation of school rules for committing a crime of violence or a nonforcible sex offense. The school cannot disclose the name of any other student, including a victim or witness, without the prior written consent of the other student. The regulations do not require this disclosure. Disclosure is permissive. Schools are free to make their own policies regarding disclosure. Schools may disclose information concerning sex offenders that they receive under State sex offender registration and community notification programs.
When Congress passed the Patriot Act in response to the September 11 terrorist attacks on the United States it amended FERPA, allowing broad, non-consensual disclosure of educational records. The Attorney General may submit a written application to a court for an ex parte order requiring an educational agency to permit the AG to collect educational records that are relevant to an authorized investigation or prosecution of terrorism crimes. The Patriot Act also amends FERPAs record keeping requirements the school does not have to keep a record of that disclosure. An educational institution that, in good faith, produces information from education records in compliance with an ex parte order issued under the amendment shall not be liable to any person for that production.
Connecticut Provides Additional Rights
Conn. Gen. Stat. §10-15b provides that parents are entitled to access to all educational, medical records and similar records, with certain exceptions. Connecticut Reg. §10-76d-18, relating to children requiring special education, provides that each board of education shall have policies and procedures to ensure the confidentiality of education records. Parents have the right to inspect and review any education records relating to their child which are collected, maintained or used by the board of education. A request to review a childs records shall be in writing. The board of education shall comply with such request within ten days of such request, or within three days if the request is in order to prepare for a PPT or due process hearing. A parent is entitled to one free copy. The board must comply with that request within five school days of receipt of the request. This is an exception to this: a recent amendment to this regulation provides that any test instrument for which the test manufacturer asserts a proprietary or copyright interest shall not be copied. Under a recent statutory amendment, noncustodial parents must be provided with all school notices that are provided to the custodial parent.
More stringent confidentiality provisions are in effect for HIV information. Confidential HIV information may not be released to any person (including teachers) other than a health care provider without a written release. By contrast, communications concerning drug or alcohol abuse made in confidence by a student to a teacher or other school professional may be disclosed by the professional employee. The professional is immune from liability for a good faith decision to disclose or not to disclose this information.
FERPA – No Private Right of Action
Gonzaga University v. Doe, 122 S.Ct. 2268 (2002), involved a claim by a student at a private educational institution. He sought to become a public school teacher, and to do so he was required to obtain an affidavit of good moral character from his college. The individual at his university who was responsible for teacher certification contacted the state agency responsible for certification, discussed allegations of the students sexual misconduct, and identified the student by name. The student sued in state court under 42 U.S.C. §1983 alleging a violation of the Family Education Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. 1232g, which prohibits the federal funding of schools that have a policy or practice of permitting the release of students education records without written consent of the parent or student. A jury awarded the student compensatory and punitive damages on the FERPA claim. The U.S. Supreme Court held that the students action was foreclosed because FERPA did not create a private right of action. The Court cited Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, where it made clear that unless Congress manifests an unambiguous intent to create individually enforceable rights, federal funding provisions provide no basis for private enforcement by §1983. Where a statute provides no indication that Congress intends to create new individual rights, there is no basis for a private suit under §1983. FERPAs provisions speak only to enforcement by the Secretary of Education. Furthermore, because FERPAs confidentiality provisions speak only in terms of institutional policy or practice, not individual instances of nondisclosure, they have an aggregate focus, and are not concerned with whether the needs of any particular person have been satisfied. The fact that recipient institutions can avoid termination of funding so long as they comply substantially with the Acts requirements, also supports a finding that FERPA fails to support a §1983 suit. The Act created the Family Policy Compliance Office, which has promulgated procedures for resolving student complaints about suspected FERPA violations. Finally, because FERPA prohibits most of the Secretarys functions from being carried out in regional offices, in order to allay the concern that regionalizing enforcement might lead to multiple interpretations of FERPA, it is implausible to presume that Congress nonetheless intended private suits to be brought before thousands of federal and state court judges.
SCHOOL ACCOMMODATIONS HEARINGS
Conn. Gen. Stat. §10-186 provides that each board of education shall furnish, by transportation or otherwise, school accommodations for any child five through 20, who is not a graduate of a high school or vocational school. This statute provides a hearing procedure for disputes involving school bus transportation and residency. A parent whose child is denied school accommodations may request a hearing with the local board of education. The board shall give the parent a hearing within ten days, make a record, and make a finding within ten days of the hearing. A child who is denied accommodations on the basis of residency may continue in attendance in the school district pending a hearing. A child residing in a dwelling located in more than one town in this state shall be considered of resident of each town in which the dwelling is located and may attend school in any one of such towns. The school has the burden of proving ineligibility by a preponderance of the evidence, except in cases of denial based on residency, where the parent has the burden of proving residency. The parent can appeal to the State Board of Education. The State Board will appoint a hearing board who will hold a hearing. The hearing board shall render a determination of actual residence if residency is at issue. Except in the case of a residency determination, the finding of the local board shall be upheld unless it is determined by the state hearing board that the finding was arbitrary, capricious or unreasonable. If the hearing board makes a determination that the child was not a resident of the school district and therefore not entitled to school accommodations from that district, the board of education may assess tuition against the parent. Either party may appeal to the Superior Court.
Title IX of the Education Amendments of 1972, 29 U.S.C. §1681 et seq. provides that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. Title IX has a broad reach, affecting sports participation, sexual harassment, employment, admissions, and all aspects of a schools relationship to its students. The Supreme Court and Congress recognize that sexual harassment of students can constitute discrimination prohibited by Title IX. Regulations have been enacted pursuant to Title IX, at 34 C.F.R. part 106.
In Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), which involved sexual harassment of a student by a teacher, the Court found that private individuals could sue schools for money damages under Title IX. Gebser v. Lago Vista Independent School District, 524 U.S. 247 (1988) also involved sexual harassment of a student by a teacher. The Court held that school districts are liable for money damages under Title IX only when a school official with authority to take corrective measure has actual knowledge of the harassment, and has acted with deliberate indifference. In Gebser, the principal had received complaints about the teacher making inappropriate remarks in the classroom. The Court, nevertheless, found that those complaints did not put the school district on notice of the teachers sexual harassment of Gebser. The teacher and the student engaged in a sexual relationship. The Court also found that the districts failure to have a grievance procedure or anti-harassment policy did not establish liability.
Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), held that school districts can be liable for student to student harassment. A school district may be liable if school officials exhibit deliberate indifference to known acts of peer sexual harassment.
Schools are required by Title IX regulations to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints, including complaints of sexual harassment, and to disseminate a policy against sex discrimination.
The Office of Civil Rights (OCR) in the U.S. Department of Education is responsible for enforcing Title IX. OCR published Revised Sexual Harassment Guidance in January 2001. The Guidance explains an educational institutions responsibility, as a condition of receiving Federal financial assistance, to take immediate and effective steps to end sexual harassment when it occurs, prevent its recurrence, and remedy its effects. The Guidance outlines standards applicable to OCRs enforcement of compliance in cases involving sexual harassment issues. It does not purport to discuss standards applicable to private Title IX lawsuits for monetary damages. OCR Guidance provides that sexual harassment is unwelcome conduct of a sexual nature. This can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal or physical conduct of a sexual nature. The Guidance sets forth OCR policy regarding a schools responsibilities, OCR case resolution, the appropriate school response to a complaint, prevention, grievance procedures, due process rights of the accused and first amendment concerns. OCR will investigate complaints and attempt to secure voluntary compliance. The school will have the opportunity to take reasonable corrective action before OCR issues a formal finding of violation.
Connecticut provides a definition of sexual harassment in the employment context in Conn. Gen. Stat. §46a-60(a)(8). Conn. Gen. Stat. §10a-55c(c) provides a definition of sexual harassment with respect to an individual enrolled at an institution of higher education.
DISCIPLINE HEARINGS IN INSTITUTIONS OF HIGHER EDUCATION
Institutions of higher education hold disciplinary hearings for such diverse issues as alcohol/drugs on campus; assaults; breach of peace complaints; harassment complaints; and academic dishonesty. Each institution will generally have detailed hearing procedures depending upon the type of violation charged, the seriousness of the incident, and whether or not charges are brought during a time when classes are in session. Procedural rights for students vary depending upon the school and whether or not the institution is public or private. A hearing board is generally established consisting of one or more persons, which may include students and/or faculty and/or administrators. The institution will typically limit or prohibit the ability of the student to be represented by an attorney at the hearing. There is generally a right of appeal to a school administrator.
Students in public institutions have a constitutional right to due process in disciplinary proceedings. Due process rights stem from property rights or a liberty interest in ones good name or reputation. Procedural due process rights in college disciplinary proceedings concern such issues as the right to receive fair notice of the specific charges including the names of witnesses testifying against the student and notice of evidence, and the opportunity to present a defense and witnesses on the students behalf.
Students in private institutions do not have constitutional rights if there is no state action involved. Students have attempted to characterize the action of a private school as state action when a significant interpendent relationship exists or when a private institution acts under color of state law. Student rights in disciplinary hearings brought by private institutions stem from breach of contract principles. A student handbook may guarantee fair process or use similar language which can be the basis of a breach of contract claim against a private institution which uses due process concepts as a standard. A private institution which does not follow its own rules can be subject to a breach of contract claim or claims of misrepresentation.
A court will show great deference to a university which suspends or expels a student for academic reasons, as opposed to a disciplinary reason.
NO CHILD LEFT BEHIND
The Elementary and Secondary Education, originally passed by Congress in 1965, was amended in 2001 as the No Child Left Behind Act, Pub.L.107-110, 20 U.S.C.§6301 et seq. The purpose of the statute is to ensure that all children will have a fair, equal, and a significant opportunity to receive a high quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments. Regulations are contained at 34 C.F.R.§200. NCLB requires that public school students achieve proficiency in reading and math by the 2013-14 school year, with sanctions on schools that fail to make expected progress. Schools must report on students by subgroup such as, ethnicity, disability, English language learners, and low income. All subgroups must be proficient in order for the school to meet the NCLB standard. Testing of students is mandated on an annual basis in grades 3-8. Some students will be eligible for supplemental education services such as tutoring. The statute provides for highly qualified teachers, research based instruction, increased parental rights, public school choice and schools accountability for student performance.
CAUSE OF ACTION FOR EDUCATIONAL MALPRACTICE REJECTED
Gupta v. New Britain General Hospital, 239 Conn. 574 (1996), involved a surgical resident who was dismissed during his residency program. Plaintiff physician contended that he had entered into an employment contract with defendant hospital. The Court first held that the residency agreement created a hybrid relationship containing both employment and educational features. Because of the hybrid nature of the residency agreement, the Court concluded that the agreement was more properly interpreted, by a functional analysis of its terms in relationship to the nature of the alleged breach, rather than by an overarching search for the purpose or purposes of the parties. In this case, the hospitals decision to dismiss the plaintiff for poor clinical performance constituted an academic, rather than employment, decision. The Court next considered plaintiffs claim that the hospital failed to provide him adequate training and held that this is a project that the judiciary is ill equipped to undertake. The Court found that tort principles of duty, standards of care, and reasonable conduct are difficult, if not impossible, to apply in the academic environment. Therefore, a claim of educational malpractice would not be recognized. The Court declined to undertake the task of defining what constitutes a reasonable educational program, to make judgments as to the validity of broad educational policies, or to sit in review of the day to day implementation of those policies. The Court next ruled that the policies forbidding the tort of educational malpractice likewise forbid a breach of contract claim based upon allegedly inferior instruction. The Court left open at least two situations wherein courts will entertain a cause of action of institutional breach of a contract for educational services. The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field. The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program. Simply alleging that an educational program is not good enough is not sufficient.
Plaintiff further contended that his dismissal was improper, even as an academic decision, because the decision to terminate his residency resulted from arbitrary, capricious, and bad faith conduct by the hospital. The Court held that educational discretion was not limitless. In exercising its professional judgment, an educational institution does not have license to act arbitrarily, capriciously or in bad faith. Such a substantial departure from academic norms may implicate substantive due process or may constitute the breach of an educational contract by a private institution. This is a heavy burden for plaintiff to meet. He must show that the hospitals decision had no discernable rational basis. Plaintiffs affidavit in opposition to the hospitals motion for summary judgment was insufficient to meet this standard.
Plaintiffs claim that the hospital violated the implied covenant of good faith and fair dealing was also rejected. Every contract carries an implied covenant of good faith and fair dealing requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement. Bad faith means more than mere negligence; it involves a dishonest purpose. Plaintiff failed to offer any independent evidentiary foundation to substantiate this claim.
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