Posts tagged with "bullying"

Labor & Employment Law – What to consider after losing your job

So you’ve lost your job.  Now what?  Depending on the circumstances, there are several legal issues to explore before moving on with your career.  Here is a basic summary of five issues to consider:

First:

File for unemployment as soon as possible so you don’t miss any deadlines.  There is no guarantee that you will be eligible for unemployment benefits but it doesn’t hurt to try.  You may be eligible for unemployment benefits depending upon the circumstances surrounding your job loss and whether you receive any compensation as severance on the way out the door.

Second:

Consider whether you have a contract with your former employer, either individually or through a union.  Today, at will employment is very common.  Generally, employers and employees each have the option to terminate the employment relationship at any time for any reason or for no reason at all.  However, an employee may have the right to enforce a contract if his or her employer failed to uphold the agreed upon terms of employment.  The provisions of a written contract are more likely to be enforceable but even an oral promise may have legal ramifications.

Third:

Make sure you are fully paid by your employer.  It is not unusual for an employer to fail to pay wages or to withhold a commission payment to a former employee.  Employers may face stiff penalties for neglecting to make these payments.  An employee may have several options to pursue a claim through the state or the court system.

Fourth:

Check to see if your former employer has any written policies or an employment handbook that may apply to you.  While the terms of a policy or handbook provision may not be legally enforceable against your employer, it doesn’t hurt to bring the relevant provision to the attention of your employer to see if they will honor it.  An example of a relevant provision would be a severance policy guaranteeing separation pay based upon years of service.

Fifth:

Verify what happens to your employment benefits now that you’ve lost your job.  Health insurance is the most common benefit to consider here.  Make sure to confirm when your employer will stop providing benefits.  Also, consider whether you want to continue any benefits through an individual plan.  You may be eligible for continued medical and dental benefits through The Consolidated Omnibus Budget Reconciliation Act (“COBRA”) as well.

This five-point list is not meant to cover all the possible issues that may arise when you lose your job but it is a starting point.  Under some circumstances, more complicated matters concerning deferred compensation, employment discrimination and whistleblower claims must be considered.  If you have any questions about your rights, please consult with an attorney.

 

U.S. Supreme Court Decides on Restrictive Interpretation of Required Causation for Title VII Employer Retaliation, Circumventing Congressional Amendment

University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013)

The United States Supreme Court decided two very closely watched employment law cases interpreting employer discrimination under Title VII of the 1964 Civil Rights Act.  This second case, University of Texas Southwestern Medical Center v. Nassar, like the former was decided 5-4 in favor of the employer’s interpretation.[1]  In Nassar, the Court held that the appropriate standard of causation for proving retaliation in violation of Title VII of the 1964 Civil Rights Act was “but-for-causation,” rather than the more lenient “motivating factor” burden of Congress’s 1991 Civil Right Act amendment.

Case Details

The petitioner and employer was a University of Texas medical center specializing in medical education. The university had an affiliation agreement with Parkland Memorial Hospital, which requires the Hospital to offer vacant staff physician posts to University faculty members. The respondent, Mr. Nassar, a physician of Middle Eastern descent, was a University faculty member and a Hospital staff physician.  Nassar claimed that Dr. Levine, one of his supervisors at the University, was biased against him on account of his religion and ethnic heritage.[2] 

On different occasions Nassar complained to Dr. Fitz, Levine’s supervisor about alleged ethnic and religious harassment.  Nassar arranged to continue working at the Hospital without also being on the University’s faculty.[3]  When Nassar resigned his teaching post, he sent a letter to Fitz and others, stating that his reason for leaving was because of Levine’s harassment, “religious, racial and cultural bias against Arabs and Muslims.[4]

Upset at Levine’s public humiliation and wanting public exoneration for her, Fitz objected to the hospital’s job offer to Nassar, which the hospital then withdrew.  Nassar claimed that Fitz’s efforts to prevent the Hospital from hiring him were in retaliation for complaining about Levine’s harassment, in violation of §2000e–3(a), which prohibits employer retaliation “because [an employee] has opposed . . . an unlawful employment practice . . . or . . . made a [Title VII] charge.”

Title VII of the Civil Rights Act

Title VII of the 1964 Civil Rights Act, 42 U. S. C. §2000e et seq., manifests the federal policy to prohibit unlawful employment discrimination and retaliation by employers, providing remedies to employees for injuries related to discriminatory conduct by employers.  Title VII prohibits multiple categories of wrongful employer conduct, the most common being status-based discrimination, which is employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like.[5] 

To ensure the effective enforcement of the statute, Title VII also prohibits an employer from retaliating against a worker for complaining about employment discrimination (for example, by filing a complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII).[6]

In general, when the law grants persons the right to compensation for injury from wrongful conduct, there must be some demonstrated connection or linkage, between the injury sustained and the wrong alleged.[7] The requisite relation between prohibited conduct and compensable injury is governed by the principles of causation. At issue in Nassar was the proper standard of causation the Court should apply in the context of an employee’s Title VII claim of employer retaliation.

Motivating Factor Burden

Title VII of the 1964 Civil Rights Act has been characterized by a back-and-forth between the Court and Congress, with Congress overruling a number of the Court’s restrictive interpretations of the statute in the past.  In Price Waterhouse v. Hopkins, 490 U. S. 228, the Supreme Court construed Title VII to require employees to prove that the status-based discrimination was the “but for” cause of the employee’s termination, failure to be hired, etc.  As a result, even if the employer admitted that race was one of the reasons for refusing to hire the worker, the worker could still lose if the jury believed that the employer would not have hired the worker anyway.

In response to this onerous standard, Congress enacted the Civil Rights Act of 1991, amending Title VII by replacing this standard with the motivating factor burden.  Congress added a new subsection to §2000e–2, providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”[8] 

Therefore, to prove employer discrimination, the employee is only required to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives for the decision.

The question before the Court in Nassar was whether the more lenient motivating factor burden also applies to claims of employer retaliation under §2000e–3(a), rather than the more onerous “but-for-causation” standard.

But-For-Causation Standard

A Court ruling for the university imposing a “but-for-causation” standard for Title VII retaliation claims would likely make it more difficult for victims of retaliation under Title VII to sue their employers, whereas a “motivating factor” standard could raise the number of frivolous claims filed, increasing the costs borne by employers in defending against potentially meritless litigation and contra the Court’s interest in preserving judicial economy.

The Supreme Court held that employee Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m).[9]

The decision was based on a close parsing of the statutory text and structure.  Writing for a five-Justice majority, Justice Kennedy explained that the “motivating factor” provision only applies to claims of “discrimination” under Title VII, meaning discrimination based on race, sex, and religion, rather than retaliation.

Anti-Retaliation Provision

Instead, Title VII’s anti-retaliation provision, §2000e–3(a), appears in a different section and uses considerably similar language to a related statute, the Age Discrimination in Employment Act of 1967 (ADEA).[10] §2000e–3(a) makes it unlawful for an employer to take adverse employment action against an employee “because of” certain criteria. In Gross v. FBL Financial Services, Inc., 557 U. S. 167 (2009), the Court, interpreting similar language, concluded that the ADEA requires proof that the prohibited criterion was the but-for cause of the prohibited conduct.

Justice Kennedy determined, “Given the lack of any meaningful textual difference between §2000e–3(a) and §623(a)(1), the proper conclusion is that Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”[11]

Justice Ginsburg, joined by the other three liberal Justices, strongly dissented. Justice Ginsburg took the unusual step of reading a summary of her dissent from the bench.  She argued that the Court had previously considered retaliation as a form of “discrimination,” and that the majority was ignoring the reasonable interpretation of the EEOC and the underlying purposes of the “motivating factor” amendment.  As she did in Vance, Justice Ginsburg ended her dissent calling for Congress to overturn the decision.

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about Title VII and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

[2] Id. at ­­­­­__.

[3] Id. at ­­­­­__.

[4] 42 U. S. C. §2000e-3(a)

[5] 42 U. S. C. §2000e-2(a)

[6] 42 U. S. C. §2000e-3(a)

[7] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

[8] 42 U. S. C. §2000e–2(m)

[9] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

[10] 29 U. S. C. §623.

[11] University of Texas Southwestern Medical Center v. Nassar, 570 U.S. ___ (2013).

US Supreme Court Establishes Employer Friendly Definition of “Supervisor” for Employer Liability for Title VII Employment Discrimination

Vance v. Ball State University, 520 U.S. ___ (2013)

The United States Supreme Court decided two very closely watched employment law cases interpreting harassment and discrimination under Title VII of the 1964 Civil Rights Act.  The first case decided 5-4 in favor of the employer, Vane v. Ball State University [1], addressed a question left open by two previous Supreme Court cases[2], who qualifies as a “supervisor” so as to hold an employer vicariously liability under Title VII for an employee’s unlawful harassment or discrimination?

Case #1

In this case, Maetta Vance, an African-American woman, was employed as a full-time catering assistant with Ball State University.  She initially filed internal complaints with BSU and charges with the Equal Employment Opportunity Commission (EEOC), alleging racial harassment and discrimination by a fellow employee, Davis, a white woman and catering specialist employed in the same division as Vance.

The situation persisted causing Vance to file a lawsuit in 2006 claiming that she had been subjected to a racially hostile work environment in violation of Title VII.  While the parties agreed that Davis did not have the authority to fire, hire, promote, or transfer Vance, in her capacity as a lead caterer, Davis controlled the day to day duties of Vance.  In her complaint, she alleged that Davis was her supervisor and that BSU was liable for Davis’ creation of a racially hostile work environment.

The plaintiff, Vance, argued that argued that a person is a “supervisor” if she has authority to control someone else’s daily activities and evaluate performance.  The employer argued that a “supervisor” must have more power, such as the ability to take a tangible actions including: “hiring, firing, demoting, promoting, transferring or disciplining” the employee.[3]

Under Title VII of the Civil Rights Act, an employer’s liability for harassment and discrimination depends on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions.[4]  However, if the harassing employee is the victim’s supervisor different rules apply.

Case #2

In two companion case from 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, the Supreme Court held that an employer is strictly liable under Title VII for discrimination or harassment by an employee who is a “supervisor” where the harassment amounts to tangible employment actions.

Where there is no adverse employment action, the employer is still vicariously liable for the supervisor’s hostile work environment unless the employer can establish as an affirmative defense that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.[5]  Under this framework, therefore, it matters whether the harasser is a “supervisor” or simply a co-worker.

Writing for a five-to-four majority, Justice Alito’s opinion adopted the rule proposed by the employer, holding that for purposes of this Title VII rule, to be a “supervisor,” a person must have the power to take a “tangible employment action” against the victim.[6]

That is, he must be able to “effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”[7]  The employer was entitled to win the case because Vance had not adequately shown that the person who discriminated against her was a supervisor under the Court’s definition.

Takeaway 

Thus, for the purposes of Title VII of the Civil Rights Act, “an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim,” such as significant change in employment status, responsibilities, or changes in benefits.[8]

The lawyers at Maya Murphy, P.C., are experienced and knowledgeable employment law practitioners and assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and elsewhere in Fairfield County. Should you have any questions about Title VII and workplace discrimination or any other employment law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut, by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] Vance v. Ball State University, 520 U.S. ___ (2013)

[2] Burlington Industries, Inc. v. Ellerth 524 U. S. 742 (1998), Faragher v. Boca Raton, 524 U. S. 775 (1998),

[3] 2008 WL 4247836, *12 (quoting Hall v. Bodine Elect. Co., 276 F. 3d 345, 355 (CA7 2002)

[4] Vance v. Ball State University, 520 U.S. ___ (2013)

[5] Faragher, at 807; Ellerth, at 765.

[6] Vance v. Ball State University, 520 U.S. ___ (2013)

[7] Vance v. Ball State University, 520 U.S. ___ (2013); Ellerth, 524 U.S. at 761

[8] Vance v. Ball State University, 520 U.S. ___ (2013)

Firing to Prevent Pension Vesting, Without More, Does Not Violate ADEA

In this economy, companies are terminating employees in an effort to increase share value or simply improve the bottom line.  Often it is the older, more senior, and more costly employees that are the first to go.  The question sometimes arises: “Can my employer fire me to prevent my pension from vesting (thereby saving itself money) without violating the Age Discrimination in Employment Act?”  The short and surprising answer is “yes,” assuming the absence of other critical allegations necessary to sustain an ADEA claim.

A Relevant Case

In a case out of the Second Circuit Court of Appeals, a Connecticut employee alleged in his Complaint only that “he was fired by defendants because he was nearing the age of retirement.”  The lower court dismissed this claim and the appellate court affirmed because this was the only fact alleged in the Complaint as evidence of age discrimination.  The United States Supreme Court has held that the firing of an employee to prevent his pension benefits from vesting does not, without more, violate the ADEA.

What essential allegations were missing?  In order to prevail, the plaintiff had to allege facts evincing that his employer was using pension status as a proxy for age, in order to discriminate on the basis of age.  How could he do that?  One way would be to plead and prove that his pension vested due to age and not years of service.  While age and years of service are empirically connected, the Supreme Court has said that they are “analytically distinct.”  What the Complaint lacked were additional allegations supporting a claim of age discrimination, for a successful ADEA plaintiff must prove that age actually motivated the employer’s decision.

The take-away from this case is that victims of age discrimination should consult with an experienced employment law litigator to ensure that an actionable claim is properly alleged in a Complaint.  In the case referred to above, it is impossible to say whether the plaintiff would have prevailed with a more artfully crafted Complaint.  What we do know is that his bare-bones Complaint was dismissed as insufficient without ever being heard on its merits.

The employment law attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience in the negotiation and litigation of all sorts of employment-related disputes and assist clients from Greenwich, Stamford, New Canaan, Darien, Norwalk, Westport and Fairfield in resolving such issues. Please contact our Westport office at 203-221-3100.

School Learning Environment

Connecticut Public Act No. 08-160, An Act Concerning School Learning Environment, is of interest to parents of school-age children and, in particular, parents of children with special needs.

Two of the major changes that are enacted are (1) all suspensions starting July 1, 2009, are in-school suspensions unless it is determined that the student is dangerous or disruptive to the educational process; and (2) all schools must “develop and implement a policy to address the existence of bullying in its schools.”  Also of note is a new provision that provides for in-service training for school personnel and pupils on a variety of issues they face daily.  A few examples are: (a) drug and alcohol awareness; (b) “health and mental health risk reduction;” (c) working with special needs children in regular classrooms; (d) CPR and emergency life-saving procedures…..

No Child Left Behind – Connecticut

What is NCLB?

One of the legislative centerpieces of Federal Education Law is “The No Child Left Behind Act of 2001” (“NCLB”).  The Act is 670 pages in length and almost as controversial as it is long.   Therefore, parents should be familiar with at least its stated purpose and general provisions.  NCLB does not, however, give parents the right to sue on behalf of their children. 

NCLB funds Federal programs established by the U.S. Department of Education aimed at improving the performance of schools throughout the 50 states by imposing greater accountability on public schools, expanding parental choice in the school attended by their child, and placing increased emphasis on reading and math skills.  NCLB has as one of its focal points the improvement of schools and school districts serving students from low-income families.

The theory underlying enactment of NCLB was that improved educational programs would enable students to meet challenging state academic achievement standards and thereby achieve their full potential.  Among other areas, the Act funds programs and resources for disadvantaged students, delinquent and neglected youth in institutions, improving teacher and principal quality, use of technology in schools, and fostering a safe and drug-free learning environment.  One source of controversy is the fact that NCLB allows military recruiters access to the names, addresses, and telephone listings of 11th and 12th grade students if the school provides that information to colleges or employers. 

Stronger Test Standards

More specifically, NCLB requires states to strengthen test standards, to test annually all students in grades 3-8, and to establish annual statewide progress objectives to ensure that all students achieve proficiency within 12 years. There are no Federal standards of achievement; each state is required to set its own standards. Test results and state progress objectives must be stratified based upon poverty, race, ethnicity, disability, and English proficiency to ensure that “no child is left behind.”  Schools and school districts that fail to make “adequate yearly progress” are subject to corrective action and restructuring.  Adequate yearly progress means, for example, that each year a school’s fourth graders score higher on standardized tests than the previous year’s fourth graders.

What if a school underperforms?

Once a school has been identified under NCLB as requiring improvement, corrective action, or restructuring, local school officials must afford its students the opportunity (and transportation, if needed) to attend a better public school within the same school district.  Low-income students attending a “persistently failing school” (i.e., one failing to meet state standards for 3 out of the 4 preceding years) are eligible for funding to obtain supplemental educational services from either public or private schools selected by the student and his parents. 

Under-performing schools are highly incentivized to improve if they wish to avoid further loss of students (and an accompanying loss of funding).  A school that fails to make adequate yearly progress for five consecutive years is subject to reconstitution under a restructuring plan.

Simply stated, NCLB provides states and school districts unprecedented flexibility in their use of federal funds in return for more stringent accountability for increased teacher quality and improved student results.

Improving Reading Ability and Instruction

One of the stated goals of NCLB is that every child be able to read by the end of third grade.  To this end, the Federal government invested in scientifically based reading instruction programs to be implemented in the early grades.  An expected collateral benefit of this initiative is reduced identification of children requiring special education services resulting from a lack of appropriate reading instruction. 

NCLB funds screening and diagnostic assessments to identify K-3 students who are at risk of reading failure, and to better equip K-3 teachers in the essential components of reading instruction.  Funds are also available to support early language, literacy, and pre-reading development of pre-school age children.

In keeping with its major themes of accountability, choice, and flexibility, NCLB also emphasizes the use of practices grounded in scientifically based research to prepare, train, and recruit high-quality teachers.  Once again, local school administrators are afforded significant flexibility in teacher staffing, provided they can demonstrate annual progress in maintaining and enhancing the high-quality of their teachers.

Ensuring Safe School Environments

Finally, in an effort to ensure safe and drug-free schools, NCLB, as proposed, requires states to allow students who attend a persistently dangerous school, or who have been victims of violent crime at school, to transfer to a safe school.  To facilitate characterizing schools as “safe” or “not safe,” NCLB requires public disclosure of school safety statistics on a school-by-school basis.  In addition, school administrators must use federal funding to implement demonstrably effective drug and violence prevention programs.

It is within this overarching educational framework of NCLB that the State of Connecticut oversees and administers its constitutional and statutory obligations to educate your children.

Did Basketball Powerhouse Force Coach to Resign Due to Her Disability?

Most people who have lived for some period of time here in Connecticut are amply familiar with the Lady Huskies and Lady Vols fierce decade-long rivalry. Before regular season matches were discontinued five years ago, these games were the highlight of the season. Thus, fans have come to form a love-hate relationship with Pat Summitt, Head Coach of the Lady Vols who has the most wins of any (both male and female) NCAA basketball coach.

It came as a shock to hear on April 18, 2012, after thirty-eight years of coaching, Summitt would be retiring from her post after being diagnosed with early-onset dementia-Alzheimer’s disease just before the start of the 2011-2012 season.[1] “I’ve loved being the head coach at Tennessee for 38 years, but I recognize that the time has come to move into the future and to step into a new role,” explained Summitt.[2]

As it turns out, the decision may not have been entirely that of Summitt.

In a recently released affidavit,[3] Summitt revealed that on March 14, 2012, she met with the University of Tennessee (UT) Athletics Director David Hart, who informed her that she would no longer be the coaching the Lady Vols. Summitt further explained:

This was very surprising to me and very hurtful as that was a decision I would have liked to have made on my own at the end of the season after consulting with my family, doctors, colleagues, and friends and not be told this by Mr. Hart. I felt this was wrong.[4]

UT spokeswoman Margie Nichols denied allegations that Summitt was forced out of her position. “It’s absolutely not true… It was Pat’s idea to become the head coach emeritus. I think she made that really clear at her press conference earlier this year.”[5] Regardless, this leaves many asking: was Summitt forced to resign because of her disability?

Discrimination in the Workplace

Under Connecticut law, employees enjoy a very comprehensive statutory scheme (found here) prohibiting discriminatory practices in the workplace. Unless the employer and its agents (such as administration or management) have a “bona fide occupational qualification or need,” it is a violation of the General Statutes:

To refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness.[6]

In addition, employees enjoy federal protection of their rights through such legislation as the Americans with Disabilities Act, the Rehabilitation Act, and the Family Medical Leave Act, to name just a few.

Discrimination on the basis of disability or another protected class is unfortunately a common occurrence in the workplace, but its prevalence in no way makes it lawful. If you are a teacher, coach, or any employee and you find yourself being the target of adverse employment action on any of the above bases, it is imperative that you consult an experienced and knowledgeable school or employment law practitioner.

Should you have any questions regarding employment discrimination or other education law or employment law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.

 


[1] “Pat Summitt’s Early-Onset Dementia: Lady Vols Coach Resigns Less Than A Year After Diagnosis.” Published April 18, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/04/18/pat-summitt-dementia-early-onset-alzheimers-memory_n_1435380.html

[2] Id.

[3] “Affidavit of Coach Pat Head Summitt.” Accessed October 5, 2012: http://www.documentcloud.org/documents/452632-pat-summitts-affidavit.html

[4] Id.

[5] “Pat Summitt Affidavit: Ex-Tennessee Coach Initially Felt Forced Out Of Job Over Early-Onset Dementia,” by Steve Megargee. Published October 3, 2012. Accessed October 5, 2012: http://www.huffingtonpost.com/2012/10/04/pat-summitt-affidavit-tennessee-coach-job_n_1937730.html

[6] Connecticut General Statutes § 46a-60(a). Accessed October 5, 2012: http://www.cga.ct.gov/current/pub/chap814c.htm#Sec46a-60.htm

New Connecticut Special Education Law

Connecticut Public Act No. 08-160, An Act Concerning School Learning Environment, is of interest to parents of school-age children and, in particular, parents of children with special needs.

Two of the major changes that are enacted are (1) all suspensions starting July 1, 2009, are in-school suspensions unless it is determined that the student is dangerous or disruptive to the educational process; and (2) all schools must “develop and implement a policy to address the existence of bullying in its schools.”  Also of note is a new provision that provides for in-service training for school personnel and pupils on a variety of issues they face daily.  A few examples are: (a) drug and alcohol awareness; (b) “health and mental health risk reduction;” (c) working with special needs children in regular classrooms; (d) CPR and emergency life-saving procedures…..

Placement in Appropriate Education Programs

Special education students are entitled to a free appropriate public education (otherwise known as “FAPE”), that must be tailored to the individual student. However, schools are not required to provide optimum programming – just “appropriate” programming. One federal judge has likened the difference between optimum and appropriate programming to that between a “Cadillac” and a “serviceable Chevrolet.” See Doe v. Bd. of Ed. of Tullahoma City Schools, 9 F.3d 455, 459-60 (6th Cir. 1993). However, if a particular service is required for the student’s special education needs, as evaluated, then the service must be provided without regard to how much it costs.

Sometimes, public schools simply do not offer the services that your child’s special education needs require. At this point, it may be possible to place your child in an appropriate private school and seek reimbursement from your school district for the associated costs. In order to do this, you must request a due process hearing and prove to an impartial hearing officer that not only does the private school meet your child’s educational needs, but that the school district failed to provide your child with a FAPE in a timely manner. Furthermore, you must comply with relevant statutory and regulatory requirements or your reimbursement award may be denied or reduced.

Significantly, one misstep in this process can mean losing your right to reimbursement – there are time limitations and notice requirements to comply with, and it is important to know all the details before a parent unilaterally places a child privately. Our experienced attorneys will make themselves available to guide and assist you in making a quick and efficient determination of the most effective plan of action for your family, while protecting your rights under applicable regulations.

Special Education Law: Evaluation and Identification

Children identified as having disabilities have different rights from other students. Accordingly, the identification process is a very important step. It begins with a referral sent to the student’s school district – specifically, a written request for an evaluation of whether the child is eligible for, and needs, special education services. This request can be made by the child’s parent, school personnel, or another appropriate person (such as a physician or a social worker).

Once the school district receives a referral, it must convene a planning and placement team (“PPT”) to review the referral, determine whether further evaluation is necessary and, ultimately, decide whether the child requires special education services. If the PPT requests further evaluation of your child, such evaluation will be conducted at the school district’s expense.

Once the PPT has made its determination, you have the right to request an independent educational evaluation (“IEE”) of your child if you disagree with the PPT’s decision. If, after the IEE, you still disagree with the PPT, you may request a hearing in accordance with State Department of Education regulations. Our attorneys will work with your family to determine the best course of action and to protect your child’s educational rights, while ensuring compliance with applicable federal, state and local regulations.