LABOR AND EMPLOYMENT ALERT   October 2010

School District Prevails in IDEA Lawsuit Demanding Tuition Reimbursement and Compensatory Education for School District’s Delay in Processing Due Process Hearing Request

On September 27, 2010, the United States Court of Appeals for the Third Circuit affirmed the lower court’s decision to grant the Rose Tree Media School District’s (“District”) Motion for Judgment on the Administrative Record.  C.W. ex rel. Louise W. v. The Rose Tree Media School Dist., Case No. 09-2731 (3d Cir. 2010).  C.W. was a high school student suffering from ADHD.  On September 10, 2001, C.W.’s parents requested a due process hearing after rejecting a proposed Individualized Education Plan (“IEP”).  Soon after the due process request was submitted, C.W. withdrew and enrolled at a private school.  The District did not process the due process request until November of 2002, and a hearing was not held until February 3, 2003.  The District prevailed in the due process hearing and in a subsequent federal court action.

On appeal, the Third Circuit did not need to decide whether the IEP offered C.W. a Free Appropriate Public Education (“FAPE”), because the issue was not raised in the appeal; rather, C.W. argued on appeal, “the extended delay between her request for a due process hearing to review the proposed IEP and the ultimate resolution of this issue was so egregiously prolonged that the delay offers independent justification for granting an award of tuition reimbursement or compensatory education.”  The Court ultimately held that C.W. was not entitled to tuition reimbursement and reasoned, “the fact that there was an extended delay in upholding the IEP has no relevance to the appropriateness of the education offered to C.W., and punishing the District by requiring it to reimburse tuition for which it would not otherwise be responsible does not advance the goal of providing education to those with disabilities.”  The Court also refused to provide compensatory education, because C.W. was unable to establish that she did not receive an appropriate education.

The full opinion in C.W. is available at the following link: C.W. ex rel. Louise W. v. The Rose Tree Media School District

Case Law Update: Florida Supreme Court Upholds Validity of Amendment 8

On October 7, 2010, the Florida Supreme Court affirmed the First District Court of Appeals’ decision upholding the validity of Amendment 8.  Specifically, the Supreme Court held that the ballot title and summary accurately reflect the purpose of the Amendment and provide fair notice to voters as to the Amendment’s effect.  Amendment 8 will remain on the November ballot.  

The Florida Supreme Court’s Order is available at the following link: Florida Supreme Court's Order

United States Department of Education Issues Press Release and Guidance Letter Related to Bullying in Schools

On October 26, 2010, the United States Department of Education announced through a press release that it was issuing a guidance letter to assist educators “in combating bullying in schools by clarifying when student bullying may violate federal education anti-discrimination laws.”  The guidance letter also makes clear that “while current laws enforced by the department do not protect against harassment based on religion or sexual orientation, they do include protection against harassment of members of religious groups based on shared ethnic characteristics as well as gender and sexual harassment of gay, lesbian, bi-sexual, and transgender individuals.”  The guidance letter was sent to various schools, colleges, and universities.

The full press release is available at the following link: Press Release (October 26, 2010)

The guidance letter is available at the following link: Dear Colleague Letter

Indiana High School Athletic Association Prevails in Lawsuit Alleging it Violated Title IX and the Fourteenth Amendment (Equal Protection) by Scheduling Boys’ Basketball Games on More Preferable Days than Girls’ Basketball Games

In Parker v. Indiana High Sch. Athletic Ass’n, Case No. 1:09-cv-885-WTL-WGH (S.D. Ind. 2010), Plaintiffs alleged that the Indiana High School Athletic Association (“IHSAA”) violated Title IX and the Fourteenth Amendment by scheduling more boys’ than girls’ basketball games on Friday and Saturday evenings.  With respect to the Title IX claim, the Court held that the “treatment of the Plaintiffs does not result in a disparity that is so substantial that it denies the Plaintiffs equality of athletic opportunity.”  Plaintiffs also argued that IHSAA violated the Fourteenth Amendment “by failing to mandate gender equality in the scheduling of basketball games during prime times through its otherwise expansive regulatory powers in accordance with its policy of deliberate indifference, IHSAA is actually facilitating discriminatory gender-based scheduling by its member schools.”  The Court ruled in favor of IHSAA holding, among other things, that Plaintiffs failed to cite a single federal case “that supports using a deliberate indifference theory to hold the IHSAA liable in this situation…[j]ust because the Plaintiffs have allegedly suffered an injury does not mean that they can hold the IHSAA liable. Before a state actor's failure to act can give rise to legal liability, there must be a constitutionally recognized duty on the defendant to act.”
Source: National School Boards Association Legal Clips

United States Department of Education Publishes Quarterly Index of OSEP Policy Documents Relating to the IDEA

In accordance with Section 607 of the Individuals with Disabilities Education Act (“IDEA”), the Secretary of Education published an index of all correspondence describing interpretations of IDEA or its implementing regulations (i.e. technical assistance correspondence).  The publication includes links to all correspondence dating back to 2000 and is also indexed by topic area.

The full index is available at the following link: Index of OSEP Policy Documents on the Education of Infants, Toddlers, Children and Youth with Disabilities

Historic Increase in United States Department of Education Civil Rights Complaints

According to an article published by the Associated Press, the United States Department of Education’s Office of Civil Rights received approximately 7,000 complaints this year which represents an 11% overall increase (the highest increase in 10 years).
Sources: Associated Press (Christine Armario); National School Boards Association Legal Clips

Florida Department of Education Creates Website Related to Class Size Reduction Amendment

The Florida Department of Education recently launched a website containing information related to the Class Size Reduction Amendment.  The website contains historical information, information regarding Amendment 8, and news articles related to the Class Size Reduction Amendment.  

The website is available by accessing the following link: Class Size Reduction Amendment Website

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