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SAI Annual Conference 2009

SAI Annual Conference 2009. Matt Carver, J.D., Director of Legal Services tel - 515.267.1115 fax - 515.267.1066. Agenda. Legislative Update Other Important Stuff Iowa Cases Federal Cases. Legislative Update. Single Salary System - SF 445

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SAI Annual Conference 2009

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  1. SAI Annual Conference 2009 Matt Carver, J.D., Director of Legal Services tel - 515.267.1115 fax - 515.267.1066

  2. Agenda • Legislative Update • Other Important Stuff • Iowa Cases • Federal Cases

  3. Legislative Update • Single Salary System - SF 445 • Requires school districts and AEAs to include regular wages, Phase II salary per pupil and Teacher Quality Salary into one salary system beginning on July 1, 2010 • Annually, school districts and AEAs shall certify to the DE that the funding received for teacher compensation was spent on salaries for qualified teachers • [See Iowa Code §257.10 for school districts] • [See Iowa Code §257.37A for AEAs] • Beginning July 1, 2009 (this school year), the school board and union shall negotiatedistribution of the teacher salary supplement pursuant to new Iowa Code §284.3A.

  4. Legislative Update • Minor Emancipation - SF 366 • Allows minors, at least 16 years old, to emancipate themselves from their parents • The minor: • Must prove financial and personal self-sufficiency, including proof of employment (assistance from government does not count) • The minor has demonstrated an ability to manage the personal affairs of the minor • The minor has demonstrated an ability and commitment to obtain and maintain his/her education, vocational training, or employment

  5. Legislative Update • Minor Emancipation - SF 366 (cont.) • Some of the conditions and information the court will consider: • Documentation that the minor has been living on the minor’s own for at least three (3) consecutive months • A statement from the minor explaining why the minor’s home is not safe or healthy • A notarized statement that contains written consent to emancipation by the minor's parents or legal guardian. • DON’T EXPECT TO SEE AN INCREASE IN EMANCIPATION

  6. Legislative Update • School District De-accreditation - SF 360 • If the Phase II committee recommends that the school should not remain accredited: • 1) The committee must provide the school district and the director of the DE a report, listing deficiencies and a plan explaining required actions to correct the deficiencies, as well as a deadline date for completion • 2) The school district is provided with an opportunity to respond to the committee’s report • 3) The DE director shall provide the state board with reports from the committee and the school district, as well as the director’s report • 4) The school district may appear before the state board of education • 5) The state board may modify the plan

  7. Legislative Update • School District De-accreditation - SF 360 (cont.) • Adds provisions on the use of various levies by a district that is receiving the assets and liabilities of a district that lost its accreditation • Clarifies the arbitration process, if necessary, on the split of assets and liabilities between school districts • Requires the former school district to: • 1) execute quitclaim deeds • 2) provide a final certified report to the DE • 3) pay for a final audit • The bill clarifies the provisions on changing the boundaries of former directors after removing accreditation from a school district and forming new director districts

  8. Legislative Update • Sex Offender Presence Law - SF 340 • No school policy is required as a result of the new law • A school board is prohibited from passing a resolution or policy that would impose any additional restrictions (e.g., a district may not adopt a policy prohibiting all registrants from being on school grounds) • Students. There was no change to the law (Iowa Code section 282.9) that requires boards of school districts to determine the educational placement of a resident student who is required to be on the SOR

  9. Legislative Update • Sex Offender Presence Law - SF 340 • County sheriffs are still to inform school officials when a student or other person residing in the district is to register • There is still no requirement (nor is there a prohibition) for a school district to disseminate the information available on the Sex Offender Registry Web site to parents and staff • [I would consider adding a link to the SOR on your website]

  10. Legislative Update • Sex Offender Presence Law - SF 340 • Residency. A registrant convicted of an aggravated offense against a minor is still prohibited from residing within 2,000 feet of a school, but the law has been clarified that this does not apply to the following: • 1) Registrants who are minors. • 2) Registrants who had established a residence before July 1, 2002. • 3) Registrants who established a residence before a new school was built near that residence (i.e., registrants do not have to move if a school builds by them).

  11. Legislative Update • Sex Offender Presence Law - SF 340 • Registrants whose conviction involved a sex offense against a minor may not: • 1) Loiter within 300 feet of the school’s boundary, unless an exception applies • 2) Be employed by, a volunteer at, or acting as a contractor at a school (public and nonpublic). • There is no exception for loitering or working, including contractors doing work on a building not populated by students (such as the bus barn or a new attendance center or during the summer).

  12. Legislative Update • Sex Offender Presence Law - SF 340 • Non-students. Registrants whose conviction involved a sex offense against a minor are now prohibited from the following, without written consent of the principal or designee: • 1) Being present on school property • 2) Being in any school vehicle when the vehicle is transporting students, unless enrolled as a student at the school or unless the vehicle is simultaneously made available to the public as a form of public transportation • The law does not address criteria for granting such written permission nor does it set parameters for visits

  13. Legislative Update • Sex Offender Presence Law - SF 340 • Exceptions. A registrant may do the following without written permission: • 1) Be on school property for the purpose of voting for the time reasonably necessary to vote; • 2) Transport a child or ward of the registrant to and from school for the time reasonably necessary for this task. • 3) Live in an established residence within 300 feet of the school.

  14. Legislative Update • DE Paperwork and Reporting Reductions - HF 687 • Districts no longer have to obtain signatures from parents regarding diagnostic reading tests for K-3 students reading below grade level • Eliminates the following reporting requirements by schools and school districts: • Graduation rates, as defined by the National Governor’s Association (the DE will set the definition for reporting purposes) • The # of students pursuing GEDs • The # of graduated students who were not proficient in grade 11 on math, science and reading (11th grader proficiency on ITEDs will still be reported) • The # of students in the prior year who were enrolled as juniors and are within four (4) units of meeting the district’s graduation requirements • Eliminates the requirement that the DE report the maximum tuition rate to school districts (will be on the Web)

  15. Legislative Update • DE Paperwork and Reporting Reductions - HF 687 • Requires school districts to post financial reports from the previous school year on their web sites by January 1, rather than at the beginning of the school year • Districts that do not have web sites must distribute or post written copies of the report at specified locations throughout the school district • Requires school districts to post a report of outstanding levies on their web sites by January 1, rather than at the beginning of the school year • The report must include levy information by rate, amount, duration, and the applicable maximum levy limitations.

  16. Legislative Update • DE Paperwork and Reporting Reductions - HF 687 • Prohibits a school district director, officer, coach or teacher from acting as an agent for textbooks, supplies, sports apparel or equipment in any transaction to that school district and makes the same provisions for the AEA employees within their AEA

  17. Legislative Update • Gender Balance on State Mandated Boards - HF 243 • Requires all boards, commissions, etc., established in Iowa law to be gender balanced, such as: • School Improvement Committee • Teacher Quality Committee • Vocational Education Committee • Law doesn’t require current members to resign to obtain a gender balance • This law does not prohibit an individual whose term expires prior to January 1, 2012, from being reappointed even though the reappointment continues an inequity in gender balance.

  18. Legislative Update • Gender Balance on State Mandated Boards - HF 243 • Governmental body must make a good faith effort to gender balance a committee before appointing an otherwise qualified person • Boards established locally that are not mandated by state law do not have to be gender balanced • Goes into effect January 1, 2012

  19. Legislative Update • Allowable Growth - SF 217 and 218 • SF 217 set a 2 percent allowable growth rate for the categorical funds that were rolled into the foundation formula for FY 2011, beginning July 1, 2010. • Categorical Funds included: • Teacher Quality Basic Salary • Professional Development • Phase II and Class Size & Reading Initiatives • SF 218 establishes the regular allowable growth within the school foundation formula at 2 percent for FY 2011

  20. Healthy Kids Act Reminders • Physical activity requirements are in effect (IAC 281 - 12.5) • 30 minutes per day for elementary • 120 minutes per week for secondary schools • Parents and students may execute physical activity agreements for secondary school students • Students in all age groups may be excused if a parent/guardian files a written statement that the requirements conflict with a student’s religious beliefs

  21. Healthy Kids Act Reminders • Nutrition requirements go into effect on July 1, 2010 (IAC 281 - 58) • The DE changed some of the requirements, such as allowing yogurt and some sports drinks • CPR requirement goes into effect for 2011-12 school year grads • Must either provide certified instruction or accept proof that the student receives certified instruction from a third party • [Students do not have to receive CPR certification]

  22. Family Medical Leave Act • The final regulations implement two important new military family leave entitlements for eligible specified family members:  • (1) Up to 12 weeks of leave for certain qualifying exigencies arising out of a covered military member's active duty status, or notification of an impending call or order to active duty status, in support of a contingency operation, and • (2) Up to 26 weeks of leave in a single 12-month period to care for a covered service member recovering from a serious injury or illness incurred in the line of duty on active duty. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave during the single 12-month period. • SAI Members may take the FREE FMLA course on our website

  23. ADA Amendments Act of 2008 • Went into effect on January 1, 2009 • ADA 2008 instructs that the term “disability” shall be construed in favor of broad coverage of individuals . . . • ADA 2008 adds to the statute a nonexclusive list of major life activities including caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, bending, reading, concentrating, thinking, and communicating and the operation of a major bodily function. • Clarifies that an impairment that is in remission is a disability if it would substantially limit a major life activity when active. • Instructs that a disability determination should be made without reference to mitigation factors (high blood pressure medication, medication that controls seizures or diabetes, assistive technologies, prosthetics, etc.)

  24. ADA Amendments Act of 2008 • Bottom line - • (1) It will now be easier for an impairment to be considered a disability • (2) As such, unless your attorney strongly encourages it, spend less time focusing on whether or not someone is disabled • (3) Schools should focus more on defining the essential duties of a position (have an attorney or ADA expert assist you with drafting new job descriptions and evaluating the provision of reasonable accommodations when working with a disabled employee or applicant • (4) Review existing policies and procedures for compliance with the new law (e.g., interviewing, hiring, accommodations, etc.)

  25. FERPA • 34 CFR § 99.31 Under what conditions is prior consent not required to disclose information? • The FERPA revision adds volunteers to the list of school officials who MAY have a legitimate educational interest to student records • School Districts that use non-employees (INCLUDING VOLUNTEERS) to perform institutional service and functions will have to amend your annual notification of FERPA rights to include these parties as school officials with legitimate educational interests. • An educational agency or institution must use reasonable methods to ensure that school officials obtain access to only those education records in which they have legitimate educational interests. An educational agency or institution that does not use physical or technological access controls must ensure that its administrative policy for controlling access to education records is effective and that it remains in compliance with the legitimate educational interest requirement in paragraph (a)(1)(i)(A) of this section. (34 CFR 99.31)

  26. FERPA • 34 CFR § Under what conditions is prior consent not required to disclose information? (cont.) • REVISION - Disclosures to parents - • Even after FERPA rights have transferred to eligible students (18 years old or emancipated) parents may obtain records in certain situations • For example, the final regulations clarify that under 99.5 and 99.36 an educational agency or institution may disclose information to an eligible student's parents in a health or safety emergency, regardless of whether the student is a dependent for Federal income tax purposes. • A school may disclose information to parents under any circumstances if the eligible student is a dependent for Federal income tax purposes.

  27. FERPA • 34 CFR § 99.36 What conditions apply to disclosure of information in health and safety emergencies? • (1) Schools may include in the education records of a student appropriate information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student or others • (2) Schools may disclose disciplinary action against a student and the related risky conduct of the student to teachers and school officials within the school who have legitimate educational interests in the behavior of the student; or
 • (3) Schools may disclose records containing information about disciplinary action taken against a student to teachers and school officials in other schools who have been determined to have legitimate educational interests in the behavior of the student. [THE STUDENT DOES NOT HAVE TO BE TRANSFERRING TO THE OTHER SCHOOL]

  28. FERPA • 34 CFR § 99.36 What conditions apply to disclosure of information in health and safety emergencies? (cont.) • If a school determines that there is an articulable and significant threat to the health or safety of a student or other individuals, it may disclose information from education records to any person whose knowledge of the information is necessary to protect the health or safety of the student or other individuals. If, based on the information available at the time of the determination, there is aRATIONAL BASIS for the determination, the Department will not substitute its judgment for that of school in evaluating the circumstances and making its determination. • [The final regulations add a requirement that the educational agency or institution record in the student's education records the basis for its decision that a health or safety emergency existed.]

  29. FERPA - Revisions • Definition of “Personally Identifiable Information” - • The new definition adds "biometric record" to the list of personal identifiersthat constitute personally identifiable information [including handwriting] and adds other indirect identifiers, such as date and place of birth and mother's maiden name. • The definition of personally identifiable information in the final regulations includes "other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty."

  30. FERPA - Revisions • Definition of “Personally Identifiable Information” (cont.) - • In addition, the updated definition prevents a school from disclosing information,even in redacted form, that is requested by a party if the school reasonably believes the party knows the identity of the student to whom the record relates.

  31. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • Revisions to 281 Iowa Administrative Code Chapter 103 • Training requirement is only for those staff who can be reasonably expected to be involved in the physical restraint or detention of a child • Exclusions to revised rules includes: • “Reasonable periods of detention, not in excess of school hours or brief periods of before and after school detention, in a seat, classroom or other part of a school facility, unless the detention is accomplished by the use of material restraints applied to the person. …” • This includes most in-school suspensions and seat detentions during recess.

  32. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • “Physical confinement” means: • “. . .the confinement of a student in a time-out room or some other enclosure, whether within or outside the classroom, from which the student’s egress is restricted.” • This would include a staff member physically preventing a student from leaving an area, but would not include verbally telling a student to stay in a room or area.

  33. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • “Physical confinement” requirements: • (1) The area shall be of reasonable dimensions, and shall be free from hazards and dangerous objects or instruments. . . • (2) There shall be sufficient light and adequate ventilation for human habitation. . . • (3) A comfortable temperature shall be maintained, consistent with the facility in which the area is located. . . • (4) Reasonable break periods shall be afforded the student to attend to bodily needs. However, sleep shall not be considered a bodily need.

  34. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • “Physical confinement” requirements: • (5) . . . If a period of confinement and detention exceeds the shorter of 60 minutes or the school’s class period, staff members shall evaluate the continued need for physical confinement, shall obtain the approval from the administrator or designee and comply with the administor’s or designee’s directives. • [Remember - this does not include ISS or detentions that are excluded from these rules] • (6) Adequate and continuous supervision is provided. • [This does not mean continuous eyes on the student, but rather that someone periodically checks on the student and is in a position to hear the student if s/he needs assistance]

  35. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • “Physical confinement” requirements: • (7) Material restraints applied to the person are not used to effect confinement. • (8) Locks should not be used unless they are pressure locks or are automatically unlocked when: the fire alarm is activated; a severe weather system is activated; or, the building loses electricity.

  36. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • Documentation and notification requirements: • (1) Parents and students must be notified at least annually of the provisions of Chapter 103 and of any additional policies and procedures of the school on the topic. • (2) If a student is subjected to physical restraint or physical confinement and detention, the school shall maintain documentation for each such occurrence, which shall (at a minimum) contain the items in the sample documentation form. • [Restraint should be documented and parents must be notified, even if the restraint is authorized under the rules]

  37. RESTRAINT, PHYSICAL CONFINEMENT & DETENTION • Documentation and notification requirements: • (3) The school shall attempt to notify the child’s parent or guardian on the SAME DAY the child is subjected to physical restraint or physical confinement and detention. • (4) The student’s parent or guardian MUST be provided a written copy of the written documentation, which SHALL be postmarked within three SCHOOL DAYS of the occurrence. The student’s parent or guardian may elect, in writing, to receive the communication via electronic mail or facsimile transmission.

  38. Iowa Cases • Martinek v. Belmond-Klemme CSD, 760 N.W.2d 454 (Iowa 2009). • Facts: • School district terminated principal’s 2-year contract mid-term, due to the district’s financial situation (NOT FOR PERFORMANCE) • Principal’s termination occurred under Iowa Code § 279.24

  39. Iowa Cases • Martinek v. Belmond-Klemme CSD, 760 N.W.2d 454 (Iowa 2009). (cont.) • Holding: • The Iowa Supreme Court held that a school district may not terminate an administrator’s contract mid-term under Iowa Code §279.24 • The Court left the issue unsettled as to whether a district may terminate mid-term, due to financial reasons, under Iowa Code §279.25 • Lesson Learned: • (1) Districts may not RIF multi-year contracts mid-term under Iowa Code §279.24 • (2) If you have a multi-year contract, add a provision that protects you from a potential mid-term RIF under Iowa Code §279.25

  40. Iowa Cases • Wallace v. Iowa State Board of Education, 2009 WL 2342461 (Iowa 2009). • Facts: • A group of taxpayers challenged the State Board’s approval of the closure of a number of Des Moines schools • In a 1977 decision (Barker), the State Board recommended procedures for school districts to consider when closing school buildings • In 2003, the State Board adopted administrative rules that incorporated the essence of the Barker procedures (281 IAC 19.2)

  41. Iowa Cases • Wallace v. Iowa State Board of Education, 2009 WL 2342461 (Iowa 2009). • Holding: • The Iowa Supreme Court held that the administrative rules were void, because they exceeded the State Board’s statutory authority • Since the decision to close schools entails discretion, the proper standard of review is whether a school district abused its discretion in closing a building • ABUSE OF DISCRETION STANDARD - Could a reasonable person find substantial evidence to support a school district’s decision?

  42. Iowa Cases • Wallace v. Iowa State Board of Education, 2009 WL 2342461 (Iowa 2009). • Holding: • The court noted the legislature’s grant to school districts of: • “exclusive jurisdiction in all school matters,” Iowa Code § 274.1, • power to “fix the site for each schoolhouse,” § 297.1, • discretion to “determine the number of schools to be taught ... [and] the particular school each child shall attend,” § 279.11, and, • authority to “establish and maintain attendance centers based upon the needs of the school age pupils enrolled in the school district,” § 280.3. • [While districts may no longer be required to follow the Barker procedures, they may still serve as a good guide]

  43. Iowa Cases • Herrig v. Dubuque CSD, 2009 WL 1708821 (Iowa Ct. App. 2009). • Facts: • A boy shot Herrig in the back of the neck with a BB gun as she exited her high school • The boy participated in three fights during the previous month, receiving 3 day suspensions after the latter two • Herrig sued the assistant principal, school district, and school board, claiming that they breached their duty of protecting her from a student who had a history of disciplinary problems

  44. Iowa Cases • Herrig v. Dubuque CSD, 2009 WL 1708821 (Iowa Ct. App. 2009). • What is a school’s duty to protect students? • A school has an “affirmative duty to take all reasonable steps to protect its students.” • “In protecting its children, a school must exercise the same care toward them ‘as a parent of ordinary prudence would observe in comparable circumstances.’”

  45. Iowa Cases • Herrig v. Dubuque CSD, 2009 WL 1708821 (Iowa Ct. App. 2009). • Holding: • The court found that the school district was NOT NEGLIGENT. • The court noted: • (“A school district cannot be held liable for actions that are not foreseeable when reasonable measures of supervision are employed ... and there is adequate consideration being given for the safety and welfare of all students in the school.”).

  46. Federal Cases (U.S. Supreme Court) • Forest Grove CSD v. T.A., 129 S.Ct. 2484 (2009). • Facts: • T.A.’s teachers observed that he had difficulty paying attention in class and getting homework done (K-8) • Middle of 9th grade, mother reported concerns to school • After 9th grade, mother, school psychologist and two other school officials all met and agreed that T.A. did not qualify for special-education services • Nearly two years later, T.A. was privately diagnosed with ADHD and his parents enrolled him in a private academy for special-education students

  47. Federal Cases (U.S. Supreme Court) • Forest Grove CSD v. T.A., 129 S.Ct. 2484 (2009). • Facts: • T.A.’s parents requested a due process hearing regarding T.A.’s eligibility for special-education services • A multidisciplinary team met to discuss whether T.A. satisfied IDEA's disability criteria and concluded that he did not because his ADHD did not have a sufficiently significant adverse impact on his educational performance • Because the School District maintained that respondent was not eligible for special-education services and therefore declined to provide an individualized education program (IEP),T.A.’S parents left him enrolled at the private academy for his senior year.

  48. Federal Cases (U.S. Supreme Court) • Forest Grove CSD v. T.A., 129 S.Ct. 2484 (2009). • Issue: • Whether the IDEA Amendments of 1997 categorically bar reimbursement for private education costs if a child has not previously received special education services

  49. Federal Cases (U.S. Supreme Court) • Forest Grove CSD v. T.A., 129 S.Ct. 2484 (2009). • 20 U.S.C. § 1412(a)(10)(C) • 1997 Amendment language in question • States that IDEA”does not require a local educational agency to pay for the cost of education ... of a child with a disability at a private school or facility if that agency made a free appropriate public education available to the child” and his parents nevertheless elected to place him in a private school. The law then provides that a court or hearing officer may require [a public] agency to reimburse the parents for the cost of [private-school] enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available” and the child has previously received special education and related services under the authority of [the] agency.Finally, the amendment discusses circumstances under which the cost of reimbursement described in clause (ii) may be reduced or denied,” as when a parent fails to give 10 days' notice before removing a child from public school or refuses to make a child available for evaluation, and lists circumstances in which a parent's failure to give notice may or must be excused.

  50. Federal Cases (U.S. Supreme Court) • Forest Grove CSD v. T.A., 129 S.Ct. 2484 (2009). • Holding: • The IDEA authorizes reimbursement for the cost of private special-education services when a school district fails to provide a free appropriate public education (FAPE) and the private school placement is appropriate, regardless of whether the child previously received special education or relate services through the public school

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