U.S. Department of Education’s Office for Civil Rights Issues New Rule Requiring Dismissal of Allegations Filed as Part of Bulk or Mass Complaints
On March 5, 2018, the U.S. Department of Education issued a new version of the Office for Civil Rights’ Case Processing Manual. This is the first revision of the manual under the Trump administration, and first revision since 2015. The new manual makes several changes, primarily aimed at reducing a backlog of complaints and narrowing the scope of investigations. The new manual is available at https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf
The new manual aims to ensure cases are handled in a timely manner, improving efficiency, effectiveness and clarity. One area in which OCR hopes to achieve this goal is in the manual’s instruction that OCR “will” dismiss bulk or mass complaints—complaints that are “a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients or a complaint is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources.”
This new rule targets “mass filers,” as OCR has noted that just three people accounted for 23 percent of complaints filed in 2017, and 41 percent of complaints filed in 2016. Many California school districts were targets of these mass filed complaints, including complaints filed regarding school website accessibility standards. School districts defending website accessibility complaints may find the new rule quite helpful, as it has already resulted in the dismissal of over 500 mass-filed complaints. Districts facing a mass-filed complaint may be able to obtain dismissal based on this new rule.
This is not the only change in the new manual. The new rules also seek to narrow the scope of investigations, removing references to “systemic” investigations—the prior practice of requesting years of data to determine whether problems extended beyond a specific complaint. Instead, investigators are instructed to focus only on the specific allegations contained in the filed complaint.
For school agencies, this means that investigations moving forward are likely to be less costly in terms of time, work-hours, and expense. Under the new rule OCR will no longer make broad, wide-ranging requests of multiple years of student data—instead, OCR is likely to focus their requests on the student(s) and the time period directly involved in the complaint. It may also result in resolutions more directly tailored to the individual allegations in the complaint, instead of system-wide changes. However, OCR has stated that it will open investigations into broad, long reaching issues where warranted, citing the Title IX investigation into “systemic issues” around Michigan State University’s handling of reports of sexual violence against Larry Nassar.
By Michael Tucker, Attorney at Law
Since the tragic shooting at Marjory Stoneman Douglas High School in Parkland, Florida, schools nationwide have seen a 300% increase in violent threats. (Educator’s School Safety Network). Local Educational Agencies (LEA) are now faced with very complicated decisions regarding students’ due process rights, public and campus safety, and a public who wants to know that students are being kept safe. Below are some options for LEAs to consider if facing a situation where a student has made a violent threat regarding a school campus.
- Contact Law Enforcement
In the event a violent threat is received, the LEA should immediately contact law enforcement. Not only is a violent threat likely a crime, but law enforcement has resources at their disposal to conduct an appropriate investigation. Additionally, law enforcement will likely have recommendations to help ensure the safety of everyone on campus.
- Follow Student Discipline Procedures
Under the California Education Code, a student can be expelled for causing or threatening to cause physical injury to another person or making terroristic threats against school officials and/or school property. Any expulsion recommendation must come from the superintendent or principal. School administrators should review their student discipline policies in the event a threat is received.
- Know Your Social Media Policy
Prior to searching social media for threats against your school, you should review whether your LEA has a policy regarding student social media searches. Specifically, prior to performing any such search, your LEA is required to notify parents of the program and provide an opportunity for public comment at your LEA’s governing board meeting. (Cal. Educ. Code § 49073.6.) If your LEA already has a policy in place, you may only use information gathered from a student’s social media account that “pertains directly” to school or pupil safety. Additionally, you are required to provide the student with access to any information gathered and give that student a chance to correct or delete the information. Moreover, you will be required to notify the student’s parent or guardian that the student’s information has been collected.
- Consider Special Education Implications
Even if a student’s behavior amounts to a violent threat, school officials must consider whether the student’s behavior implicates any of the laws governing students with disabilities. First, determine whether the student has a Section 504 plan or an Individualized Education Program (IEP). If so, school administration must conduct a manifestation determination review within the legal timelines in order to determine if the threat was related to the student’s disability. Secondly, if the student does not currently have a Section 504 plan or an IEP, the LEA should consider whether the student should be assessed as part of the LEA’s “child find” responsibilities. Considering the threat in context of the student’s other behavior may be an indication of a suspected disability and a need for special education and related services. Finally, even if a student is not currently eligible for special education, in certain circumstances, LEAs are still required to ensure a student receives disciplinary protections under IDEA if the LEA had a “basis of knowledge” that the student might be in need of special education and related services.
- Protect Student Privacy Rights
Student privacy is protected by both federal and state law. (See 20 U.S.C. § 1232(g) and Cal. Educ. Code § 49076 et. seq.) These regulations often prevent an LEA from revealing “personally identifiable information” regarding a student. These protections also generally apply to students who may face discipline or who are being disciplined for making a violent threat. Therefore, while communicating the nature of a threat to the public, care should be taken to protect the student’s right to privacy. An LEA can generally inform the public of a threat so long as it protects the identity of the student accused of making the threat.
Pre-hearing Settlement Offers Can Limit Liability for a Successful Party’s Attorney’s Fees, but Only if an Offer Includes Reasonably Calculated Attorney’s Fees.
Author: Eric Stevens
Pre-hearing settlement offers are one tool a local educational agency (“LEA”) can use to limit its potential liability for attorney’s fees should a parent, legal guardian, or student partially prevail in a due process hearing. Parents who obtain a favorable ruling after a due process hearing are entitled to reasonable attorney’s fees. If partially successful, they are still entitled to an award of some attorney’s fees. Most due process filings are settled as only a fraction progress through a full hearing to a decision, but of those that are fully adjudicated by the Office of Administrative Hearings (“OAH”), students are fully or partially successful about 63% of the time. However, a pre-hearing settlement offer can limit liability for attorney’s fees incurred after the offer is made if the offer is “more favorable” than the relief ultimately obtained by a parent.
The recent decision in S.H. v. Mount Diablo Unified School District, (N.D. Cal. 2018) 118 LRP 3307, demonstrates an exception to this “more favorable” settlement rule. The U.S. District Court for the Northern District of California found that an LEA’s pre-hearing settlement offer did not protect it from post-offer attorney’s fees in part because the offer did not include a reasonable amount of attorney’s fees. Therefore, parent “was substantially justified in rejecting the settlement offer” and the offer could not serve to cap parent’s award of attorney’s fees.
The LEA’s pre-hearing settlement offer included $10,000 for attorney’s fees. The Court concluded that this was an unreasonable offer for three reasons: (1) it was less than half the attorney’s fees parent had allegedly incurred at the time the offer was made ($22,000); (2) the LEA made no effort to learn the amount of fees incurred as of when the offer was made; and (3) there was no evidence to suggest that the LEA based the offer on its estimate of what parent would recover if parent was successful. As a result, the Court awarded $71,020 as reasonable attorney’s fees.
In the 2016/2017 school year, 4,467 requests for due process hearings were filed with OAH, but only 134 resulted in a final decision—less than 3% of filings. This is not surprising considering the uncertain outcomes in contested hearings and strong incentives in the IDEA to reach settlement. The S.H. v. Mount Diablo case demonstrates these incentives in action. By creating an opportunity to cap any subsequent award of attorney’s fees, the IDEA encourages LEAs to make settlement offers early in due process proceedings. But it also encourages LEAs to carefully calculate these offers or, as in S.H. v. Mount Diablo, a rejected offer may be of no help at all.
In a recent special education due process hearing decision, the Office of Administrative Hearings held that a school district denied a student a free appropriate public education (“FAPE”) by failing to address allegations of bullying in an IEP meeting. Colton Unified School District (OAH No. 2017060750).
In this case, the parents complained multiple times to the school that their kindergartner with autism and a speech and language impairment was being bullied. The parents had reportedly observed other children taunting their son and excluding him from activities and had witnessed him coming home with unexplained injuries. Parents raised these concerns at an IEP meeting and suggested that the bullying may be the result of the student’s lack of social skills for which a behavioral aide might be warranted. In response, the school district informed the parents that there was a district bullying complaint form they could fill out. No further discussion occurred at the IEP meeting regarding the alleged bullying.
The hearing officer determined that the district denied the student FAPE by failing to address the reported bullying. The hearing officer explained that formal procedures for investigating bullying are separate from the IEP team’s obligations to address the impact of bullying on FAPE. Moreover, it did not matter that the reports of bullying were disbelieved or that the team felt the claims were better handled by the school’s discipline process. Instead, the IEP team should have at least discussed the parents’ concerns, documented the conversation, and determined the impact, if any, on a student’s receipt of FAPE.
IEP teams need to know that bullying of a student with a disability on any basis can result in a denial of FAPE. When investigating whether a student with disabilities who was bullied was denied FAPE, the Office of Civil Rights considers several factors, including, but not limited to:
1. Did the school know or should it have known that the effects of the bullying may have affected the student’s receipt of IDEA or Section 504 services? For example, did the school know, or should it have known, about adverse changes in the student’s academic performance or behavior indicating that the student may not be receiving FAPE?
2. Did the school meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, make changes, as necessary, to his or her IEP or Section 504 plan?
Ensuring that IEP and Section 504 teams adequately address bullying or harassment of a student with a disability will minimize potential liability under a variety of federal statutes, including the IDEA, Section 504, the ADA, and Section 1983, as well as under state law.
As always, with the turn of the calendar year comes the arrival of new laws taking effect in California. Legal guidance should be sought, and the specific statute consulted, before action is taken regarding any of these new bills. Several of these new laws will affect schools, including:
Employee Rights / Application Processes
AB 1008 – “Ban the Box” / No inquiry into criminal records on application forms
AB 1008 prohibits employers from inquiring about or considering a job applicant’s criminal record prior to a conditional offer of employment.
Under AB 1008, it is an unlawful employment practice under FEHA for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.
An employer also cannot inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer.
AB 168 – Use of prior salary information
AB 168 prohibits employers from asking ask about an individual’s salary history during the job application process.
AB 168 also requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant.
However, if an applicant “voluntarily and without prompting disclos[es] salary history information,” an employer may still “consider or rely on that voluntarily disclosed salary history information in determining the salary for that applicant.”
SB 250 – Provision of school lunches to students with unpaid school meal fees
SB 250 ensures that school officials do not “shame,” delay or deny food to hungry students as punishment for unpaid school meal fees.
SB 250 also requires schools to direct all efforts to collect unpaid school meal fees towards parents—not students—and forbids the use of a debt collector to recover unpaid school meal fees.
AB 10 – Free Feminine Hygiene Products
AB 10 requires public schools that serve students in grades 6 through 12 to provide free pads and tampons in half of its bathrooms if at least 40 percent of the school’s students fall below the poverty line.
Firearms on School Grounds
AB 424 – No Concealed Carry on School Grounds
AB 424 removed language in an earlier statute that let school superintendents provide written authorization for employees with concealed weapons permits to bring guns onto school campuses.
AB 1360 – Changes to Charter Petition Requirements
AB 1360 permits charter schools to include siblings of current charter school students and children of the charter school’s teachers, staff, and founders as categories given “enrollment preferences” in a charter school’s lottery process.
AB 1360 also requires charter petitions to specify what specific acts can result in a suspension or expulsion, and set forth due process procedures for suspensions/expulsions.
AB 1360 also allows charter schools to encourage parental involvement—whether through volunteer hours or donations—but prohibits charter schools from requiring parental involvement as a condition to acceptance or continuing enrollment in the school.
Author: Eric Stevens
In the case of M.C. v. Antelope Valley Union High Sch. Dist. (2017) 858 F.3d 1189, the Ninth Circuit Court of Appeals considered parents’ complaint that their student was denied a FAPE when a school district unilaterally changed the provision of vision services in an IEP from 240 minutes per month to 240 minutes per week. The school district claimed that the district and parents had verbally agreed to 240 minutes per week at the IEP meeting, but the signed IEP agreement contained a typo.
While providing more minutes of vision services did not substantively harm student, the Ninth Circuit Court of Appeals agreed with parents, ruling that the school district’s unilateral revision to student’s IEP was a procedural violation of the IDEA that denied student a FAPE.
A procedural violation of the IDEA can deny a student a FAPE when it seriously infringes on a parent or legal guardian’s opportunity to participate in the IEP formation process. Here, the Ninth Circuit found that parents were denied this opportunity and student was denied a FAPE.
An IEP is like any other written contract and cannot be unilaterally changed. If any party believes that the IEP needs to be changed, it must notify the other party and seek consent to an amendment. It does not matter if a local educational agency (LEA) believes that it is merely correcting a typo to reflect what was agreed upon at a meeting or to provide more services to a student. As a practical matter, the parents may disagree that the issue is a typo and seeking consent to the “correction” can help protect the LEA from a later due process complaint. As a legal matter, any unilateral change to an IEP is a procedural violation of the IDEA that may be the basis for a denial of FAPE claim as it was in this case.
The Ninth Circuit also observed that an IEP provides notice to both sides of what services will be provided to a student during the term of the IEP. The IDEA is just as concerned with parental participation in the formation of an IEP as it is in the enforcement of an IEP. When an LEA provides services that are different from what is in a signed IEP, it undermines parents’ ability to enforce the IEP. As the Ninth Circuit found in this case, it can lead to the necessity for parents to retain an attorney to clarify what services (or the amount of services) that are being provided.
Author: Michael Tucker, Attorney at Law
On July 19, 2017, a California Administrative Law Judge (ALJ) found for the Rialto Unified School District (District) in that the program offered by the District provided FAPE despite failing to identify a specify dyslexia methodology or program. (Rialto Unified School District, 2017, 70 IDELR 267.) The ALJ found that the student’s dyslexia diagnosis and needs were being satisfied through services identified to address other identified goals.
Student was a 17-year old diagnosed with dyslexia, SLD, ADHD and a mood disorder. Based on this information, the District placed Student in a special day class with two periods spent in general education classes. No goal was specifically designed to address Student’s dyslexia. Instead, the District implemented goals for reading comprehension and written expression, which according to the District, were “designed to work on Student’s deficits caused by the dyslexia.”
Despite this, the Student’s parents filed for due process based on the District’s failure to include a specific program or methodology specifically addressing Student’s dyslexia.
The ALJ ruled consistent with the 9th Circuit Court of Appeals which held that “it is not necessary for a school district to specify a methodology for each student with an IEP if specificity is not necessary to enable the student to receive an appropriate education.”
The ALJ found that the Student made sufficient academic progress on the goals implemented by the District. Moreover, the ALJ found that as long as the student’s individualized needs are met, the specific program or methodology offered is secondary to the Student’s progress.
Therefore, Local Educational Agencies (LEAs) should remain focused on programs, services, and methodologies that offer the greatest opportunity for student progress based on the student’s needs. LEAs should offer evidence of a student’s progress to a parent if the parent is concerned about the LEA’s specific program. Showing such progress may help the LEA avoid a due process filing in the event of a dispute regarding a specific program.
New Guidance Issued from U.S. Department of Education About FAPE Standard Set Forth in Endrew F. Decision
On December 7, 2017, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) released a Question and Answer (Q&A) document addressing the U.S. Supreme Court decision in Endrew F. v. Douglas County School District Re-1 (2017), which clarified the scope of the free appropriate public education (FAPE) requirements in the Individuals with Disabilities Education Act (IDEA).
In Endrew F., the U.S. Supreme Court held that an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives. However, the court did not define the phrase “progress appropriate in light of the child’s circumstances.” This new Q&A document provides a discussion of the FAPE requirements and includes questions addressing implementation considerations including, “Is there anything IEP Teams should do differently as a result of the Endrew F. decision?”
The answer to that question appears to be that IEP teams must implement policies, procedures, and practices relating to (1) identifying present levels of academic achievement and functional performance; 2) the setting of measurable annual goals, including academic and functional goals; and 3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F. standard is met for each individual child with a disability.
Governor Brown Signs AB 1360 into Law, Authorizing Additional Categories of Enrollment Preferences and Requiring Increased Detail for Suspension/Expulsion Procedures Contained in Charter Petitions
On October 13, 2017, the Governor Brown signed Assembly Bill (AB) 1360 into law to take effect January 1, 2018. AB 1360 makes several small changes to the 15 “reasonably comprehensive descriptions” a charter petition is required to contain under the Charter Schools Act (Education Code § 47605(b)(5)). Notably, AB 1360 received support from both the California Charter Schools Association and the California Teachers Association.
First, AB 1360 permits charter schools to include two additional “enrollment preferences” categories when setting forth a charter school’s lottery process to be used when applications exceed a school’s capacity. Charter schools are now specifically authorized to use two previously popular (but not codified into statute) preference categories:
- Children of the charter school’s teachers, staff, and founders; and
- Siblings of current charter school students.
Charter schools may still specify additional preferences, such as residents of the authorizing school district, but all preferences must be consistent with federal and state law, and may not result in limiting enrollment access for pupils with disabilities or other disadvantaged students.
Second, AB 1360 now requires charter petitions to specify what acts can result in a suspension or expulsion and set forth due process procedures for suspensions/expulsions. Depending on the length of the suspension, or if expulsion is sought, a student must be provided “oral or written notice of the charges against the pupil,” “an explanation of the evidence that supports the charges and an opportunity for the pupil to present his or her side of the story,” and/or “a hearing adjudicated by a neutral officer within a reasonable number of days at which the pupil has a fair opportunity to present testimony, evidence, and witnesses and confront and cross-examine adverse witnesses, and at which the pupil has the right to bring legal counsel or an advocate.”
Moreover, for any non-voluntary removal, the student’s parent or guardian must be given written notice of intent to remove the pupil no less than 5 school days in advance, and the parent/guardian must be given the right to challenge the non-voluntary removal under the same procedures as an expulsion.
Additionally, AB 1360 allows charter schools to encourage parental involvement—whether through volunteer hours or donations—but prohibits charter schools from requiring parental involvement as a condition to acceptance or continuing enrollment in the school.
Author: Michael Tucker, Attorney at Law
On October 31, 2017, the U.S. District Court of the Western District of Pennsylvania upheld a decision finding that a local education agency (LEA) did not violate Child Find requirements when the LEA acted promptly by assessing and providing services to the student.
As a preschool student, Student received some special education services even though the preschool determined that Student’s delays did not impede Student’s learning. Upon entering kindergarten with the District, the District evaluated Student to determine if continued services were necessary. The District determined that while not disabled, Student suffered from “behavioral and focus issues.” The District’s IEP team concluded that the kindergarten classroom’s “repetitive and consistent methodology” would address Student’s issues.
However, after Student began attending classes, his classroom teacher became concerned regarding his “extreme response to frustration, expressed fear of the classroom toilet…[his] difficulty staying on task and expressing himself, and [he] would ‘meltdown’ by crying loudly.” Within a few months, District had completed several assessments and convened an IEP meeting. As the assessments were being completed, Student received ongoing counseling from the school psychologist and behavioral specialist. As a result of the IEP meeting, Student received monthly therapy sessions, counseling, weekly behavioral interventions and other services. Student progressed with these interventions and the behavioral interventions were concluded prior to Student’s admission into first grade.
Student’s progress seemingly continued until midway through his first grade year when many of his behavioral issues returned. Parents filed a due process complaint alleging that Student was denied a free appropriate public education (FAPE) when the District failed to meet its Child Find obligations. Parents alleged that the District failed to identify the Student as disabled and waited too long to implement appropriate accommodations.
Under the IDEA, Child Find requires that students in “need of special education and related services are identified, located and evaluated.” 20 U.S.C. § 1412(a)(3). Thus, LEAs maintain a continuing obligation…to identify and evaluate all students who are reasonably suspected of having a disability.” P.P. ex rel. Michael P. v. West Chester Area School Dist., (2009) 585 F.3d 727, 738.
However, LEAs are not required to identify a student as disabled at the “earliest possible moment,” especially in very young children. Board of Educ. Of Fayette Cnty., Ky. v. L.M., (2007) 478 F.3d 307, 313 as cited by D.K. v. Abington School Dist., (2012) 696 F.3d 233, 251.
Here, the court found no Child Find violation because the District acted within weeks of Student’s enrollment and Student’s young age.
This case illustrates the difficulty in satisfying an LEA’s Child Find obligations with very young students. The court noted that the less structured environment of early grades combined with a student’s relative immaturity may make it difficult for LEAs to differentiate between traditional students and those with disabilities. However, once a suspected disability and potential need for special education arises, an LEA is required to act promptly in order to satisfy its requirements under Child Find. The District in this case did just that, acting within weeks of Student’s initial enrollment in kindergarten. The court concluded that this prompt action satisfied the District’s Child Find obligations.