LEGAL BRIEFS FROM THE NASBE

Legal Briefs is furnished to you by way of the “NSBA Legal Clips”, a weekly e-newsletter from the National School Boards Association. Free subscriptions to this e-newsletter are available at: www.nsba.org/legalclips

AUGUST 19, 2004

Rural Schools Get Help Complying With NCLB

“Too often, rural education is overlooked or an afterthought when it comes to school reform... State boards of education, at least, have not forsaken small, rural schools.”

Alexandria, VA - A comprehensive compliance manual specially designed to help rural and small schools comply with the legal requirements of the No Child Left Behind Act is being issued by the National Association of State Boards of Education (NASBE). The 335-page guide includes the relevant statutory provisions of NCLB, the implications for rural communities, and practical advice schools can follow to ensure that they are meeting the letter of the federal education reform law. The how-to manual, No Child Left Behind and Rural Education: Implications for Policy and Practice, is being nationally distributed.

Senator Michael Enzi (R-WY) will present the manual at a press conference on July 22, 2004 commencing at 10: 00 am in the Senate Dirksen Building room 116. Senator Enzi is head of the Senate Rural Education Caucus and a passionate supporter of rural and small schools.

Brenda Welburn, NASBE Executive Director, has said, “Too often, rural education is overlooked or an afterthought when it comes to school reform. Clearly, the requirements of the No Child Left Behind Act were developed with a more urbanized school setting in mind.” “State boards of education, at least, have not forsaken small, rural schools. We have established a Center on Rural Education that works with states and rural districts to solve their unique challenges, such as limited resources and remote locations, to not only comply with the No Child Left Behind Act but to deliver the best possible educational and instructional services to students. This policy manual is the most recent example of the comprehensive and quality assistance NASBE continues to provide rural schools,” said Welburn.

12 million students, or approximately 27% of the national school enrollment, attend a rural or small school. About one-third (4,700) of the nation’s local school districts are considered rural. There has been a growing appreciation among federal lawmakers of the difficulties the No Child Left Behind Act’s (NCLB) reforms pose for rural schools.

The vast distances between rural schools, for instance, often make the law’s school choice options unrealistic, and small, isolated communities find it difficult to attract and retain teachers that meet the law’s definition of “highly qualified.” The rural policy guide and the Center on Rural Education were supported with funds from the U.S. Department of Education and Texas Instruments.

No Child Left Behind and Rural Education: Implications for Policy and Practice can be ordered for $35 by calling 800/220-5183.

For additional information on recent school law developments, visit NSBA's Council of School Attorneys (COSA) website at: http://www.nsba.org/cosa/.

School Board Bills US Dept of Ed

By Damian J. Troise; Foster’s Daily Democrat

The Barrington School Board (NH) has billed the U.S. Department of Education (ED) in the amount of $2 million for “services rendered” to express its dissatisfaction with the level of federal funding provided for special education. The board also sent a letter to both of its U.S. Senators, Judd Gregg and John Sununu, criticizing Congress for not doing enough to assist school districts in obtaining the funding they need to meet federal requirements. When the Individuals with Disabilities Education Act (IDEA) was enacted in 1975, Congress promised to fund 40% of the per pupil costs for students in the program. However, according to special education experts, the federal contribution currently amounts to only about 18% to 20% of the costs. Barrington spent $1.9 million on special education this year, but received only $67,929 in federal IDEA funding, well short of the 40% reimbursement. “Year after year, after year, local taxpayers are forced to compensate for the inadequacies of Congressional funding,” the board’s letter states. “Year after year, politicians make promises and still do not properly fund these mandated services.” Senator Gregg’s office said that he has helped increase federal funding of special education nationally from $2 billion to $11 billion and that federal special education funding for New Hampshire has increased by 477% during his term. However, Senator Gregg voted against an amendment this year that would have increased IDEA funding levels, saying it would increase the federal deficit. The board’s letter points out that the result is that the burden falls unfairly on residents in the form of higher local property taxes.

for the full story go to: http://www4.fosters.com/July2004/07.16.04/news/ro_0716b.asp

Florida Court Stikes Down Vouchers

A Florida state court of appeals has ruled that the state’s “Opportunity Scholarship” voucher program violates the state constitution’s “no-aid” provision, which prohibits the expenditure of public funds “directly or indirectly” to aid sectarian institutions. To the extent the program authorizes state funds to be paid to sectarian schools, it is unconstitutional, the court held. The court rejected the state’s argument that the Florida constitution provides no greater restrictions on taxpayer support of public institutions than does the federal Establishment Clause. The language of the state and federal provisions is not synonymous, the court noted: “For a court to interpret the no-aid provision of article I, section 3 as imposing no further restrictions on the state’s involvement with religious institutions than the Establishment Clause, it would have to ignore both the clear meaning and intent of the text and the unambiguous history of the no-aid provision.” The court also rejected the state’s argument that the state constitution violates the Free Exercise of the U.S. Constitution, taking note of the recent U.S. Supreme Court ruling in Locke v.

Davey, 124 S. Ct. 1307 (2004), that the U.S. Constitution does not require a state government to subsidize religious instruction whenever it subsidizes non-religious instruction. The court certified its decision to the state supreme court as a “question of great public importance.”

Bush v. Holmes, Nos. 1D02-3160, 1 D02-3163, 1D02-3199 (Fla. Dist. Ct. App. August 16, 2004)

For the full opinion the PDF can be accessed at: http://www.1dca.org/opinion/opinions2004/8-16-04/02-3160.pdf

NCLB Requires Schools Submit Student Names To Military Recruiters.

Lexington Herald-Leader, By Associated Press

The No Child Left Behind Act (NCLB) requirement that public high schools provide military recruiters with student names, addresses, and telephone numbers has Louisville, Kentucky school officials at odds with some parents and peace activists. The protesters object to the schools giving the recruiters the information without notifying parents they can request that a child's contact information be kept private. While some schools provide parents with a written explanation regarding the military recruiting provisions of NCLB, other schools inform students at assemblies that they can submit a form to stay off the list. A 2002 Army survey reported that almost 50% of recruits said they, and not a recruiter, initiated the first contact, while about 33% said they first were contacted by recruiters. Grayson County High School Principal Mic Huffman, who supports the military and complies with the law, questions the need for recruiters to contact high school students without parental involvement. “We've had parents call after the Army has contacted their sons directly and tell us they don't want that to happen,” he says. “That has happened. It puts us in a hard position between the parents and the military.”

for full story go to: http://www.kentucky.com/mld/kentucky/news/local/9299560.htm

[Editor’s Note: NCLB requires notice to parents, and federal guidance indicates that the school district’s notification method must be reasonably calculated to reach parents. For a summary of the military recruiter and opt-out provisions, see below.]

http://www.nsba.org/site/docs/32500/32420.pdf

Parents Denied Access To Their Childrens’ Records.

The Indiana Court of Appeals has ruled that a state law that defines the circumstances under which a school may disclose a student’s educational records without parental consent does not imply that a parent has a right to access the records. A.R. was attending the private Canterbury School when his mother became involved in a dispute with the school regarding her son’s medical condition. She requested access to A.R.’s education records. When the school denied the request, she sued, alleging that the state statute provides a parent with the implied right of access to the student’s education records. The trial court dismissed the mother’s claim. After reviewing the statutory language in question, the appellate court affirmed, concluding that the statute’s scope is clearly and unambiguously limited to addressing the right of noncustodial parents to the same access to their children’s education records as custodial parents. The fact that a school may, under certain circumstances, release information contained in a student’s education records without parental consent was irrelevant to the mother’s claim, the court held.

Robbins v. Canterbury School, Inc., 2004 WL 1598299 (Ind. App. July 19, 2004)

For the full opinion:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=in&vol=app\07190404.jsk&invol=2

Teachers Flunk Tests: Sue ETS As Monopoly

Plain Dealer, By Associated Press

Two teaching candidates who lost their positions after they mistakenly received failing grades on their licensing examinations are suing the testing company. The plaintiffs allege that Educational Testing Services (ETS) is violating federal antitrust laws. The lawsuit alleges that ETS holds a monopoly because it is the only company that administers the test of teaching skills and general knowledge that prospective educators must pass. There are at least four other suits around the nation that accuse ETS of having an illegal monopoly. Phyllis Brown, the attorney representing the two teacher candidates, has requested the court to certify the case as a class action. She says 4,100 people were affected by incorrect grading in nineteen states that use the test for prospective teachers of grades seven through twelve. While ETS declined to comment on the suit directly, it did say that incorrect scores were issued to about 10 percent of the 40,000 people who took the Praxis Principles of Learning and Teaching test from January 2003 through April 2004. Company officials added that they are tracking down each person who received a faulty score to apologize and refund the $115 test fee and other expenses.

The link below to the full story has a brief “pre-screen” that asks you for simple demographic information.

http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/1091703315293470.xml

Maternity Leaves Nixed For Probationary Teacher.

The U.S. Court of Appeals for the Eleventh Circuit has ruled that a school district did not engage in retaliation under the Family and Medical Leave Act (FMLA) when it decided not to renew the teaching contract of a teacher who requested maternity leave before she was an “eligible” employee within the meaning of the FMLA. The Elmore County School Board hired Brandi Walker as an elementary school teacher under a one-year contract. The contract was to be renewed automatically at the end of the school year unless the board voted not to renew it. In December, Ms. Walker informed her principal that she was pregnant. In April, she indicated that she was due in August and asked the principal how to go about obtaining maternity leave. The principal informed her that the request should be made to the school board, but advised her to wait until the board decided whether to renew her contract. In May, the board voted not to do so. Ms. Walker sued, alleging that (1) as an “eligible” employee, she was entitled to maternity leave, and (2) the board’s decision not renew her contract was in retaliation for her exercising her rights under the FMLA. The district court granted the board summary judgment on both claims, concluding that (1) Ms. Walker was not an “eligible” employee within the meaning of the FMLA at the time she made the request, and (2) although she still had a valid claim because most of her leave period would have occurred after she became eligible, her claim nonetheless failed on the merits. The Eleventh Circuit affirmed but did not reach the merits of the claim. The court concluded that to state a claim for retaliation under the FMLA, the employee at the very least must be eligible for leave at the time the requested leave would commence. It left undecided whether the FMLA “protects a pre-eligibility request for post-eligibility maternity leave.” The court also overruled the district court’s holding that the FMLA “can protect someone who mistakenly asks for FMLA leave although they are ineligible.” Instead, the Eleventh Circuit held that “the statute does not protect an attempt to exercise a right that is not provided by FMLA, i.e., the right to leave before one becomes eligible therefor.”

Walker v. Elmore County Board of Education, No. 02-16509 (11th Cir. August 5, 2004)

Link to full opinion can be found at: http://caselaw.lp.findlaw.com/data2/circs/11th/0216509p.pdf

US Court Hears Race Biased Case In Student Assignment By Anand Vaishnav, Boston Globe The U.S. Court of Appeals for the First Circuit has completed hearing oral arguments in the Lynn, Massachusetts student assignment case, Comfort v. Lynn. After the federal district court ruled that the Lynn School Committee could use race as a factor in assigning students to schools to achieve the goal of racial and ethnic diversity, the plaintiff parents of students who were denied their choice of school appealed to the First Circuit. Coming on the heels of the U.S. Supreme Court’s rulings in the Grutter and Gratz cases that universities and colleges may use race as a factor in admissions policies, Comfort and a Ninth Circuit ruling last week against Seattle’s diversity plan are among the few K-12 cases testing the use of race in admitting and assigning students. In Lynn, the parents’ attorney, Michael Williams, argued that the racial makeup of schools contributes nothing to their quality and that the plan is nothing more than a unconstitutional racial quota. Assistant Massachusetts Attorney General Richard W. Cole, representing Lynn, contended the plan has produced the results that city leaders wanted: smoother race relations, better-performing schools, and well-rounded students who learned the value of racial harmony beginning in elementary school. Thirtyeight groups, including the attorneys general from Iowa, Maine, New York, and Utah, filed briefs supporting Lynn's plan.

For the full story visit: http://www.boston.com/news/education/k_12/articles/2004/08/06/court_eyes_race_in_school_assigning/ [

Editor’s Note: NSBA, along with four other educational organizations, joined the Council of the Great City Schools in filing an amicus brief in support of the school board. See below. The Legal Clips summary of Parents Involved in Community Schools v. Seattle School District No. 1 also is linked below.]

[Great City Schools amicus brief] [NSBA School Law pages on Seattle decision]

NJ Parents Sue District For Building Mold Problem

By Angela Delli Santi, New York Newsday

A group of parents is suing the Washington Township Board of Education (NJ), alleging that the district has mishandled chronic mold problems at middle schools and that toxic levels of mold are making their children seriously ill. The parents are requesting the court to order the district to (1) transfer their children to another school until the mold problem is eliminated; (2) pay for medical monitoring for affected students and obtain a new evaluation of the schools' air quality; and (3) allow any student who becomes ill after classes resume to transfer. The suit claims that students and teachers at both schools have complained of headaches, rashes, fatigue, difficulty breathing, and other symptoms, with toxic conditions reaching "epic proportions" in the last school year. Washington Township has spent $600,000 on air-quality improvements at the two schools since 1999 and is scheduled to spend another $1 million this summer. However, the parents’ attorney claims the district's remediation effort has been slipshod. He cites a report by an engineer hired by the parents that concludes that the mold source has yet to be identified definitively and that recommends a new evaluation before more money is spent. Superintendent Thomas Flemming disagrees that the remediation efforts have been unsuccessful. State health department inspectors expressed satisfaction with the work done to date, he says. “What we've done is controlled the humidly and thoroughly cleaned the building. That should assure that we will not have a mold problem.”

For the complete story, visit: http://www.nynewsday.com/news/local/ny-bc-nj--moldsuit0810aug10,0,3938045.story?coll=nyc-regionhomeheadlines

[Editor’s Note: NSBA’s BoardBuzz cautions schools about another challenge: reports that unscrupulous mold consultants are taking advantage of school districts concerned about situations like that described here to defraud them of huge fees. The item, with links to additional resources, is linked below.]

http://www.nsba.org/site/doc.asp?CID=1548&DID=34240#aug0304-1