Bob R/CA - Welcome everyone to tonight's session. Our topic tonight is School Legal Issues
Bob R/CA - Our guest is Professor Sarah E Redfield of the Education Law Institute of the Franklin Pierce Law Center
Bob R/CA - Welcome Sarah :o)
Bob R/CA - Sarah, you are our guest of honor this evening, welcome
Sarah - Thank you. It's a pleasure to be here.
Sarah - I've been interested in ed law issues since the Law Center where I work started an ed law conference several years ago. This year will be our 8th annual ed law institute. I've become only too aware of how many legal issues educators face...for better or worse the law is ever present in schools.
Sarah - I've been teaching an online course so have used online chat, but not usually with so many folks... so I'll follow your lead...
Bob R/CA - Some info from the ELI webpage at http://www.edlaw.fplc.edu/ Professor Redfield speaks locally and nationally on current education law topics. If you'd like to meet her this year she will be presenting at the National Association of Secondary School Principals in San Antonio, TX, February 5, 2000; at the National Association of Elementary School Principals in New Orleans, LA, March 18-21, 2000; New Hampshire Principals Association, March 29, 2000 in Manchester, NH; at the Canadian Association for Education Law in Prince Edward Island, Canada, April 28-29, 2000; at the CALI conference in Chicago, IL, (proposed); June 22-24, 2000; and of course at the Education Law Institute at Franklin Pierce Law Center in Concord, NH, July 24-28, 2000.
Sarah - Thanks Bob, Most of these events have gone by, but I'll be doing the same general places next year... and this summer's ed law institute at my own institution is still upcoming and is a great chance to stay current and meet some fantastic educators and lawyersBob R/CA - Sarah, would you care to tell us a bit about yourself in your own words, and your experience in this topic?
Sarah - I started out running and ed law conference; then we started offering summer courses, and now we have two ed law degree programs that are not law degrees, i.e. they are degrees for those who want to know the law, but don't need to go to the whole drill of law school. More and more educators need this information. I'm not really an expert in anything, know a little about a lot of topics, and, like all good lawyers, know how to research for answers. I'm always struck by how earnest educators are and how much they act in good faith, yet still they run into legal concerns.
Sarah - One of the things I've enjoyed most about my work is bringing law students, lawyers, and educators together in one class. It always seems that the educators feel intimidated at first. But their knowledge is as important as the lawyers' and its crucial that we all learn to talk with each other.Bob R/CA - What are common concerns in your experience that educators get caught in? (e.g. what are the most common legal issues that ensnare educators)
Sarah - I'd say that educators are often ensnared by lack of knowledge of the legal system generally and likewise of how the system i s likely to deal in a given situation, what we law professors would call an understanding of legal analysis. A common example is a student claim of Free Speech or a parent's claim to control the curriculum.
Sarah - Well, I would add that another common area of concern is discipline and the need to have due process before discipline for both special ed and regular ed students.
Bob R/CA - And what recommendations would you have to educate the teachers, so to speak, beforehand about these? Is there a manual? ;o)
Sarah - Unfortunately, there isn't a manual. But perhaps we should all be writing one!
Sarah - I'd really recommend that everyone take at least one law course to understand the parameters of liability and the risks that can be avoided. Short of that I can only stress REASONABLENESS, since in most cases this ends up being the standard courts apply (well, most cases that aren't of constitutional proportions.)
Bob R/CA - Sarah, if there is no nutshell guide, maybe you have some favorite resources on-line to recommend?
Bob R/CA - (e.g. an edlaw listserv?)
Sarah - Hmm, you are asking me questions that I'm not prepared for. I don't know about a good single online source. We have some information and a small library at our website - http://www.edlaw.fplc.edu/.
Bob R/CA - Sarah, can teachers get continuing ed for law courses?
Sarah - Re: continuing ed -- absolutely, for example if you take one of our online courses, you can apply the credits to one of our degrees, transfer to another institution or use for clock or continuing ed credits or hours.
Bob R/CA - There is also an ed advocacy chatboard on this website, where support can be had for some issues - http://www.teachers.net/mentors/advocacy/Mary/PA - What are the biggest misconceptions about the contents of IDEA?
Sarah - I lost track of the IDEA question. It seems that a lot of folks think that the IDEA guarantees the best possible educational opportunities for a student with disabilities. Under the federal law, the standard is less than this, though in a few states this is the standard by state law.
Bob R/CA - and what does IDEA involve? (sorry to be so dense, but it's a good background question :o)
Sarah - IDEA is the Individuals with Disabilities Education Act, the federal law which deals with education of students with disabilities. It was originally titled Education Handicapped Act, but is now known as IDEA.
Bob R/CA - can you sum up the provisions of the IDEA?
Sarah - IDEA requires states (who want to get federal money and they all do) to commit to providing a free appropriate public education (FAPE) to students with disabilities. This means providing those students with and Individual Education Plan and committing to implementing it so that the student can make educational progress.
*max* - http://www.lrp.com/ed/freelib.htm (addy for full IDEA text)Jules/GA - I have a child in K who is functioning on a toddler level (still wears diapers etc.) The school has talked to the parents about testing, special services etc., but the parent refuses. Is there anything that can be legally done to help this child?
Sarah - Yes, Jules, in cases where a parent refuses to proceed under IDEA the school can (and in some states must) proceed on its own. This may involve the school proceeding to a due process hearing...Addie /MO - Several states, including MO have passed laws mandating retention in the current grade if the student is reading at least one year below grade level. What are the legal ramifications for schools under this law say if a student is not retained who should be or is retained who shouldn't be?
Sarah - Addie, this is a complex question. There is always a potential problem where a school does not follow state law, but there is a question of who is the enforcer. There may be de minimis failure to comply, i.e. school didn't comply but no real harm done, but there may also be serious harm from this that may eventually lead to liability. The question also raises the issue of what obligations the school has to teach and provide education so that a student won't be maintained... the courts struggled with this briefly in a case called Deborah P. several years ago and are starting to pick up on it again now.... so it is somewhat unsettled.Worth/SC - What do you do when a student is the subject of a custody dispute and the guardian ad litem or child's attorney wants to interview you?
Sarah - Worth, this too raises a common but serious problem. If your school has a policy for these instances, obviously you follow that. In the absence of a policy, I'd ask for release from both parents or for a court order otherwise you will be at risk of violating privacy laws.Mary/PA - I'm in PA, and we have been told that an IEPed student's needs are not to be met in such a way that takes away from the regular ed. students in the classroom. In other words, if far too much of the teacher's time is spent on the IEPed student, then the placement is not correct. But this is not how it seems to be in most places. What rights do the regular ed. students have when it comes to having a safe and appropriate learning environment?
Sarah - You are all asking the tough questions! Mary, there is a limited point where schools are allowed to consider the needs of other children in determining whether a special ed student placement is appropriate. For the most part, regular ed students do not have rights in this issue. You can see the problem, I think, when you think that the whole process is geared to the rights of the student with special needs and his or her parents. A regular ed parent is not involved in the process at all or as lawyers say, would have no standing in the process. Even when a special ed student causes problems, the regular ed parents are not entitled to information because of privacy laws.Addie /MO - Re: Mandatory retention....Then probably a school's best avenue is to follow the law to the best of ability and then document, document, document, to show evidence that supports the decision that was made?
Sarah - Addie, you've got it. Again, if a school can show it acted reasonably under the circumstances, even if not technically legally, the school will prevail (eventually) in this kind of a dispute.Bob R/CA - You can corner Sarah in person at her institutes conference this summer: Seventh Annual Education Law Institute Summer 2000 - Franklin Pierce Law Center, Concord, NH July 24-28, 2000. Dates: July 24 - Preconference - Gifted Ed and Character Ed: July 24 - CLE; July 25 - Day 1 - Special Education; July 26 - Day 2 - Schools as Bosses, Schools as Parents; July 27 - Day 3 - Critical Issues; July 28 - Postconference - Adequacy and reform. Important URLS: Admissions information - http://www.edlaw.fplc.edu/Registration/admissions.html . Registration form: http://www.edlaw.fplc.edu/Registration/eliform.html
Jules/GA - Are "zero-tolerance" policies at schools legal? For example...we have a zero tolerance on verbal threats ("I'm going to bring a gun to school, etc."). The policy states that the child will be expelled from school. If it was taken to court, would it stand?
Sarah - Jules, may be yes, may be no. (can you tell I'm a lawyer?) The issue will be ON THE FACTS OF THIS CASE was their due process, both procedural and substantive. That is did the student have notice and opportunity to be heard (procedural due process) and was the end result fair in constitutional terms (substantive due process.) Having the policy puts the school in better place than no policy, but the courts haven't rung in enough on this yet for there to be a clear answer.freeal - Here is an interesting and true event: A special ed student was caught with a weapon, but could not be suspended because there was a doubt as to whether or not he knew what he was doing. Interesting?
Bob R/CA - one of your students al?
Sarah - Freeal, yes, interesting and only too true. It is a variation on the theme of two students one special ed and one not who both have weapons and one is suspended and one not.
Bob R/CA - Sarah, is there a tendency to reduce the age of culpability in the schools these days? I understand the Florida youth who shot the teacher will not be charged.
freeal - Yes, they were my students. They also have drugs on them. The school district is afraid to act.
Sarah - Sorry, I seem to have been bumped out. The point freeal is making here is that a special ed student will need to be looked at to see if the behavior is a manifestation of his disability; if so his team has to meet and decide how to deal with the issue, not the usual disciplinary policy.
Sarah - Bob. I think we are going to see more kids covered and more security (search and seizure type things) upheld.*max* - I believe I receive a newsletter from "EDLAW", is this the same firm you are with Sarah, it is very informative
Sarah - Max, the Edlaw newsletter isn't ours, but do visit our website...Bob R/CA - About The Education Law Institute (ELI): The Education Law Institute (ELI) addresses cutting edge topics that will be vital to educators, community leaders, and advocates in the new millennium. The website (http://www.edlaw.fplc.edu/) should provide you with a valuable resource to download class materials and gain extra information about their programs.
*max* - freeal, our district arrest the sp ed students if they have drugs, cigarettes, etc./ they take them right to jail!!!!
freeal - What sites would be most valuable for a new teacher to visit?
Sarah - Freeal and Max, I should add that one way around the requirements of IEPS and the IDEA re: serious behavior (weapons and drugs) is to get a court order.Bob R/CA - Sarah, do you think the trend on today's Court is to chip away at 4th amendment protections?
Bob R/CA - (and all Constitutional protections for students, e.g. free speech?)
Sarah - Bob, yes, I do, the Supreme Court has already said that search and seizure in schools does not require probably cause, it has also upheld random urinalysis testing for athletes (on the theory of drug prevention) and the lower courts are broadening this even further.
*max* - I see that students have more rights than ever before , Bob
Bob R/CA - how do you mean max?
*max* - teachers appear to have to be extremely careful not to infringe upon student rights, and students know their rights---suites are very common
Bob R/CA - some selected Edlaw Cases are available at http://www.edlaw.fplc.edu/
Sarah - Bob and Max, I think free speech is less on a decreasing road than search and seizure under the 4th amendment, but I think we may see changes here too in the era of internet threats and violence. I don't think students really have as many rights as perhaps you think they do, if put to the test, but they do know how to say "that's unconstitutional" and so do their parents! :-)
Bob R/CA - so the threat of a law suit can be more than enough incentive ;o)Bob R/CA - Sarah, in light of recent events at schools across the country, how do you feel about these changes in student rights? Warranted, or too far?
Sarah - Bob, my personal feeling is that the responses have gone too far, though I have nothing but sympathy for the school administrators who have to make the decisions. I have two kids of my own so I feel the issue from personal side as well as a legal one.freeal - What are the biggest liability areas for teachers while on yard duty?
Sarah - Freeal, yard duty is a question of adequate (that is non-negligent) supervision, i.e. what a reasonably prudent person would have done in the circumstances.Bob R/CA - Sarah, does the ELI defend teachers and students, or neither?
Sarah - Bob, we don't have clients at the ELI, we're a neutral info forum that seeks to teach the basics of legal issues of current concern to help AVOID law suits. We also offer courses in alternative dispute resolution, e.g. negotiation and mediation.*max* - administrators may have more "rights", but teachers are becoming very unable to do much to stop problems they see starting. I think teachers have to know how to react to the threats Bob, you say the wrong thing and you are "done"
Sarah - Max, what do you mean by adm. rights and react?
*max* - there is a much larger gap between what teachers can do and what administrators can do; everyone is "afraid" of being sued; I no longer feel the comfort of a workplace where I feel teachers are considered the professionals they need to demand they are...
Bob R/CA - I recall the case in Chicago where the principal was almost fired when two girls made up stories about him touching him inappropriately. Students are aware of their "power" there it seems :o/
Sarah - Max, this is one of the reasons I think teachers should at least take a basic law course; my students are always telling me how much more secure they feel even with just the basics to form parameters for them. I think the fear you all feel is legitimate. Of course anyone can sue anyone, but not anyone can win. It's sometimes hard to remember this and of course the pain of litigation is not to be underestimated even i you do win.freeal - Sarah, how did you become involved in law?
Sarah - Freeal, I went to law school because I saw the law as a vehicle for social good (change). i still do, though it's not always so clear what the path is. Education is an area where are lot of people are wearing white hats (I used to practice environmental law where the black hats were a little more obvious.)Mary/PA - If a student is meeting the goals of his/her IEP, but unable to pass the test that determines weather or not he/she goes on to the next grade, would it be illegal to retain him/her? Which law would prevail? State or Federal?
Addie /MO - Mary, In MO the IEP students are exempt from the mandatory retention law. It is written into the law.
Mary/PA - That's good
*max* - parents in Florida want their disabled students remediated up to grade level, regardless of the disability....
Sarah - There is an early question about which law would prevail. As a general matter federal law MAY preempt state, but in the example you give it is not clear. Much more likely that state law will speak to the question as another of you has pointed out.Worth/SC - Is anyone keeping stats on lawsuits against teachers? Is the "increase" real or perceived?
Bob R/CA - and who is maintaining a clearinghouse of resources to help teachers stay out of trouble?
Sarah - Worth, I don't know if anyone is keeping statistics. But if it is only perceived, I perceive it as well from my general reading.
*max* - NICHCY has a lot of information about all the special ed issues, they are a clearinghouse
Sarah - Bob, a clearinghouse is a great idea, but i don't know of one that is general. The edlaw list is a bit of help, but not as active as it might be.
Bob R/CA - this info may be dated:
Bob R/CA - EDLAW. EdLaw is designed for those who teach and practice law concerning public education, private education, and colleges and universities. It is intended to be an exchange of information on legislation and litigation and their various components. Subscribe to: LISTSERV@UKCC.uky.edu Text of message: subscribe EdLaw your_name Post messages to: EdLaw@UKCC.uky.edu Unsubscribe to: LISTSERV@UKCC.uky.edu Text of message: signoff EdLaw For more information, contact the list owner: Virginia Davis-Nordin NORDIN@ukcc.uky.edufreeal - Sarah, I am teaching a university teaching methods class this year. Any suggestions regarding law awareness?
Sarah - I'd have them read at least one scary case,, for example, the Wisconsin case Nabozny (i'll find the citation later and put it up on our website) where the school ignores serious mistreatment of a student. I'd also have them read an academic freedom/teacher type case just to get them thinking about the parameters.
Sarah - Also, freeal, this is my chance to advertise. I've just submitted a manuscript to Carolina Academic Press on Legal Research and Analysis for Educators, it's an introductory book... if you want to know more email me at sredfield@fplc.edu.Bob R/CA - guests tonight - what are some of your experiences with law in your classroom?
freeal - Sarah, what are the questions (cases) you are most frequently involved?
Sarah - I get a lot of calls from parents, I guess because I'm a law professor (??). They usually involve discipline of one kind or another. Also harassment.
Addie /MO - harassment? student to student??Addie /MO - mary, i was thinking about your IDEA questions and what the "reg ed" students' rights are. that is a really frustrating situation. i guess it is just up to the school and the teachers to monitor the situation and then if a change is warranted be able to put it in terms of how it is "best for the sped. ed student". tough situation.
Sarah - I agree with Addie and Mary about the difficulty special ed and nonspecial ed. Right now it seems inherent in the system, and it seems to me if anything will lead to a backlash this will be it.Bob R/CA - Sarah, were you a classroom teacher before a lawyer?
Sarah - Bob, I was a lawyer first, and then began law teaching.
Addie /MO - sarah, are there many ed lawyers who follow the career path from the classroom to law school and eventually to practice?
Sarah - There are some that I know, but i don't really know how many; it seems to be most often in the sped arena, though one of our favorite adjuncts at the law center (from the UGA law school) went from k12 teacher to law student to supreme court clerk to law prof!
*max* - "my lawyer" was a sp ed teacher first!Jules/GA - Most of my experiences deal with "neglect" of student needs by parents (ex: no hearing aids for a child who needs them, students with special needs whose parents refuse to test). It is very frustrating to me as a regular ed teacher that these children just keep advancing without any help!
Addie /MO - jules, i suppose that a mandatory retention law (with its pitfalls) would address that situation ....either agree to testing and show the need for an IEP or remain in the same grade.Bob R/CA - more info about our guest Sarah Redfield: Sarah E. Redfield is a former assistant attorney general for the State of Maine. from http://www.edlaw.fplc.edu/ - "Professor Redfield is particularly interested in the way government, through its courts, legislature, and agencies, impacts educational institutions and students. She teaches Administrative Process, Alternative Dispute Resolution, and Education Law."
Bob R/CA - Professor Redfield speaks locally and nationally on current education law topics. If you'd like to meet her this year she will be presenting at the CALI conference in Chicago, IL, (proposed); June 22-24, 2000; and of course at the Education Law Institute at Franklin Pierce Law Center in Concord, NH, July 24-28, 2000.emily - I'd like to know if parents have any legal rights to refuse homework assignments for their children, particularly first-graders.
Sarah - Emily, I don't think I'd say it was a legal (or constitutional) right. This is the kind of thing that should be resolved by conversation or even negotiation or mediation, not rise to the level of a legal dispute.Bob R/CA - Sarah, what was your most interesting case you've been personally involved with?
Sarah - I don't carry my own case load any more. Of the questions I've dealt with informally I'd say the most interesting now involve threats of violence. For example, the outraged parent who called because her child had made a threat (serious sounding to me) and the school had required counseling evaluation.
Addie /MO - so did that parent have any grounds to refuse the counseling evaluation? as an educator, i see the need to protect the rest of the school against potential harm over that child's "right" to refuse the eval.
Sarah - Addie, the parent eventually went along; had it gone to court, i believe (as I told the parent) that the court would have upheld the school's decision on the facts.freeal - Sarah, you might be interested in what my students found when they researched why people did not vote> http://home.earthlink.net/~dissanayake/suzweb/
*max* - there was just a very big law victory for a family in Florida for the failure of the school to adequately provide for their autistic daughter, but really, NO ONE WON!!!
Sarah - Max makes a great point. We often lose track of the children in all the legal wrangling, something I like to avoid...*max* - our school would move on to due process addie, if we felt the child presented a danger to self or others and we couldn't get parents to act any other way
Bob R/CA - I want to thank our guest Sarah Redfield of the Education Law Institute for being here tonight. By the way, you can catch her this summer at the CALI conference in Chicago, IL, (proposed); June 22-24, 2000; and of course at the Education Law Institute at Franklin Pierce Law Center in Concord, NH, July 24-28, 2000.
Sarah - My thanks for a great time and goodnight to all. Feel free to email me for more info.
Bob R/CA - For more information, you can email Professor Redfield at sredfield@fplc.edu .Bob R/CA - Thanks all for being here, if you haven't already, please subscribe to our Events newsletter for daily announcements of that evening's live events - http://teachers.net/mailrings/
Bob R/CA - Goodnight.... :o)
