Thursday, June 25, 2009

Strip search violated student's rights, Court finds, but no administrator liability

A fractured Supreme Court found today that a student's constitutional right to be free from unreasonable search and seizure was violated when administrators strip searched her in search of ibuprofen, but that those administrators were not personally liable because the law was not "clearly established" at the time of the search.

The Court's opinion reiterated that the legal standard for student searches put forward by the Court in the TLO case still applies in public schools. That standard requires less than the probable cause normally required when the government conducts a search. However, school searches must be reasonable under the circumstances and proportional to the suspicion that gave rise to the search.

While the Court found that the search of the student's backpack and outer clothing was reasonable under the circumstances of this case, the Court held that the strip search went too far (the administrators made the girl partially remove her bra and required her to fan out her underwear). But because the law was not "clearly established" at the time of the search, the administrators were immune from liability.

This case is significant for a few reasons, one of them being that courts (and the Supreme Court) have increasingly deferred to judgment of school administrators in such matters, particularly where drugs are concerned, as was the case in Morse v. Frederick (that case, admittedly, was about speech and not intimate strip searches).

Parents, students, and administrators should take note of the facts in this case. While the law may not have been "clearly established" at the time of this particular search, this case will help to more clearly establish the factors in an unreasonable search where administrator liability may lie.

Monday, June 22, 2009

U.S. Supreme Court confirms that school districts may be liable for reimbursement when they fail to provide a free appropriate education

The U.S. Supreme Court, in a 6-3 opinion released today, has made it easier for parents of special education students to be reimbursed for the cost of private schooling for their children.

The lawsuit had been brought by a teenage boy from Oregon whose parents sought the court to force the public school district in which he lived to pay the $5,200/month it cost to educate him at the private school.

At the center of the case was IDEA, the federal law that requires all States receiving federal funding to provide a "free appropriate public education" (FAPE) to all children with disabilities residing in the State. It was clear that when a public school fails to provide a FAPE, and a child’s parents place the child in an appropriate private school without the school district’s consent, a court may require the district to reimburse the parents for the cost of the private education. However, the question before the Court was whether 1997 amendments to IDEA barred an action for reimbursement for private-education costs if a child had not “previously received special education and related services under the authority of a public agency." The Court held that it was not necessary for the child to have previously received special education and related services by the School District to be reimbursed for those services.

In this case, the child, T.A., had been educated in the same district from kindergarten through his junior year in high school. From kindergarten through eighth grade, the student's teachers had observed that he had trouble paying attention in class and completing his assignments. When he entered high school, his difficulties increased. Nonetheless, the school district repeatedly concluded that the student did not qualify for special services related to any learning disability. His parents finally removed him from public school and requested reimbursement from the school district for his education.

A hearing officer found that the parents were entitled to reimbursement; the U.S. District Court reversed, finding that IDEA did not provide such a remedy. However, the 9th District Court of Appeals reversed the District Court, finding reimbursement an appropriate remedy. Today's decision affirms that reimbursement may be an appropriate remedy when a public school district fails to provide a FAPE, and enrolling the student in private school is appropriate.

Wednesday, June 17, 2009

State Board of Education considering new rules for school employees with convictions

The State Board of Education is debating a proposal that would give greater leeway to school districts to hire non-licensed personnel, such as custodians, secretaries, bus drivers, and cafeteria workers, who have nonviolent criminal convictions.

The proposal would allow districts to hire applicants (and keep current employees) who can show that they have been rehabilitated for a period of years. The proposal would not be a mandate; a school district could apply tougher standards than the state.

Generally, under the proposal, people convicted of non-violent felonies, would be required to show they have had a clean record for 20 years; drug offenders would have to stay clean for 10 years, and misdemeanor offenders would have to have a clean record for 5 years.

In addition to having no new criminal convictions, the non-licensed personnel would be required to provide the district with a statement from a court, parole officer, probation officer or counselor.

While good arguments exist on both sides, school districts should be given the opportunity to hire the most qualified, able-bodied applicants for the job, even if those applicants have a several years-old, relatively minor criminal conviction. Unless there is a good reason to exclude someone with a conviction from working in the schools (i.e. sexual conviction), first-time offenders should be given an opportunity at a second chance if they have been rehabilitated.