Murphy, Hesse, Toomey & Lehane, LLP
Ability. Access. Achievement.
Earlier this year, the Massachusetts Supreme Judicial Court clarified when a child failing to attend school qualifies as a “Child Requiring Assistance” under the truancy provisions of Massachusetts General Laws Chapter 119, sections 21 and 39E-39I. The underlying case, Millis Public Schools v. M.P., et al., Docket No. SJC-12384 (2018), involved a fifteen year old girl, M.P., who continuously failed to attend school due to a combination of physical and mental disabilities, including a severe bladder condition and autism. After M.P. was absent from school for approximately two months, the Millis Public Schools (Millis) filed a CRA Petition alleging that M.P. was habitually truant, which is a category under the CRA law defined as applying to “a school-aged child, not excused from attendance under the lawful and reasonable regulations of such child’s school, who willfully fails to attend school for more than [eight] school days in a quarter.”
On February 27, 2018, the SJC held in Cormier, et al. v. City of Lynn, et al., SJC-12323 (2018), that defendants the City of Lynn, the Lynn Public Schools, and several public employees were not liable under the Massachusetts Tort Claims Act, G. L. c. 258, for claims arising from one public elementary school student being pushed down the stairs by another, resulting in his permanent paralysis. The student’s parents argued that the school district was negligent because staff had been informed about the bullying on multiple occasions but did nothing to stop it, eventually resulting in their son’s injuries. They also claimed that the school district had failed to implement its own anti-bullying policies.
On January 18, 2018, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued guidance which clarifies the obligations of school districts for foster care students under the Every Student Succeeds Act (“ESSA”). The guidance can be found here: http://www.doe.mass.edu/news/news.aspx?id=24765[On%20January 18, 2018, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued guidance which clarifies the obligations of school districts for foster care students under the Every Student Succeeds Act (“ESSA”). The guidance can be found here: http:/www.doe.mass.edu/news/news.aspx?id=24765. The guidance generally places significant burdens on school districts, although it did provide some helpful clarifications.]. The guidance generally places significant burdens on school districts, although it did provide some helpful clarifications.
With the proliferation of surveillance cameras in schools and on school buses, video footage is increasingly being used by school districts in support of investigations into student disciplinary matters. In that context, school districts occasionally receive requests for a copy of surveillance tapes. According to the Family Policy Compliance Office (“FPCO”), which has jurisdiction over the Family Education Rights Privacy Act (“FERPA”), surveillance tapes are not typically education records because they record an entire scene and are not intended to focus on any particular student. As a result, they are generally not protected from disclosure as student records. Depending on the circumstances, they may be protected from disclosure for other reasons under the Public Records Law.
On September 22, 2017, the United States Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter and Question and Answer document on complaints of sexual misconduct and violence.
Given professional athletes’ recent protests, kneeling and/or linking arms during the National Anthem, the question has arisen about students’ right to kneel and/or link arms during patriotic activities, such as the National Anthem or pledge of allegiance.
On June 8, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights at the United States Department of Education’s Office for Civil Rights (“OCR”) purportedly sent to the agency’s regional directors a memorandum that changes the practices used to investigate civil rights violations.
On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District, addressing the meaning of a free and appropriate public education (“FAPE”) for the first time since Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176 (1982).
As noted in our March 2016 Client Alert, as part of Massachusetts’ Omnibus Substance Abuse Legislation, there were several action items for schools. One of those action items was the requirement that all public schools must file their policies regarding substance use and prevention and educating students about the dangers of substance abuse with the Department of Elementary and Secondary Education (“DESE”). According to Commissioner Mitchell Chester’s September 16, 2016 Weekly Update, by October 28, 2016 all public schools (including charter schools and vocational-technical schools) must accomplish the following:
On December 10, 2015, President Obama signed into law the Every Student Succeeds Act (“ESSA”), which amended the McKinney-Vento Homeless Assistance Act (“McKinney-Vento”). The amended McKinney-Vento goes into effect on July 1, 2016, with a few exceptions.
On May 13, 2016, the United States Department of Education’s Office for Civil Rights (“OCR”) and the United States Department of Justice (“DOJ”) issued a Dear Colleague Letter reinforcing their prior interpretation that Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations prohibit discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. OCR and the DOJ informed school districts that as a condition of receiving Federal funds, a school district must adhere to the Dear Colleague Letter.
The United States Department of Education’s Office for Civil Rights (“OCR”) is receiving hundreds of complaints across the country about the accessibility of public schools’ websites for individuals with disabilities. It is, accordingly, investigating school districts’ compliance with applicable Federal laws as they relate to school websites and applicable policies. The Boston OCR office, which has jurisdiction over Massachusetts school districts, has previously investigated and found compliance concerns with the website of a Massachusetts school district. The Federal District Court in Massachusetts has refused to dismiss a complaint against Harvard University that it violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by not having an accessible website.
On March 14, 2016, Governor Charlie Baker signed into law House Bill, No. 4056, “An Act relative to substance use, treatment, education and prevention” (“the Act”). Several sections of the Act, which directly impact public schools, are summarized within.
In November, 2015, this office issued an Education Client Alert concerning a new, electronic Restraint Reporting Form posted by the Department of Elementary and Secondary Education (“DESE”). On January 5, 2016, the Department updated it guidance and determined that public education program’s use of the Restraint Reporting Form will be optional. However, public education programs will still be required to annually submit all of the information reflected in the Restraint Reporting Form spreadsheet.
On January 1, 2016, the revised regulations on physical restraint in public education programs, 603 CMR 46.00, will become effective. On November 19, 2015, In anticipation of new requirements under these regulations, the Department of Elementary and Secondary Education (“DESE”) posted a new, electronic Restraint Reporting Form designed to log individual instances of restraint and track program restraint data on a linked spreadsheet.
On November 16, 2015, the Department of Elementary and Secondary Education (DESE), in response to a novel situation from a virtual school, clarified the responsibility of a virtual school, for a student in the custody of the Department of Youth Services (DYS).
In a decision in favor of the Weston Public Schools, the Supreme Judicial Court found that settlement agreements between a public school and parents of students who require special education services are exempt from the definition of public records under both the statutory and privacy exemptions to the public records law. This decision vacates a prior decision from the Superior Court.
On approximately July 31, 2015, the Department of Elementary and Secondary Education (“DESE”) published additional guidance on the implementation of physical restraint and time-out under the revised regulations at 603 CMR 46.00 et seq. Although the revised regulations are not effective until January 1, 2016, DESE has indicated that schools are strongly encouraged to begin working towards implementation in the fall of the 2015-2016 school year.