National School Boards Association Submits Amicus Brief on Petition Issue

            On December 13, 2010, the National School Boards Association (“NSBA”) submitted its Amicus Curiae (“friend-of-the-court”) brief to the United States Supreme Court in the case of Borough of Duryea, Pennsylvania v. Guarnieri.  In the underlying decision by the Third Circuit, the panel ruled a public employee may sue his/her employer under the Petitions Clause of the First Amendment for adverse employment actions allegedly resulting from the filing of a “petition” on matters of purely private concern.  The Third Circuit is the only Court of Appeals to so hold. 

            The issues raised by the Third Circuit decision will affect not only school boards and schools, but could impact the current status of protected speech for all public employees.  The question presented as described by the Court is “Whether the Third Circuit erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment's Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue,” which indicates the Court understands the effect of its decision in this case.  Oral arguments have not been set at this time.

            The Third Circuit’s opinion can be found at the following link: Borough of Duryea, Pennsylvania v. Guarnieri.

            The NSBA’s Amicus Curiae Brief can be found at the following link: NSBA’s Amicus Curiae Brief.

Fifth Circuit Issues Opinion Holding that a Student Not Yet Determined to be a Child with a Disability is Not Permitted to Recover Attorneys’ Fees under the IDEA

            On December 20, 2010, the Fifth Circuit issued an opinion in T.B. v. Bryan Indep. Sch. Dist., Case No. 08-20201 (5th Cir. 2010), holding that the IDEA does not allow a student not yet determined to be a “child with a disability” to recover attorneys’ fees.  In T.B., Plaintiff was the prevailing party on certain issues following a due process hearing; however, the student was not yet determined to be a child with a disability.  As a result of the due process hearing, the District was ordered to evaluate the student to determine whether the student was entitled to special education services.  Despite the favorable order at the due process hearing, the Fifth Circuit stated that the student’s parent could not collect attorneys’ fees, because the IDEA only permits a parent of a “child with a disability” to recover attorneys’ fees.

            The Fifth Circuit’s opinion is available at the following link: T.B. v. Bryan Indep. Sch. Dist.

U.S. Department of Education Focusing More on Bullying in Schools

As we have reported in prior issues of the School Law Alert, the U.S. Department of Education is focusing more on bullying in schools.  This month, the U.S. Department of Education issued a memorandum outlining key components of strong state bullying laws and policies and also published a copy of a press release from the Federal Partners in Bullying Prevention Task Force announcing that it would begin accepting submissions from the public on ways to combat bullying.  The memorandum and press release are available at the following links:

• U.S. Department of Education Press Release and Memorandum; and

• Federal Partners in Bullying Prevention Task Force Press Release Regarding Best Practices to Combat Bulling.

Florida Attorney General Issues Opinion Regarding Terminal Pay

On December 27, 2010, Florida Attorney General Bill McCollum issued an opinion as to whether Section 1012.65, Florida Statutes (terminal pay for accrued vacation leave), limits a school board from paying no more than 60 days of accrued vacation leave as terminal pay for leave for school board employees holding multi-year employment contracts entered into prior to July 2001 and ending June 30, 2004.  After addressing the legislative history of the applicable statutes, the Attorney General McCollum answered the question as follows:

• In sum, it is my opinion that section 1012.65, Florida Statutes, requires that the 60-day cap for the lump sum payment of accrued vacation leave established by section 1012.65, Florida Statutes, applies to contracts entered into after July 1, 2001. Section 231.481, Florida Statutes (2001), the predecessor statute to section 1012.65, however, also imposed a 60-day cap for contracts entered into after July 1, 1995. For school board employees holding multi-year employment contracts entered into prior to July 1, 2001, and ending June 30, 2004, such payments are governed by the terms of the contract. However, if such contract was entered into after July 1, 1995, the payments would be limited to 60 days.

The Attorney General Opinion is available at the following link: AGO 2010-49.

Expectations for Disabled Students Increasing in Florida

The Florida Times-Union recently published an article highlighting the increase in expectations for students with disabilities in Florida.  Specifically, Florida “will no longer approve courses that are modified special standards for elementary schools. It will do the same in middle school by 2012-13 and in high school by 2013-14.”  In addition to addressing the upcoming changes, the article noted several interesting facts regarding students with disabilities in Florida, including the following:

• Approximately 14% of Florida students have a disability;
• The percentage of students with disabilities in Florida taking general education courses has increased from 48% to 67% since 2001;
• The percentage of students with disabilities in Florida receiving a standard diploma in four years has increased from 30% to 49% since 2001; and
• Pursuant to federal policy, special diplomas are not counted as part of a school’s graduation rate.

Source: Florida Times-Union.

Florida High Schools Excel Under New Grading System

On December 7, 2010, the Florida Department of Education issued a press release regarding the increased performance of Florida’s 470 high schools in 2009-2010 under a new high school grading system.  The new grading system is based on FCAT performance, graduation rates, student participation and performance in advanced coursework, and preparation of students for college and their careers.   FCAT performance accounts for 50% of the total grade whereas all other factors account for the remaining 50%. Under the new system, 71% of all Florida high schools received an “A” or “B” grade.  The following is a complete breakdown of the grades:

• 140 earned an “A” (30 percent), an increase of 46 schools compared to last year;
• 192 earned a “B” (41 percent), an increase of 81 schools compared to last year;
• 69 earned a “C” (15 percent), a decrease of 54 schools compared to last year;
• 58 earned a “D” (12 percent), a decrease of 62 schools compared to last year; and
• 11 earned an “F” (2 percent), a decrease of 12 schools compared to last year.

The Florida Department of Education’s press release is available at the following link: Press Release.  Importantly, the press release contains links to the 2009-2010 high school grades as well as other information regarding the results.

Florida Department of Education Creates Website to Assist Teachers

            On December 20, 2010, the Florida Department of Education launched a website to assist K-12 teachers in increasing academic achievement in writing.  The website includes lessons, courses, and various state and national research and reports.  The website is available at the following link: www.fldoe.org/bii/fl-win.

 The Florida Department of Education’s press release is available at the following link: Press Release.

Firm News

Robert J. Sniffen recently co-presented, “Overview and Current Topics on Religion and Prayer in Public Schools” at the 65th Annual Joint Conference of the Florida School Boards Association.