Capehart Scatchard
When “The Easy Way Out” Isn’t So Easy – Beware of Litigation from Non-Tenured Teachers Who Are Non-Renewed
As a practitioner who has spent most of his legal career as a school board attorney serving as general or labor counsel to boards of education, I address a trend that seems to be on the rise – litigation brought for employment discrimination in the wake of a non-tenured teacher being non-renewed at the conclusion of the teacher’s annual employment contract. In the world of school law, a “non-renewal” is distinct from a “termination,” “discharge,” or “firing” in both the legal and practical sense. The latter tend to occur upon notice, and, in the public school context, almost always with […]
Second Circuit Holds FBAs Are Not “Evaluations” for Purposes of Special Ed Parents’ Independent Evaluation Requests
In a precedential opinion sure to make waves in the special education community, on September 17, 2020, in D.S. v. Trumbull Board of Education, 120 L.R.P. 133 (2d Cir. 2020), the Second Circuit Court of Appeals held that functional behavioral assessments (“FBAs”) of special education students conducted by a public school district are not “evaluations” capable of triggering a parent’s right to request an independent educational evaluation (“IEE”) from the district by an outside evaluator, at public expense. The case puts front and center an issue of first impression that has rarely been addressed in the district courts of the […]
NJDOE Finally Releases Notice Stating Permissibility of Delivering Related Services to Special Education Students through Remote Technology
Editor: Sanmathi (Sanu) Dev, Esq. With most schools in New Jersey closed for nearly two weeks, and all closed since Governor Murphy issued Executive Order 107 on March 21, 2020, school districts across the State have been awaiting further guidance from the New Jersey Department of Education (“NJDOE”) on the important issue of whether NJDOE would permit the provision of related services to special education students through remote technology and distance learning during this period of school closure due to the COVID-19 virus. That much-awaited guidance came yesterday, as Commissioner of Education Dr. Lamont Repollet issued a letter titled “Notice […]
New Statute Requires Schools to Provide Meal Distribution or Meal Vouchers during COVID-19 Closures to Students Eligible for Free & Reduced Price Lunches
Editor: Sanmathi (Sanu) Dev, Esq. On Friday, March 20, 2020, Governor Phil Murphy signed into law a new bill, A-3840, to ensure the continuation of meal distribution to some of New Jersey’s most at-risk students as the State provides support to help local communities work through the COVID-19 pandemic. The statute, now P.L. 2020, c. 6, requires local school districts to provide for meal distribution or a meal voucher program during the period of school closure due to the COVID-19 epidemic for those students who are eligible to receive free and reduced price lunches. The act takes effect immediately. Under […]
N.J. Supreme Court Reverses; Refuses to Allow “Tyranny of Labels” to Compromise Analysis in Tenure Case
Last week, the New Jersey Supreme Court decided a teacher tenure case which it warned served as a cautionary tale that “demonstrates the ability of labels to cloud an analysis.” Melnyk v. Bd. of Educ. of Delsea Reg’l High Sch. Dist., 241 N.J. 31 (2020). The Delsea Regional School District (“District”) had employed the petitioner, Paula Melnyk, as a tenured special education teacher since 1991. In 2002, the district began also employing Melnyk to work evenings as a teacher in its after-hours alternative program, in addition to her position as a special education teacher during the regular school day. Melnyk […]
Court Affirms Dismissal of Parent’s Suit Challenging School’s Communication Plan Setting Reasonable Limits on Father’s Constant, Aggressive E-mails
In the world of special education, parents come in all shapes and sizes in terms of their mode of interaction with the child study team and school personnel. Some parents of special needs children are cordial, while others are friendly and appreciative. Some are matter-of-fact, while others can be much more emotional or animated. Special education parents come with varying degrees of how engaged they are or wish to be in the process of planning and communicating with the school district child study team. For the thousands of child study team members around the country who serve as case managers, […]
USDOE and USHHS Issue Joint Guidance on Application of FERPA and HIPAA to Student Health Records
In December 2019, the U.S. Department of Education (“USDOE”) and U.S. Department of Health and Human Services (“USDHHS”) jointly issued a 26-page document, providing updated guidance on the application of the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g, 34 C.F.R. Part 99, and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), see 45 C.F.R. Parts 160, 162, and 164 (the “HIPAA Rules”), and their application to student health records. The updated guidance provides a basic overview of each of the two federal statutes, as well as 27 frequently asked questions (“FAQs”). The new guidance […]
Third Circuit Clarifies Law on Independent Evaluation Requests & Need for Disagreement with District Eval
Occasionally, school district child study teams (“CSTs”) are faced with special education parents who are resistant to allowing the CST to evaluate their child, yet demand independent evaluations from an outside evaluator at the school district’s expense. In such circumstances, districts were often faced with a dilemma – either acquiesce to such demands, or file for due process themselves and incur legal fees to resist such requests, or deny the parent’s request without filing for due process and risk an Administrative Law Judge (“ALJ”) finding that the district committed a procedural violation. This is because previous decisions of the Office […]
Elimination of Salary Caps for Superintendents of Schools Signed Into Law Effective Immediately
By: Cameron R. Morgan, Esq.Editor: Sanmathi (Sanu) Dev, Esq. On July 19, 2019, Governor Murphy signed new legislation, L. 2019, c. 169 (S-692 / A-3775), which eliminated the cap on maximum base salaries for superintendents of schools which had been in effect since February 2011. At time of the new law’s passage, subject to several potential modifications allowable under law, the salary cap levels had been set by administrative regulations of the Commissioner of Education at $147,794 for schools districts with enrollments of 749 students or less, $169,689 for districts with enrollments of 750 to 2,999, or $191,584 for districts […]
N.J. Supreme Court Rules on Student Records Issue – Part 2
Editor: Sanmathi (Sanu) Dev, Esq. In last week’s article, we discussed the New Jersey Supreme Court’s decision in L.R. v. Camden City Public School District, focusing on the Court’s decision to extend the protections for student records under the New Jersey Pupil Records Act (“NJPRA”) to include redacted records. In its decision in L.R., the Court also affirmed the Appellate Division’s holding that a requestor could gain access to student records if they fell within one of the categories of “authorized” individuals and entities identified in N.J.A.C. 6A:32-7.5(e)(1) through (16). Specifically, the Appellate Division suggested, that the requestors could seek […]
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