Taking issue with Adam Goldstein’s article on judicial deference to administrators

On December 12, Adam Goldstein, writing for the Huffington Post, took a stab at the judiciary’s belief that it should give deference to the educational decisions of school administrators. (Read article here) While I fully support his belief that when administrators make mistakes, these mistakes should not be overlooked by the courts, I find his take on what judicial deference means to be misleading and his belief that such deference should stop to be flawed.

While it is certainly true that one definition for deference is submission, this is not its only definition, nor is it the one the court intends through the use of this word. Deference has a secondary definition of giving respect to another person. It is this secondary definition which best seems to fit how courts have applied deference to school administrative decision.

Goldstein states in his article

it is time to end this bizarre practice that assumes judges who are competent to decide whether a man lives of dies for his crimes are incompetent to decide whether a school administrator crossed a line in a strip search.

I have never read a case where a judge implied that they were incompetent to decide an education issue. Rather, when judges use the term “deference,” they seem to be using it to state that the decision made was a sound one based on the administrator’s training and experience and, therefore, that the judge is not going to overrule it.

Goldstein also states that his reason for writing this article was

because schools, including colleges, and graduate programs, are still whining for ‘substantial deference’ for their wrongdoing, and judges are often far too often willing to give it to them.

At this point in his article, it would have served Goldstein well to point to examples of decisions where judges too willingly (and wrongfully) gave school administrators substantial deference but he disappointingly leaves this statement as a bald accusation, bereft of any support.

Instead, Goldstein goes on to cite four cases where administrators have made egregious errors in judgment, cases such as the Penn State/Sandusky debacle where administrative complacency appears to have allowed a monster to continue to victimize young boys. While the administrators in the cases mentioned certainly do not deserve deference for their decisions, neither have they been granted any. Of the four incidents mentioned by Goldstein, three have not been to trial, and the fourth decision, where a court supported a school‘s decision to discipline a cheerleader for not cheering for a basketball player who sexually assaulted her, did not even mention deference for school administrator decisions.

What Goldstein also fails to mention is that education is not the only area of the law where judges believe in respecting the professional judgment of the individuals entrusted with running our public institutions. Another well documented area of administrative deference is for prison administrators. Both of these facilities involve the housing of unique individuals possessing unique concerns. Despite Mr. Goldstein’s tirade, the fact is that these individuals’ decisions deserve our respect. Where they are flawed though, respect should not translate into the other type of deference, “a yielding of judgement.”

Gregory Branch is a teacher, former school administrator, and attorney. His practice focuses on assisting families of special education children secure their educational rights. He can be reached at gregorybranch@edrightsadvocate.com.

FERPA revision takes place

 On December 2, 2011, the United States Department of Education (USDE) issued new and revised Family Educational Rights and Privacy Act (FERPA) regulations. The changes come in response to requests by educational institutions to be able to using testing data to assess their programs without running afoul of FERPA regulations

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Along with the regulations, the USDE has issued both parent and school district guides to the new regulations.

Directory information: In the past, parents had the right to opt their children out of school directory information. By not giving directory permission, schools were not allowed to included children in yearbooks and other type publications. Under the new regs, schools can not adopt limited director information policies and implementation methods. The intent is to open up for school uses which are considered non-dangerous, such as yearbooks, but still giving parents the right to restrict publication for uses which are more potentially dangerous. Keep in mind, these regulations do not require district to lighten their restrictions; they only give them the opportunity to do so should they wish to do so.

Testing information: Essentially, the new regulations allow district and state agencies to look at longitudinal data regarding testing data. The new regulations seek to help facilitate effective research and evaluation of federal and state supported education programs through the use of such data systems.

For more information about FERPA, click here. In order to access the final regulations, click here.

Gregory Branch is an educational attorney and teacher. His solo practice focuses on educational issues. He is also the Santa Ana Special Education reporter for Examiner.com. You can see his Examiner articles here.

Thanks to Jim Gerl at the Special Education Law Blog for bringing these regs to my attention.

CA children with special needs more than twice as likely to not have quality health care options

California’s disabled children and those with special health care needs (CSHCN) are less than half as likely as students nation-wide to have health care options that meet a minimum quality of care index according to a just released, original federal report.

See my full Examiner.com article here.

New statistics on percentages of special needs students in the U.S.

 New data from the U.S. Census show that as of 2010, about 5 percent of all school children have a disability.

The American Community Survey finds that of the nation’s 53.9 million schoolchildren ages 5 to 17, about 2.8 million were reported to have a disability in 2010. (This data excludes children in institutions such as juvenile correctional facilities, group homes for juveniles, and residential schools for people with disabilities.)

Check out the rest of Nirvi Shah’s article Education Week here.

Can a failure to indentify lead to compensatory education?

In a case coming out ofCompton,California, the Obama administration has advised the Supreme Court not to take on a 9th Circuit “child-find” decision under which a child was provided compensatory education in an administrative process hearing win. The Supreme Court had requested the Solicitor General’s advice on whether to hear the case, asking it to respond to the question, “Whether an allegation that a school district has violated the “child-find” provision of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1412(a)(3)(A), may be considered in a due process hearing under the IDEA.”

Check out the rest of my Examiner.com article here.

Can Emma Sullivan be disciplined?

 If you follow my writing, you know that recently I have developed a passion for discussing court cases that involve students using social media. It is an interesting frontier of the law and one which is begging for Supreme Court guidance. Without that, districts are muddling through, faced daily with decisions about whether particular student actions can be handled at the school level and attempting to get guidance from contradictory court decisions being handed down in various federal and state courts. So loyal readers, I ask you, can Emma Sullivan be disciplined by her school? If you are not familiar with Emma, read on. I will lay out the basic facts of her situation and you can apply what you have learned to make a determination.

Facts:  Emma Sullivan is now an eighteen year-old media sensation. Barely a week ago, she was an unknownKansasteenager who was visitingTopeka,Kansasas part of the Youth in Government program. Emma is a high school senior who is awaiting word from theUniversityofArkansasto see if she is accepted in the fall. Emma is also a Democrat who found herself being addressed by Governor Brownback, a Republican legislator who Emma felt had made excessive cuts to state programs, particularly education.

During Brownback’s address, Emma tweeted

Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.

Unbeknownst to Emma, Brownback’s staff monitors all tweets, even ones sent out by an eighteen year-old seniors with only sixty Twitter followers. Upset by Emma’s tweet, Brownback staffers contacted Emma’s school, sending a screen captured picture of Emma’s post.

So, Tuesday morning Emma was summoned to the principal’s office to be, yes, you guessed, it disciplined by the administrator, Karl Karwitz. According to Emma, Mr. Karwitz “laid into” her, telling her that her behavior was “unacceptable and an embarassment.” He told her that she had created a huge controversy and how upset everyone was by what she had done. He futher expressed his upset that he was going to have to do “damage control.”

As a consequence for her behavior, Emma was told that she must write apology letters to all concerned for her behavior. an action which she originally reported that she was planning to take. Now though, with the media firestorm that has ensued, Emma appears to have changed her position on writing the letters, as they did not appear after the break, and she has expressed that she is no longer so sure she will comply.

So, can Emma be disciplined? Or, to frame the question differently, can the principal force Emma to write the letters or give further consequences for her failure to do so?

Analysis:  How should such a question by analyzed? Well, hopefully my readers are now versed in this type of analysis. In analyzing school speech issues, the relevant test is known as the Tinker standard. Tinker was a case in which students wore black arm bands to protestAmerica’s involvement in the Vietnam War. They were disciplined by the school, sued, and the case reached the Supreme Court.

There, the standard that has guided all subsequent k-12 school speech issues was formulated. Under Tinker, in order to silence or discipline for student expression, an administrator must show, based on evidence and not an “unsubstantiated fear or apprehension of disturbance,” that the student expression would lead to either (a) a substantial disruption of the school environment, or (b) an invasion of the rights of others. 

Applying this analysis to the facts currently at hand, it becomes clear that if this case goes to court (it currently has not) that the school distict and the administrator are unlikely to prevail. First, no actual disruption happened. The school did not experience any student disruption based on her comments. Second, it is highly unlikely that it will. In other cases I have discussed, I have shown that administrators need to have evidence of at least potential disruption. Here, based on the current facts, none is in evidence. Principal Karwitz, in his admonition delivered to Emma, did not point to upset to the student body, but rather to outside entities (the Governor’s office).

A further factor here is the nature of Emma’s speech. It is strictly political; it is the type of speech that has rightfully been given the Court’s strongest protection. With the facts at hand though, if it ever went to trial, counsel for district would surely argue Fraser, a case in which a high school student gave a sexual innuendo laced speech in favor of his high school friend’s candidacy for school office. Fraser argued that his speech was political, like Tinker, but the Court held that his vulgar speech during a school-sponsored event was not the “pure” political speech of Tinker.

In its Fraser opinion, the Court set up a balancing test, stating that the

freedom to advocate unpopular and controversial views in school and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially approvpriate behavior.

This distinction is important due to Emma’s choice of the tagline “#heblowsalot,” which could be argued to be sexual innuendo and vulgar. Here though, a court would likely side with Emma since, standing alone, it can be construed an non-sexual since the term has entered the common vernacular as meaning inferior quality. In Fraser, the sexual innuendos were many and flagrant.

A further issue here, although never really addressed by a court decision of which I’m aware, is that Emma is eighteen. An underlying theme, but one never stated, is that minors are not mature enough to handle full free speech rights. Here, Emma is an adult, and as such, should be afforded more latitude for speech.

So, if Emma’s case ever reached the court system, it is highly unlikely that Emma could be disciplined for her actions.

Gregory Branch is a teacher and attorney who practices in the area of educational law. He may be reached at gregorybranch@edrightsadvocate.com.

Free speech allowed if appropriate

We are seeing our First Amendment right to free speech redefined by the practices being carried out by our government. In Kansas, high school student Emma Sullivan, 18 years of age, has been ordered to write letters of apology by her school after sending out a tweet to her then-sixty in number followers that read “Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.” The governor has someone on his staff monitoring Twitter for references to him, and this staffer informed the school about the negative tweet, whereupon the school took action.

Read the rest of this interesting article here.

4th Circuit case illustrates FAPE considerations

 A recent 4th Circuit case, Lexington County School District One v. Janet B. Frazier, shows the factors that a court looks at in determining whether a district has offered FAPE, a free and appropriate public education.  In the case, the court held that for one year, FAPE had not been offered based on the contents of the proposed IEP, but that in the following two school years, the district had offered FAPE when its proposed IEP contained new elements designed to meet the student’s unique needs.

Case Facts: D.K. is an Asperger’s Disorder identified child who suffered a number of difficult life changes during the 2006 school year. During this time, his father passed away, his mother, Janet Frazier,  remarried, and the family moved to anew city. Part of Asperger’s is difficulty in dealing with change.

Prior to the move, D.K. was already exhibiting resistance to attending school. In fact at one point court records show, he completely refused to go despite the best efforts of his mother. Because of this, the then home district made counseling services available to D.K., although the services showed little effect.

In the spring of 2007, the family moved toLexington,South Carolina. The district, Lexington County School District One, there proposed an IEP for D.K. that did not offer counseling nor include an attendance goal. Instead, the district focused on the academic setting with the hope that this would positively impact D.K.’s attendance. It did not. Once again, despite Frazier’s efforts and the academic program proposed by the district, D.K. continued to miss a large number of days due to refusal to attend.

After numerous IEPs where Frazier requested counseling services but was denied, she unilaterally moved D.K. to a private, residential school in Michigan, Montcalm School for Boys. In that setting, D.K. made progress. He did refuse to attend classes on three occasions, but afterward, the school’s counseling and intervention was successful in getting him to return to class. Part of the curriculum offered through Montcalm is on-going counseling, both individual and group.   During the year at school, D.K. progressed two years in reading and math.

Prior to the 2008 school year,LexingtonCountyagain had an IEP with Frazier. This time around though, the IEP proposal contained a provision for a psychologist to perform an evaluation of D.K. to determine if counseling was necessary. In addition, the IEP offered preferred activity time to help D.K. decompress and “virtual” classes, classes conducted through the internet. Despite this offering, Frazier elected to move her son to a new private facility located closer to their home.

Court’s ruling and logic: The court here held that for the 2007 school year, D.K. had not been offered FAPE, but that after that, due to the changes made to the proposed IEP, that he had. The effect of that ruling is thatLexingtonCounty must reimburse Frazier the cost of D.K.’s Montcalm tuition for 2007, but not tuition for his subsequent placement at the new private facility.

When a parent unilaterally, meaning without the district’s permission, places their child in a private educational facility, the parent can file with the court to require the district to pay. It is a gamble though, because if the parent is wrong, then she is on the hook for the cost. Parents may be reimbursed only if the program and institution where they place the child will provide an “educational benefit” and the student would not have received benefit under the proposed district IEP.

Here, the court determined that during the 2007 school year at Montcalm, the student did in fact receive benefit, as evidence by his academic progress and his regular attendance. While academic growth alone is not sufficient for such a determination to be made, the court can give weight to such a finding, which here it did. Under the standard above, D.K. receiving educational benefit is not sufficient though. Frazier was required to show thatLexingtonCounty’s proposed IEP would not benefit her son.

In support of its case,LexingtonCountyargued that the reason why D.K. would not attend school was unrelated to his disability but rather anxiety stemming from the many changes that had occurred in his life, from his father’s death to his relocation. The court rejected these arguments though, looking to the fact that these events had happened more than a year prior to the on-going attendance issues. The court further noted that there was…

“ample evidence in the record to suggest that the anxiety D.T. experienced in school, while it may have been exacerbated by life events , is a common symptom of Asperger’s and was a major cause of his unresponsiveness.”

Having ruled in Frazier’s favor for the 2007 school year, the court then turned its attention to Frazier’s claim that the district should also reimburse her for the subsequent school years, a claim the court rejected.

The court applied the same test to determine if the district should be responsible, but under this analysis, due to changes in the proposed IEP rejected Frazier’s claim. The court noted that in 2008, D.K. was not in the same position as he had been in 2007. His attendance had been normalized, he had made significant educational progress, and was showing reduced signs of anxiety.

Probably more importantly though, the district was no longer offering a proposed IEP that did not attempt to deal with the emotional issues that D.K. had evidenced. The district proposal now included stress relieving time built into D.K.’s schedule, virtual classes, and the opportunity for counseling should a need exist. Over Frazier’s arguments to the contrary, the court held that the IEP did not need to include counseling, only an opportunity to determine if it was necessary. With these elements in place, the district’s offer in 2008 and 2009 was an offer of FAPE, in that it was reasonably calculated to offer educational benefit.

This case does an excellent job of illustrating how a court will examine FAPE where a parent decides to place their child in a private setting without a district’s consent. In such cases, parents must meet a high threshold to obtain reimbursement. They must prove that the placement they chose provided an educational benefit to the child, usually the easier part, and second, that the district’s offer would not provide their child benefit.

Gregory Branch is an educator and educational attorney who practices inSouthern California. He can be reached at gregorybranch@edrightsadvocate.com.