1. Legal Issues in Education Elizabeth J. Taylor Assistant Superintendent and Legal Counsel Monroe County ISD November 30, 2009
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Notas do Editor
Can be held to the Student Code of Conduct for up to 10 days of suspension. After that, a manifestation hearing must be held to determine if the behavior is a manifestation of the student’s disability. Educational services must be provided for the suspended student who has reached that 10 th day. Limited removal from classroom question: Not a legal issue; more of a programatic or procedural issue. Michigan has a suggested Seclusion and Restraint policy which all schools in Monroe County have adopted. It places limitations on secluding and restraining students to prevent students from being isolated. It is up to the school and the special education staff to craft a behavior plan which takes into account how behaviors of one student may affect an entire class. Expulsion: A special education student can not be expelled like a regular student. They have a right to stay put while any testing, meetings or hearings are taking place. If the student is dangerous to others, an alternative educational setting may be set up .. But not necessarily at home. A manifestation hearing would have to be held prior to expulsion of a special education student 45 day placement: If it is a drug or weapons issue or serious bodily injury the S.E. student may be moved temporarily for 45 days to an alternative education setting without parental permission. District Policies for Expulsion: Michigan schools required to expel any student for weapons possession unless: The object was not possessed for use as a weapon, or for delivery to another for use as a weapon The student did not know s/he had the weapon with him or her The student did not know or have reason to believe the object was a dangerous weapon The weapon was carried at the suggestion or request of school or police authorities Board policies/codes of conduct can expand what a definition of a “dangerous weapon” is to include toy gun, bb gun, water pistol as school boards enjoy: School boards enjoy broad discretion in fashioning rules “relative to anything necessary for the proper establishment, maintenance, management, and carrying on of the public schools of the district, including regulations relative to the conduct of pupils concerning their safety while in attendance at school or enroute to and from school.”
Requirement was to expel for one year any student possessing a gun on school property Michigan schools required to adopt “zero tolerance” policies in 1995 in order to receive federal funds. MCL 380.1311 expand that to include possible, but not mandatory, expulsion for gross misbehavior, drugs, verbal assualt
Called the “snap suspension” a teacher may suspend a student from his/her class or activity for one full if the student’s conduct constitutes something for which the school board/code of conduct would permit a student to be suspended for. U.S. District Court case: 2003.. Vague and overbroad code of conduct language for what constituted a “verbal assault” Smith v. Mount Pleasant Public Schools, Case No. 01-10312 (E.D. Mich. Sept. 30, 2003). The case started in 2000 when a junior at Mt. Pleasant High School was suspended for 10 days after writing a parody of the school’s tardy policy, using derogatory language to describe the principal. The ACLU of Michigan and Smith filed suit in September of 2001, alleging that the district violated Smith’s First Amendment rights. While the Court found the state and district policy vague, it also found that the discipline did not violate Smith’s First Amendment rights, so a request to change his school records was denied. In December of 2003, the plaintiff’s motion for reconsideration was denied. 16 The Civil Rights Project at Harvard University and the Lack of alternative educational opportunities: Districts not required to provide any. Attempts to have ISD’s provide have failed.
FERPA: FERPA prohibits school districts from releasing personally identifiable information (other than directory information ) contained in a student’s education records to anyone but certain enumerated federal, state, and local officials and institutions, unless authorized by the student’s parent. Education record: all records, files documents and other materials containing information directly related to a student; and maintained by the education agency or institution, or by a person acting for such agency or institution. Personally identifiable information: “Personally identifiable” information includes, but is not limited to, a list of personal characteristics that would make the student’s identity easily traceable, or other information that would make the student’s identity easily traceable. Videotape: Strong evidentiary proof of student behavior, but likely is an education record Official Opinion: Video tape is an education record for EACH student pictured in the video (thus triggering FERPA protections – that is, a parent may only view his/her child on the video… no other child without written consent.. COULD BE A PROBLEM IF VIDEO CAM DOES NOT PERMIT REDACTIONS FOR EVIDENTIARY PURPOSES.) Unofficial Opinion: Given to school lawyers on case by case basis: The new unofficial guidance by the FPCO provides that video images are education records only for the students “directly related” to the focus or subject of the video (i.e., a fight, drug deal, or some other disturbance that causes the students to be the focal point of the video) Thus students not involved in altercation are just “set dressing” and their images are not covered by FERPA Five exempted categories – one that could apply is the Law Enforcement Exemption – designate one person as law enforcement, have that person maintain the surveillance records. As long as the videotapes are created for a law enforcement purpose (i.e., maintaining the physical security and safety of a school) and they remain in the possession of the law enforcement unit, the videotapes constitute law enforcement, rather than education, records. FOIA Issues: If maintained as a law enforcement record, district could claim an exception to the release and that, the disk would have to qualify as an investigatory record, and then the district would have the burden of proof to show that its disclosure would interfere with law enforcement proceedings, deprive a person of the right to a fair trial, or constitute an unwarranted invasion of privacy for the students who are shown on the video. If not a law enforcement record, the district would have to get consent from the parents involved to release to the media. The police would have to get a subpoena
Just cause includes incompetence, insubordination, unprofessional conduct, absenteeism, crimes against the Employer, intoxication and disruptive conduct. When incompetence is alleged, the Tenure Commission will consider factors such as the existence of clear professional standards, whether the standards were applied without discrimination, the number and quality of evaluations, the skill of the evaluator, whether specific suggestions and recommendations for improvement were made, whether the teacher was afforded the time and assistance to improve performance, and negative adverse effect on the students.
Just cause includes incompetence, insubordination, unprofessional conduct, absenteeism, crimes against the Employer, intoxication and disruptive conduct. When incompetence is alleged, the Tenure Commission will consider factors such as the existence of clear professional standards, whether the standards were applied without discrimination, the number and quality of evaluations, the skill of the evaluator, whether specific suggestions and recommendations for improvement were made, whether the teacher was afforded the time and assistance to improve performance, and negative adverse effect on the students.
1230d(4) and 1535a(4) and (5) of the Revised School Code deal with any felony, crimes of a sexual nature, child abuse
Listed offense is one that requires registration on SOR
No liability to staff person if they exercise reasonable necessary physical force
If you have a teacher with health issues that clearly affect their ability to teach, contract probably allows you to seek medical or psychiatric evaluation.
Michigan law has held that participant recording, even without the consent of the other party, is not eavesdropping; therefore, a participant can record for himself, but can’t have a third party record. Eavesdrop” or “eavesdropping” means to overhear, record, amplify or transmit any part of the private discourse of others without the permission of all persons engaged in the discourse. Neither this definition or any other provision of this act shall modify or affect any law or regulation concerning interception, divulgence or recording of messages transmitted by communications common carriers.
A “private place” is a place where a person may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access.
Check board policies and contracts for any language that may apply to a situation, such as a teacher picking up a student. Most likely your board policies will have something in them prohibiting this.
Or a record of having such an impairment, OR being perceived as having such an impairment. Major life activity also includes: the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, and reproductive functions. Some impairments are always considered a disability.. Such as deafness, blindness, missing limbs.
Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation. Some reasonable accommodations : Sign Language Interpreter for deaf person; regularly scheduled breaks for diabetic; someone to read information on a bulletin board for a blind person
Duty exists when a relationship between two people is contractual, assumed, common sense, statutory
Grossly negligent is willful wanton behavior with reckless disregard for injury
Age, race, sex, disability, national origin, religion, weight,
Administrator certification reinstated in Michigan to allow ease in moving out of state
An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody, that specifically revokes these rights. Rights of Non-Custodial Parents in the Family Educational Rights and Privacy Act of 1974 1 The Family Educational Rights and Privacy Act (FERPA) sets out requirements designed to protect the privacy of parents and students. In brief, the law requires a school district to: 1) provide a parent access to the records that are directly related to the student; 2) provide a parent an opportunity to seek correction of the record he or she believes to be inaccurate or misleading; and 3) with some exceptions, obtain the written permission of a parent before disclosing information contained in the student's education record. The definition of parent is found in the FERPA implementing regulation under 34 CFR 99.3. "Parent" means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. Section 99.4 gives an example of the rights of parents. An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody, that specifically revokes these rights. This means that, in the case of divorce or separation, a school district must provide access to both natural parents, custodial and non-custodial, unless there is a legally binding document that specifically removes that parent's FERPA rights. In this context, a legally binding document is a court order or other legal paper that prohibits access to education record, or removes the parent's rights to have knowledge about his or her child's education. Custody or other residential arrangements for a child do not, by themselves, affect the FERPA rights of the child's parents. One can best understand the FERPA position on parents' rights by separating the concept of custody from the concept of rights that FERPA gives parents. Custody, as a legal concept, establishes where a child will live, and often, the duties of the person(s) with whom the child lives. The FERPA, on the other hand, simply establishes the parents' right of access to and control of education record related to the child. Here are the answers to questions frequently asked about the rights of non-custodial parents. 1. Does the FERPA require a school to keep a parent informed of the child's progress even though the parent is divorced and living some distance from the child? No. The FERPA does not require schools to inform parents of student progress whetherthe parents are divorced or not. 2. Does the FERPA require a school to provide a parent copies of the record? Generally, a school is not required to provide parents copies of the record. However, if the distance is great enough to make it impractical for the parent to visit the school to review the record, the school must make copies of the record and send them to the parent when that parent requests access to the record. 3. May a school charge for copies of records? Yes. A school may charge a reasonable fee for copying. 4. Does the non-custodial parent have the right to be informed of and to attend teacher conferences? The FERPA does not address conferences for the purpose of discussing student performance. Thus, a school has no obligation under this law to arrange a conference to accommodate the non-custodial parent. However, if records of conferences are maintained, the non-custodial parent has the right to see those records. 5. Must the school notify the non-custodial parent of his/her FERPA rights? No. The school would be considered in compliance with the law if it notifies only the parent who has custody of the child. 6. Must the school provide the non-custodial parent the same general notices it provides the custodial parent? No. General notices, lunch menus, PTA information, announcement of teacher conferences, school pictures, and other similar information, are not "education records" as defined by the FERPA. Therefore, schools are not legally required to provide them. 7. Is the school required to honor a parent's "standing request" for access or copies? No. The FERPA does not require a school to honor a standing request, but the school may do so if it wishes. If parents wish to obtain information from their child's record on a regular basis, they should submit requests periodically. The school must respond to each request within 45 days. 8. How can a non-custodial parent get access to record? Any parent may ask the school for the opportunity to review the record, either by going to where the record are kept or by requesting copies. The school may ask the parent for some identification. 9. Can the parent with custody prevent the non-custodial parent from exercising his or her FERPA rights? No. FERPA rights are given to both parents. The school may assume that a parent has these rights unless it has evidence to the contrary. The school does not need the permission of the custodial parent to give access to the non-custodial parent. 1 The pamphlet was developed by the Family Policy Compliance Office of the U.S. Department of Education.
Very low standard. Encourages over reporting. School employees should not investigate
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