9 March 2005 Notes
Brief recap of midterm, more on Texas Family
Code mandatory reporting stuff, a little on sexual harassment title 7 and 9,
intro to special education law
EDLD
5340
9 March 2005
Tonight we will review the midterm
1st scenario
- elementary people will get more of an opportunity during final exam, both of these were high school oriented
-- special education law was not part of the midterm
make sure you analyze
- nature of the message on the tshirt
- we didn't know if tshirts with slogans were typically allowed in this school district and at this high school
- is it enough if something is offensive and repulsive to the professor, even if it does not create a "material and substantial disruption"
- there was a lot of room for us to explore in this scenario, that was the goal
- this response was just worth 8 points
- for this situation there is no one, single correct response
Had a given you a scenario like we looked at last week on the Elmo involving child abuse or suspected child abuse, that would have MUCH LESS "wiggle room" (esp if the scenario says "you have reason to believe")
- then you should cite the Texas Family Code and do what it requires
- in this case, there really would be "a right answer"
in every case, be ready to JUSTIFY why you would take certain actions
In terms of the extracurricular activities aspect, won't be as critical if you did or didn't get into that aspect
- does a teacher have a say in the participation of a student in extracurricular activities
I will not be looking at is it a page and a half, a two pages, etc--- that is not so critical
SCENARIO 2
- student names were A, B and C
Fred will send our feedback to us by the Tuesday after Spring Break, prior to our next Wednesday class
it is rare that people max out the number of available points
For some time now, Fred and his wife have been doing a monthly review (published) on those cases that are granted certiari by the Supreme Court
When a case is "pro se" then that means the person is defending themselves
Jumping now back to the family code / mandatory reporting requirements for child abuse
- note language in Tex Family Code 261.101 language, "if you suspect a child has been OR MAY BE abused or neglected the professional SHALL make a report NOT LATER THAN THE 48TH HOUR" after the time you cross the threshold to believe a child has been or may be abused/neglected
- not every state uses this same language that basically amounts to you having to try and forecast the future
- can't delegate this
- a group of people can make a report together: this is often a good idea
- this applies to attorneys too, they do not have a privilege to not divulge, this duty is extended broadly rather than narrowly
Tax Family Code 261.106
- if you report in good faith, you are immune from civil or criminal liablity that might otherwise be incurred
See Kemerer and Walsh pages 362 - 365
- main cases are Doe v Taylor ISD and Doe v Rains ISD
3 cases from last time, Chapter 9, that we had skipped
- Franklin
- p 464, 466, 469 of A&A
2 civil rights provisions that come into play with sexual harrassment (Title 7 and Title 9)
- there are 4 different ways to find harassment
1- student to student (Davis v Monroe Co)
2- employee to student (Franklin case)
3- employee to employee (no US Supreme Court case on this, but lots of employee related cases, one year there were 4 or 5)
4- student to employee (no case on this, liklihood of this is pretty remote, but it can happen)
Don't ignore the possibility
Title 7 protects employees or those engaged in an employee environment
- when harassment is either the employee or the student as the victim
harrassment can be
1- quid pro quo
2- hostile environment
Title 9 covers education, so students are protected here
Lots of 2 prongs here: male or female, same gender or different gender, title 7 or 9, employment or education
quid pro quo can be student to student
Under Title 9 in Educational context / students
- hostile environment frequency is much greater for filed complaints than quid pro quo
Important on Franklin case (teacher to student sexual relationship)
- when this case was filed, there was uncertainty if the student has cause of action to hold the school district responsible for the teacher's action
- in another case that was non-educational, the Supreme Court resolved this unanimously: they CAN be held liable (the district) but they have to be aware that the relationship is going on
-
Gebser v Lago Visa, also a school teacher to student but it was away from school
- 5 to 4 Supreme Court said the school district didn't know, so they couldn't be held liable
- Justice O'Connor, Scalia, Thomas, Rhenquist, Kennedy-- said no liabiity
In Davis v Monroe county (student to student, title 9)
- 5 to 4 Supreme Court decision: Thomas, Scaleia, Rhenquest, Kennedy were dissenting
- said school districts can be liable and SHOULD HAVE KNOWN because of the record (they couldn't say "we didn't know")
justice O'conner was the swing vote in both cases
This plays out by: if you tell someone "you'll just have to deal with this" that could be construed as "deliberate indifference"
- used to be common for administrators or parents to say "that's just boys being boys" should be over because of these cases
After break we'll talk special education....
Now on to Chapter 10
- see cases highlighted for March 2nd class
- with 2 exceptions, these are all US Supreme Court cases
it is hard to capture the importance of special ed law in just a week, we will extend this discussion into our class after Spring Break
Public Law 94142 is same thing as
- since 1990 we have called this IDEA (Individuals with Disabilities Act)
Didn't see lots of special education litigation till late 1970s
There are more things that match up when you look at cases between 1975 and 2005 (30 years of distance) than are different, when you look at special education litigation issues
- there have been 4 or 5 major reauthorizations of special education law, none of these have been entire replacements
- the substance of the law has not changed that much over time
- this body of law is emotional in many ways to people in Congress, it is very costly: it is amazing that it has remained as consistent as it has from its original intent
Administrators are there to provide the framework of procedures, take care of the paperwork, etc.
- these are critical elements to provide every child with the least restrictive environment, and optimal educational opportunities
Start with Rowley case on p499 in 1982
- theme of "free and appropriate public education" is reinforced by this case
- adopts interpretation of "the floor" rather than "the ceiling"
- adequacy of education is a term that comes up here and even now
- term "mainstreaming" (see page 501 in 2nd paragraph of 2nd column)
Start with Mills case on page 487 of A&A
9 March 2005
Tonight we will review the midterm
1st scenario
- elementary people will get more of an opportunity during final exam, both of these were high school oriented
-- special education law was not part of the midterm
make sure you analyze
- nature of the message on the tshirt
- we didn't know if tshirts with slogans were typically allowed in this school district and at this high school
- is it enough if something is offensive and repulsive to the professor, even if it does not create a "material and substantial disruption"
- there was a lot of room for us to explore in this scenario, that was the goal
- this response was just worth 8 points
- for this situation there is no one, single correct response
Had a given you a scenario like we looked at last week on the Elmo involving child abuse or suspected child abuse, that would have MUCH LESS "wiggle room" (esp if the scenario says "you have reason to believe")
- then you should cite the Texas Family Code and do what it requires
- in this case, there really would be "a right answer"
in every case, be ready to JUSTIFY why you would take certain actions
In terms of the extracurricular activities aspect, won't be as critical if you did or didn't get into that aspect
- does a teacher have a say in the participation of a student in extracurricular activities
I will not be looking at is it a page and a half, a two pages, etc--- that is not so critical
SCENARIO 2
- student names were A, B and C
Fred will send our feedback to us by the Tuesday after Spring Break, prior to our next Wednesday class
it is rare that people max out the number of available points
For some time now, Fred and his wife have been doing a monthly review (published) on those cases that are granted certiari by the Supreme Court
When a case is "pro se" then that means the person is defending themselves
Jumping now back to the family code / mandatory reporting requirements for child abuse
- note language in Tex Family Code 261.101 language, "if you suspect a child has been OR MAY BE abused or neglected the professional SHALL make a report NOT LATER THAN THE 48TH HOUR" after the time you cross the threshold to believe a child has been or may be abused/neglected
- not every state uses this same language that basically amounts to you having to try and forecast the future
- can't delegate this
- a group of people can make a report together: this is often a good idea
- this applies to attorneys too, they do not have a privilege to not divulge, this duty is extended broadly rather than narrowly
Tax Family Code 261.106
- if you report in good faith, you are immune from civil or criminal liablity that might otherwise be incurred
See Kemerer and Walsh pages 362 - 365
- main cases are Doe v Taylor ISD and Doe v Rains ISD
3 cases from last time, Chapter 9, that we had skipped
- Franklin
- p 464, 466, 469 of A&A
2 civil rights provisions that come into play with sexual harrassment (Title 7 and Title 9)
- there are 4 different ways to find harassment
1- student to student (Davis v Monroe Co)
2- employee to student (Franklin case)
3- employee to employee (no US Supreme Court case on this, but lots of employee related cases, one year there were 4 or 5)
4- student to employee (no case on this, liklihood of this is pretty remote, but it can happen)
Don't ignore the possibility
Title 7 protects employees or those engaged in an employee environment
- when harassment is either the employee or the student as the victim
harrassment can be
1- quid pro quo
2- hostile environment
Title 9 covers education, so students are protected here
Lots of 2 prongs here: male or female, same gender or different gender, title 7 or 9, employment or education
quid pro quo can be student to student
Under Title 9 in Educational context / students
- hostile environment frequency is much greater for filed complaints than quid pro quo
Important on Franklin case (teacher to student sexual relationship)
- when this case was filed, there was uncertainty if the student has cause of action to hold the school district responsible for the teacher's action
- in another case that was non-educational, the Supreme Court resolved this unanimously: they CAN be held liable (the district) but they have to be aware that the relationship is going on
-
Gebser v Lago Visa, also a school teacher to student but it was away from school
- 5 to 4 Supreme Court said the school district didn't know, so they couldn't be held liable
- Justice O'Connor, Scalia, Thomas, Rhenquist, Kennedy-- said no liabiity
In Davis v Monroe county (student to student, title 9)
- 5 to 4 Supreme Court decision: Thomas, Scaleia, Rhenquest, Kennedy were dissenting
- said school districts can be liable and SHOULD HAVE KNOWN because of the record (they couldn't say "we didn't know")
justice O'conner was the swing vote in both cases
This plays out by: if you tell someone "you'll just have to deal with this" that could be construed as "deliberate indifference"
- used to be common for administrators or parents to say "that's just boys being boys" should be over because of these cases
After break we'll talk special education....
Now on to Chapter 10
- see cases highlighted for March 2nd class
- with 2 exceptions, these are all US Supreme Court cases
it is hard to capture the importance of special ed law in just a week, we will extend this discussion into our class after Spring Break
Public Law 94142 is same thing as
- since 1990 we have called this IDEA (Individuals with Disabilities Act)
Didn't see lots of special education litigation till late 1970s
There are more things that match up when you look at cases between 1975 and 2005 (30 years of distance) than are different, when you look at special education litigation issues
- there have been 4 or 5 major reauthorizations of special education law, none of these have been entire replacements
- the substance of the law has not changed that much over time
- this body of law is emotional in many ways to people in Congress, it is very costly: it is amazing that it has remained as consistent as it has from its original intent
Administrators are there to provide the framework of procedures, take care of the paperwork, etc.
- these are critical elements to provide every child with the least restrictive environment, and optimal educational opportunities
Start with Rowley case on p499 in 1982
- theme of "free and appropriate public education" is reinforced by this case
- adopts interpretation of "the floor" rather than "the ceiling"
- adequacy of education is a term that comes up here and even now
- term "mainstreaming" (see page 501 in 2nd paragraph of 2nd column)
Start with Mills case on page 487 of A&A
Posted: Wed - March 9, 2005 at 11:07 PM |
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Published On: Mar 09, 2005 11:07 PM
Total entries in this category: 9
Published On: Mar 09, 2005 11:07 PM
