sarushkaa: February 2011

Friday, February 25, 2011

Do You Have a Complaint About School Personnel or Teachers? Follow Through and File a Complaint

As the focus of my practice is solely to assist and resolve issues for students, I frequently hear complaints about teacher misconduct, school administrator failures, school personnel allegedly targeting a student and other problems involving specific school employees. Although my main goal is to resolve matters for the specific student involved, there is something important which parents can do to help get rid of bad school personnel: file a written personnel complaint with the school and/or school district about the teacher, administrator, or staff member.

More Parents Need to Complain in Writing

If there is a bad apple in a school, resolving a single student's concerns, such as handling the bullying of student Joe Smith by Teacher A, may not result in Teacher A being terminated and/or being punished "enough" to solve the problem long term. This is because school staff may believe that a single complaint means there was just one incident, when in fact there may be more widespread problems. For example, Teacher A may have been targeting dozens of students for 25 years, but a mere 3 families came forward with written complaints in that time. Perhaps 5 others made verbal complaints, but there is no record of the complaints as they were VERBAL so Teacher A continues snug in his position year after year. Had even half of the students targeted by Teacher A filed written complaints, perhaps Teacher A would now be in another profession more appropriate for people of Teacher A's caliber.

It cannot be stressed enough how important it is for parents to follow through with written complaints when a problem with school personnel arises. Written complaints can give a school district the power to investigate and weed out the person involved once and for all. If enough parents complain, perhaps the bad apple will be terminated, demoted, transferred, or will change their tune.

A Verbal Complaint is NOT Enough

Often parents make verbal complaints to schools about personnel who create problems. Maybe the parent talks with a vice principal, or even meets with the principal and the problem is (or is not) solved. However, with oral communication, usually no physical record of the issue, circumstances, or problem remains once it is resolved. Rather, the issue only resides in the memory of those involved and may soon be forgotten. So, parents must follow through and file complaints in writing.

Request the Policies and Complaint Form

It is usually very simple to file a personnel complaint. The parent can contact the school or the school district and ask for the policies and complaint form for personnel complaints. Often this information is on the school or district website as well. Then the parent simply completes the form and submits it per the policy. If the protocol is such that the complaint cannot be filed until the parent e.g. meets with the person involved, the principal, etc. then the parent should document what is going on by sending confirmatory letters of what occurred to the person involved, the principal and the district. They may even try sending an extra copy for the "employees file." Whether it will get filed or chucked is another story.

Districts Want Complaints on Improper Employees (though they may not know it!)

I have actually been called by an attorney who represents districts who I will leave nameless for obvious reasons. He was inquiring whether I had any potential complaints on a teacher that the district was looking to terminate. As the district did not have enough WRITTEN complaints, there was not enough to terminate the teacher. Districts have to be very careful they have legal cause to terminate school personnel, lest they be sued.

Regardless, this is something which, if more parents filed written complaints, bad apples might get thrown out.

One word of caution- be careful what you state in your complaint and be sure it is factually accurate. You don't want to give the teacher, district, etc. cause to come after you for damaging someones reputation with wild stories. Stick with what you know and can prove.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Please see my disclaimer on the bottom of my blog page [http://edlaw4students.blogspot.com/]. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.! This blog may not be reproduced without permission from the author and proper attribution of authorship.

Tuesday, February 22, 2011

IDEA Court Case- Lake Washington v. Office of Superintendent

Today, the Ninth Circuit Court of Appeals ("Court"), the court which has jurisdiction over federal matters in California, Oregon, Washington, and several other states issued a decision in Lake Washington School District v. Office of Superintendent (http://www.ca9.uscourts.gov/datastore/opinions/2011/02/22/09-35472.pdf).

This decision defeated the Lake Washington School District's hope of pursuing a matter under the Individuals with Disabilities Education Act (IDEA) http://www.law.cornell.edu/uscode/uscode20/usc_sec_20_00001400----000-.html, as the Court determined that the District was not granted "standing" (ability to sue) under IDEA. The Court thus shut down Lake Washington's action which attempted to limit postponements of special education hearings (aka due process hearings).

The decision also includes important discussion regarding just WHO has a right of action under IDEA and the scope of such actions. The bottom line according to Judge Sidney Thomas is that the IDEA was written for students and parents and they are the ones who are granted rights under IDEA. The Court also stated that IF a student or parent files a request for a due process hearing, a district must limit its response to the issues raised and cannot bring up new issues.

The decision responded to the Lake Washington School District's attempt to force the state to limit its postponement rights in due process hearings. The matter was filed after a parent's attorney was granted a postponement by a hearing officer based on schedule conflicts.

My favorite part of the case is as follows (in the second to last paragraph of the case) where Judge Thomas states:

"In sum, we join our sister circuits in holding that a

school district or other local educational agency has no

express or implied private right of civil action under the IDEA

to litigate any question aside from the issues raised in the

complaint filed by the parents on behalf of their child. In this

case, the school district lacks statutory standing to challenge

the State of Washington’s compliance with the IDEA’s procedural protections.

The district court correctly dismissed its complaint with prejudice. "

Another victory for students.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Friday, February 18, 2011

Freedom of Expression/Speech Court Case - Morgan Hill, CA

On June 23, 2010, the Rutherford Institute filed a complaint in federal court against Morgan Hill Unified School District (Morgan Hill, CA) for sending students home on Cinco de Mayo (May 5, 2010) who wore shirts with american flags on them. That this happened at all in America is disturbing as the administrators did not seem to comprehend even basic freedom of speech and expression rights granted by the First Amendment of the U.S. Constitution. Students do not lose the entirety of their First Amendment rights just because they attend school.

According to the Morgan Hills Times (newspaper) the Live Oak High School Vice Principal and Principal involved no longer work in the district, but the case is, thankfully, still moving forward. Just yesterday (February 17, 2011), the students defeated most of the motion to dismiss filed by the school district and are proceeding with the case. The case challenges the fact that students were singled out and made to leave the school for wearing patriotic shirts. The school defended its actions based on alleged disruption to the school environment. However, the only disruption was to the students' rights!

The school's actions were blatantly in violation of the students right to free speech and freedom of expression. Although the District has offered to change its policy, the case will proceed for a court determination.

I have practiced in this field (education law) since 1995 and nothing surprises me anymore. Although the law is written to protect students, it MUST be enforced, lest the law remain merely symbolic and/or something to wrap fish in. A law written but unenforced is worthless. As such, I commend the Rutherford Institute for rallying to this cause. I cannot wait to see how this matter turns out, which I predict, will result in a victory for students.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Wednesday, February 16, 2011

Special Education Evaluation Timelines

By Michelle Ball, California Education Attorney for Students since 1995

The "Ottowa Citizen," a Canadian newspaper, recently reported that there may be a 4 year wait to receive a special education assessment in that region, and that teachers are specifically being told not to refer students for a special education evaluation (see link following my signature below). Luckily, in the United States we do not have to wait four, three, or even one year for a student to be evaluated for special education. Assessment is mandated within specific timelines once a referral for special education is made.

Under the United States Code [20 USC section 1414(a)(1)(C]):
"Initial evaluation shall consist of procedures-
(I) to determine whether a child is a child with a disability ... within 60 days of receiving parental consent for the evaluation, or, if the State establishes a timeframe within which the evaluation must be conducted, within such timeframe; and
(II) to determine the educational needs of such child." (emphasis added)

The only exceptions to this rule listed are when the child transfers from one educational agency to another, or the parent "repeatedly fails or refuses to produce the child for the evaluation."

In California, the timelines for special education evaluation are further defined in California Education Code section 56344 which requires an IEP (Individualized Education Program) meeting within 60 days of "receipt of the parents written consent for assessment." Vacation days in excess of 5 days, and/or days between regular school sessions/terms do not count in the 60 day calculation. If a referral for assessment is made less than 30 days prior to the end of a school year, the evaluation must be done and IEP meeting held within 30 days after the new school year starts.

Additionally, the assessment plan must be provided to a parent within 15 days of the date of a referral for special education. Referral can be made by parent submission of a letter requesting evaluation. If a referral for special education evaluation is made within 10 days of the conclusion of the school year, the plan must be provided within 10 days of the start of the next school year. [see California Education Code section 56321]. Vacation days in excess of 5 days and/or between sessions similarly do not count in the timeline calculation for the assessment plan. On receipt of an assessment plan, a parent has 15 days to return the plan to the district.

So, although there are many grumblings about services, special education, etc. in the states, at least we don't have to wait 4 years, let alone 4 months to see students receive a special education evaluation.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

[The Canadian newspaper article is here: http://www.ottawacitizen.com/news/Four+year+wait+special+assessments/4291567/story.html]

Monday, February 14, 2011

When Must a Student Expulsion Be Recommended (But Maybe not Issued)?

I earlier blogged regarding the Big 5 mandatory expulsion categories, for which a student must be both recommended and expelled should allegations be proven correct [http://edlaw4students.blogspot.com/2011/01/when-is-school-expulsion-mandatory-in.html]. THIS blog covers the list of bad acts for which expulsion must be recommended, but for which an expulsion may not HAVE TO be issued. I am not including the "Big 5" covered in the other blog in my list below.

In California, a student MUST be recommended for an expulsion for the following per California Education Code section 48915(a):

"1) Causing serious physical injury to another person, except in self defense;
2) Possession of a knife or other dangerous object of no reasonable use to the pupil.
3) Unlawful possession of any controlled substance...except for the first...ounce of marijuana other than concentrated cannabis.
4) Robbery or extortion.
5) Assault or battery... upon any school employee."

However, a mere recommendation for student expulsion under these sections does NOT mean the student must be expelled. Rather, the expulsion panel and/or school board has discretion to expel or not to expel the student.

There is also some wiggle room even with these types of offenses on the "mandatory" nature of a recommendation. Per the same Education Code section, for any of the above offenses, schools may decide NOT TO RECOMMEND EXPULSION IF the principal or superintendent "finds that expulsion is inappropriate, due to the particular circumstance." This opens a window for attack early on, if a parent can argue that THIS situation, student, etc. is different and and an expulsion recommendation should not be pursued. The principal and/or district may then choose not to put the student up for expulsion depending on the particular circumstances.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Thursday, February 10, 2011

IEP Preparation: Prepare To Always Record Your IEP Meetings!

By Michelle Ball, California Education Attorney for Students since 1995

Individualized Education Program (IEP) meetings (for special education students) can be very confusing. They are made up of a group of individuals with different education levels, credentials, and motivations. Parents also often feel they are outnumbered or ill-prepared. This is especially true if they disagree with the rest of the IEP "team." As such, in their IEP preparation, parents should take the necessary steps to record their IEP meetings.

WHY SHOULD I RECORD?

Although at an IEP meeting there is an official note taker who is an employee of the school district and/or school, WHAT this person notes down and emphasizes is totally up to them. As such, the note taker may miss things, or may not note down things a parent thinks are important.

Also, as parents are usually involved in the IEP discussion, they may be unable to take adequate written notes themselves or may take no notes at all. How then does a parent prove an administrator offered to provide their son a one-on-one aide when it is not in the notes or the IEP document? They have no way to prove this unless the administrator admits they said this, which certainly will not happen if the offer is disputed. It is much better to be able to prove it by playing the recording.

Recording is important even with IEP teams who "get along." This is because if there ever is a dispute, a record will be available. Recording also keeps team members on their toes and influences all in attendance to meet their legal obligations.

CALIFORNIA LAW

Parents have a legal right to record their IEP meetings as long as they provide 24 hour written notice to the district. This is outlined in California Education Code section 56341.1(g)(1) which states:

"[T]he parent or guardian or local educational agency shall have the right to audio record the proceedings of individualized education program team meetings. The parent or guardian or local educational agency shall notify the members of the individualized education program team of his, her, or its intent to audio record a meeting at least 24 hours prior to the meetings."

As can be seen parents, the school and/or school district have the right to record.

PREPARATION TO RECORD THE IEP IS REQUIRED

Parents cannot just walk into an IEP meeting and record. Rather, they have to do some IEP preparation in advance to ensure they are granted this right. Otherwise, they may be denied the right to record. To ensure they can record they must:

1) Provide notice 24 hours in advance to the IEP team and/or person in charge.
2) Bring a recording device.
3) Bring a copy of the notice they provided in case they are questioned

This simple device can keep the IEP team on their toes and can ensure that the rights of the student are met. As such, doing a little IEP preparation by sending advanced notice and bringing a recording device is well worth it.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Tuesday, February 8, 2011

What Is a Manifestation Determination and Why Is It So Important?

When a special education student is placed up for expulsion and/or a change of placement is recommended due to a conduct violation, school districts are mandated to convene a meeting (aka manifestation hearing) within 10 days where they make a "manifestation determination." This manifestation determination is supposed to determine if the conduct in question was related to the child's disability as defined under federal law. The manifestation hearing is a VERY important meeting as it can stop the entire expulsion/transfer process. However, most parents have no idea what is going on when they arrive at a manifestation hearing and/or how significant it is until after it is held.

What is a Manifestation Hearing?

Per volume 20 of the United States Code (USC) section 1415(k)(1)(E), districts must determine prior to moving toward expulsion or a change of placement:

1) "If the conduct in question was caused by, or had a direct and substantial relationship to, the child's disability; or
2) "If the conduct in question was the direct result of the local educational agency's failure to implement the IEP." (Individualized Education Program)

If the answer to either of these questions, as determined by the group at the manifestation hearing, is "yes," the district may not move forward with its recommendation for expulsion and/or change of placement. The student will then be returned to their placement unless the "team" agrees to a different one or certain exceptions apply.

It is thus very important that when parents are notified of any manifestation meeting, they prepare and argue that one or both of these items (#1 and 2 above) applies. They should argue this themselves with their own proof. They should also provide evidence from school records and outside sources that one or both of the above questions is true.

If the manifestation team decision is that the conduct was not a "manifestation" (e.g. neither of the two questions are answered affirmatively) parents can appeal that decision by filing for an expedited due process hearing http://edlaw4students.blogspot.com/2011/01/great-due-process-hearing-reference-for.html. The pending expulsion hearing will then be pushed back until the due process matter runs its course.

As the decision of the manifestation team may stop the expulsion or transfer process completely, it is critical that parents take a stand at this meeting and/or challenge the findings of the team (if they disagree with them).

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Friday, February 4, 2011

Do You Want To File A Discrimination Complaint Against Your School?

Have you ever felt that you or the student in your life were treated differently by a school due to race, ethnicity, gender, disability, sexual orientation, national origin, or age? You could be experiencing illegal discrimination.

For example, has your child been excluded from activities, such as a class trip, based on disability-related conduct (e.g. hyperactivity, seizures, hearing impairment, behavior, etc.)? Have students who were different races been treated differently in the exact same situation for no apparent reason? Have staff made some form of slur against you or your child based on race or national origin? Were you removed from a college program in part due to your age? Believe it or not, improper discriminatory conduct occurs even today.

If you experienced discrimination, or what you believe was discrimination, within the last 180 days, you can file a complaint with the United States Department of Education, Office for Civil Rights (OCR). This is a great agency which, if they accept your complaint, will step in, investigate, and hopefully help to resolve the problem.

Here is where you need to go if you wish to file the complaint yourself: http://www2.ed.gov/about/offices/list/ocr/complaintintro.html

Here is some information from the U.S. Department of Education which is relevant to filing a discrimination complaint:http://www2.ed.gov/about/offices/list/ocr/complaints-how.html and
http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html

If you are beyond 180 days, you may still be able to file, but will have to justify the lateness of the filing to OCR.

More parents might want to consider filing if they cannot get anywhere internally with their district. As you have to show the discrimination in your initial complaint for OCR to step in, oftentimes attorneys may be involved to make the case. You can also file on your own,. There is no charge to file the complaint with OCR.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Thursday, February 3, 2011

What is a Charter School?

Last night (2/2/11), the Sacramento County Board of Education approved an application for 5 new charter schools in the Sacramento area. This will create more choices for our youth to attend school outside the traditional setting. But, what is a CHARTER school? Parents want to know.

Charter schools are authorized in the California Education Code starting with section 47600 http://www.leginfo.ca.gov/cgi-bin/displaycode?section=edc&group=47001-48000&file=47600-47604.5 under the "Charter Schools Act of 1992" which states:

The purpose outlined by the legislature for such schools is to

"[P]rovide opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate independently from the existing school district structure as a method to accomplish all of the following:
(a) Improve pupil learning.
(b) Increase learning opportunities for all pupils, with special emphasis on expanded learning experiences for pupils who are identified as academically low achieving.
(c) Encourage the use of different and innovative teaching methods.
(d) Create new professional opportunities for teachers, including the opportunity to be responsible for the learning program at the schoolsite.
(e) Provide parents and pupils with expanded choices in the types of educational opportunities that are available within the public school system.
(f) Hold the [charter] schools established...accountable for meeting measurable pupil outcomes, and provide the schools with a method to change from rule-based to performance-based accountability systems.
(g) Provide vigorous competition within the public school system to stimulate continual improvements in all public schools." [California Education Code section 47600]

These are great goals. Charter schools ARE basically public schools set up outside the traditional system to give kids a choice in education. Any child can apply to attend a charter school, even if it is located outside their district. They are free to attend.

What charter schools do is give the public schools competition in education. They also can focus on specific curriculum, such as the performing arts (drama, art, photography, etc.), the sciences, and other areas of interest.

In the article in the Sacramento Bee today, written by Diana Lambert and Melody Gutierrez- http://www.sacbee.com/2011/02/03/3373521/charter.html there are some interesting comments from school officials regarding the charter schools which were approved. For example, a Natomas Unified trustee complained that if the charter application was approved, the troubled Natomas District may not be able to balance their budget and a state takeover could be inevitable.

While I understand the public schools have woes, they are not responsible for mismanaged funds of public school districts. Rather, the purpose of charters is to provide varied opportunities for students to learn. As the public schools are failing and are also "one size fits all," a little diversity in opportunity is sorely needed.

Additionally, the public schools are finally getting some competition other than just private schools which many parents cannot afford. Attendance at a charter school is free, as charters are supported by public funds. Let the public schools improve THEIR curriculum, test scores, and service, and the charters will prove no threat to them at all.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball

Wednesday, February 2, 2011

Twelve Things You Can Do To Stop Bullying

The New York Times yesterday (2/1/11) reported on an attack of a Philadelphia boy by 7 youths on the way home from school. http://www.nytimes.com/2011/02/02/us/02bully.html. The victim was beaten by a group and then left hanging from a high fence. Prior to that the boy had been kicked, dragged, punched, and placed upside down in a tree according to the author of the article, John Hurdle. Don't let this happen to your child.

I would suspect this was not the first situation involving these boys. For example, I bet:
1) There was a history of targeting the victim prior to this incident at school.
2) The school knew about the targeting and/or they knew about other incidents involving the attackers.
3) The school did nothing and/or did not do enough.
4) The parents did not ask the right questions of their son about what was going on at school, and/or they did not jump all over the situation to get the school to act.

FYI- never ever presume the schools ARE doing their jobs adequately. You must stay involved. Parents ALWAYS need to know what is going on to ensure the schools are doing what they are supposed to do. Kids usually will not report issues to school staff on their own and feel they have no power. If school officials don't notice something is going on, parents must step in. I have heard too many horror stories to believe otherwise.

Schools are under an obligation to take action when they know bullying or targeting is occurring. They may also punish the students involved (see California Education Code sections 48900(r) and 48900.4). However, I get calls weekly from parents whose kids are being targeted while the school ignores a known situation. Often the parents have verbally told the school, but the school has done nothing.

Here are my best suggestions of what to do to get action from the school and stop the bullying:
1) Talk to your kids every single day about what is going on at school. Really get into problems they are having and who the problems are with.
2) Go observe your children at school. Get advanced permission from the school. Then, sit and watch what is going on with your child from a distance.
3) If anything comes up in your discussions and/or observation involving repetitive taunting, pushing, etc. note this down. Keep a daily journal of what is going, where it happens, and who is involved.
4) If things are bad, and/or physical at all, send a letter to the school regarding what is going on. Ask for a meeting and action by the school.
5) Meet with the powers that be and develop a plan to stop the bullying. Bring a list of items you WANT put in place such as a shadow to follow your child, a meeting with the other kids' parents, daily email, etc. This list will be unique to each student, depending on the situation.
6) If they ignore you, send your letter to the Superintendent.
7) If things continue to occur, send DAILY LETTERS OUTLINING WHAT IS GOING ON. Paper trails are great for making people act.
8) You can also file a complaint in writing with the District, or could even go to your local grand jury to file a complaint if you are getting nowhere.
10) Pick up your child or walk them to/from school if possible.
11) Protect your kids. If the school and district are non-responsive, you must protect your child as a first action while you resolve the problems. This may mean transfer to another school, independent study, your supervision at school as needed, etc. Their safety is paramount. You do not want to have your son or daughter end up like the boy in Philadelphia who was beaten by a group of kids and left hanging from a fence.
12) Attorney involvement at any point can also help.

The school will control what they do in response to the bullying, but you can influence them by providing a list of what you think will solve the problem.

Don't neglect this. Parents must take control to the degree they can, or their child may be left hanging beaten from a fence or worse.

Best,

Michelle Ball
Education Law Attorney
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Phone: 916-444-9064
Fax: 916-444-1209
Website: http://www.edlaw4students.com/

Blog: http://edlaw4students.blogspot.com/

Twitter: http://twitter.com/michelleaball