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New Law Requires School Districts to Notify Parents of Students’ Special Education Rights Upon Enrollment

By Andrew J. Freedman and Ryan L. Everhart on November 25, Posted in Student Issues

On November 21, , Governor Cuomo signed Chapter 434 of the laws of 2104. School districts are now required, upon a student’s enrollment, to “notify every parent or parent in parental relation of their rights regarding referral and evaluation of their child for the purposes of special education services or programs.” This provision states that the notification may be provided by directing parents to the State Education Department’s website, where a parental guide to special education services may be found. Such notification must also contain the name and contact person of the director of special education, CSE chairperson, or other school administrator with the duty of processing special education referrals. Schools may also provide written notification of these rights.

This law becomes effective on July 1, 2022. What is significant about this provision is that it requires notification to all parents, regardless of whether the student is disabled or not. It also adds another layer to the enrollment process and child find obligations.

Ryan Everhart is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .

Andrew J. Freedman is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .

Governor Amends NYS Human Rights Law to Protect Unpaid Interns From Discriminatory Practices

By Emina Poricanin on August 14, Posted in Personnel

As recently reported in one of our client alerts, the New York State Human Rights Law has been amended to bar employers from engaging in “discriminatory practices” against unpaid interns. The client alert defines “unpaid interns” and enumerates the now-prohibited practices against such individuals.

School districts that engage such interns should review their practices and policies to ensure that protections from discrimination, harassment, and retaliation are extended to unpaid interns. Also, any complaints of “discriminatory practices” by interns or concerning interns should be handled in the same manner as complaints involving employees.

Emina Poricanin is a senior associate in the Labor & Employment Law Practice at Hodgson Russ LLP. You can reach her at .

Public School Advocacy Groups Seek Supreme Court Review of “Stay-Put” Placements in Private Schools

By Ryan L. Everhart on July 31, Posted in Student Issues

One of the most important due process protections afforded to disabled students under the Individuals With Disabilities Education Act (IDEA) is the principle of “stay-put” or “pendency” placement. This provision prohibits school districts from changing a disabled student’s placement while there is a pending litigation. In essence, it requires the student’s placement to remain static until any and all legal challenges are finalized.

The application of a student’s pendency placement is particularly problematic when the student’s placement is at a private school. The federal courts have been split as to whether a school must maintain a disabled student at a private school during the entire time a legal action is pending. The U.S. Courts of Appeals for the Sixth and D.C. Circuits have held that a school’s obligation to maintain a student’s pendency placement ends once the district court decides the contested issue. To the contrary, the Ninth Circuit has ruled that a pendency placement must remain unchanged until final resolution of the dispute.

On February 20, , the U.S. Court of Appeals for the Third Circuit weighed in on this issue. Continue Reading

Back-to-School Signals a Review of Your Concussion Management Protocols

By Jill L. Yonkers on July 29, Posted in Student Issues

As another school year approaches, student-athletes and coaches will soon be involved with pre-season practices to prepare for sports contests. Emphasizing student-athlete safety has never been greater, particularly with respect to head injuries. Because of the potential for serious injuries, districts should take this opportunity to review their policies relating to concussion management and awareness now, before the latest sports season formally begins.

New York State set out the minimum standards for concussion protocols in Education Law § 305(42). This statute has been implemented by the Commissioner of Education in his Regulations, 8 N.Y.C.R.R. § 136.5. The regulations do not prohibit schools from adopting and implementing stricter standards. Districts should consider whether doing so advances their specific objectives.

Schools should note first and foremost that the regulations govern students who are even believed to have sustained a concussion. Continue Reading

Court of Appeals Holds Duty for Student Transportation Is Careful and Prudent

By Jill L. Yonkers on May 29, Posted in Student Issues

Last year, the Fourth Department held a district responsible for a student’s injuries before she boarded a school bus. This was a marked departure from previous case decisions, where the general rule had been that a district did not owe a duty of care to a student until it assumed physical custody of the student. The Court of Appeals decided earlier this month to reverse the Fourth Department’s decision, returning districts to the general physical custody standard once again. A full summary of the facts can be found in our alert from last year.

In Williams v. Weatherstone, the plaintiff proposed four theories of liability in an attempt to trigger a duty owed by the district. First, she argued that the student’s injuries happened during busing, “broadly construed.” Second, she contended that the district created a dangerous situation (inadvertently missing her stop, turning around, and planning to turn around again to pick her up at the right location). Third, she asked the court to extend liability under cases where someone signaled, incorrectly, that crossing a street was safe. Finally, she attempted to trigger a special duty because of the student’s mental limitations and receipt of an IEP. The Court of Appeals rejected each of these liability theories. Continue Reading

Positive Impact of the Recent 3020-a Amendments on a School District’s Ability to Manage Tenured Teachers

By Elizabeth D. McPhail on May 27, Posted in Personnel

Although no one would argue that the process for removal of a tenured teacher pursuant to §3020-a of the Education Law of New York is optimal, the amendments to the this statutory provision that apply to all charges against tenured educators filed on or after April 1, 2012, have had a positive impact on districts’ ability to manage their employees in the two years since the amendments took effect. The revisions appear to have had some of the Board of Regent’s desired effect – to address spiraling costs and the extraordinary length of time to conduct hearings.

Once a teacher has been charged, the law now prohibits the introduction of evidence more than 125 days after the filing of charges unless there are extraordinary circumstances beyond control of the parties set forth in Education Law §3020-a(3)(c)(vii). Continue Reading

Keep Environmental Issues in Mind When Considering a Lease or Sale of Former School Property

By Paul D. Meosky on May 19, Posted in Real Estate & Environment

As school populations shift, it may become necessary for school districts to consider closing and attempting to sell or lease school buildings and grounds. Amid all of the political, financial, and community issues involved with decisions to close and sell or lease former schools or other facilities such as former bus garages, it is easy to overlook environmental procedures and issues that arise.

Many of you are likely familiar with the State Environmental Quality Review Act (SEQRA) process in the context of capital improvements projects. Prior to a school district’s decision to undertake, approve, or fund certain actions such as capital projects, it must assess whether a proposed action will have significant adverse impacts on the environment, broadly defined. Fortunately, a decision to close a school is specifically identified in the New York State Department of Environmental Conservation’s SEQRA regulations as being a “Type II” action, which is not subject to SEQRA review. However, similar to capital projects, the sale or lease of a former school property must be assessed under SEQRA prior to a final decision to sell or lease. This means that SEQRA is completed prior to board approval of the sales contract or lease. Continue Reading

Second Circuit Says Least-Restrictive Environment Requirement Applies to Extended-Year Placements

By Jeffrey B. Same on April 28, Posted in Student Issues

On April 2, , the U.S. Court of Appeals for the Second Circuit held that the least-restrictive environment requirement (LRE) under the Individuals with Disabilities Education Act (IDEA) applies to extended school-year placements (ESY) as well as school-year placements.

In T.M. v. Cornwall Central School District, Nos. 12-4301 (2d Cir. Apr. 2, ), a school district proposed an individualized education program (IEP) that would place T.M., a student with autism, in a 12-month educational program that would include ESY services during the summer. In accordance with LRE, the IEP would place T.M. in mainstream classes integrated with non-disabled students during the school-year. During the summer months, however, the district only offered programs limited to self-contained special education classrooms that did not include non-disabled students. Thus, the parents rejected the proposed IEP and requested a due process hearing. Thereafter, the parents enrolled T.M. in a private mainstream program for the school year and the summer.

Subsequently, the parents sought reimbursement for all expenses incurred from the private placement, alleging that the district failed to offer the least restrictive ESY placement. Continue Reading

Do Referees Face Liability for Their Decisions in Sports Contests?

By Jill L. Yonkers on April 7, Posted in Personnel

The doctrine of assumption of risk is a familiar one in the sports-torts arena. The general rule is that an athlete assumes the normal, commonly appreciated risks associated with playing his or her particular sport. It cannot be used to protect against reckless or intentional conduct or concealed or unreasonably increased risks, however. For example, a pitcher lobbing fastballs from behind a pitching screen nonetheless accepts the risk that his teammate batting could hit a ball right back at him. A wrestler assumes the risk that he could acquire a skin disease from close contact with another wrestler. A softball player in a municipal league assumes the risk of injury from slipping on a concrete pathway adjacent to the outfield when running to catch a ball. While the assumption of risk doctrine is a frequent subject of litigation relating to injured athletes and their attempts to hold the venue owner—which is often a school district—responsible, there is a paucity of cases related to athletes seeking to hold officials governing their match, game, or meet responsible for their injuries.

But you may not be surprised that the assumption of risk doctrine can protect referees as well. Continue Reading

Last Word on “Boobie” Bracelets From the U.S. Supreme Court

By Andrew J. Freedman on March 11, Posted in Student Issues

Yesterday, the U.S. Supreme Court denied a request by the Easton Area School District in Pennsylvania to declare the “I ♥ Boobies” bracelets as lewd and unacceptable in school. The prior ruling from the U.S. Court of Appeals for the Third Circuit in favor of the parents now stands. This means, at least in the Third Circuit, that the “Boobie” bracelets are an acceptable expression of student free speech rights, and schools may not discipline students for wearing them.

The March 10 order denying cert may be found at: Orders in Pending Cases (See top of page 2).

Andrew J. Freedman is a partner in the Education Practice at Hodgson Russ LLP. You can reach him at .