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New Federal Guidance on Student Privacy and Restraint/Seclusion

If compliance is one of your New Years resolutions this year, school districts and officials are in luck. Recently, two new guidance resources became available to assist with compliance as to student privacy and restraint and seclusion.

Late in December, 2019, the United Staes Department of Education (DOE) and the Department of Health and Human Services issued a Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to Student Health Records. The 27-page document, structured in question and answer format, addressses common compliance issues with respect to student privacy under both Acts. It explains the distinctions and intersections between the two Acts in the educational setting. Privacy questions commonly arise for educators and, as health services increase in educational institutions to address student needs, it is important for educators and parents to be aware of this new guidance.

Just this week, the DOE Offices of Civil Rights (OCR) and Special Education and Rehabilitative Services (OSERS) partnered to create a video to further educate school districts and officials regarding appropriate restraint and seclusion practices. This was the fulfillment of a promise that the DOE made at the beginning of 2019. At that time, the DOE announced an initiative to reduce the inappropriate use of restraint and seclusion on children with disabilities and ensure compliance with federal law. Though many states now have their own restraint and seclusion regulations, this guidance remains critical to school districts and officials to ensure compliance with federal law. Furthermore, numerous states have no existing regulations or statutes relating to restraint and seclusion and some, such as Ohio here in the Sixth Circuit, have only regulations relating to restraint. To check on your own state’s level of recognition, you can review the summary from the DOE here.

Privacy and restraint and seclusion are both emerging and potentially thorny issues for school districts and officials from a compliance standpoint. As a result, these new guidance resources are welcomed supports for the new year.

Michigan Seclusion Case Demonstrates Fry’s Limits on IDEA Exhaustion

When the Supreme Court issued its decision in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017) two years ago, many experts believed that it would result in an increase in court claims against school districts. This is a reasonable interpretation, since Fry put plaintiffs in school litigation in the drivers seat. Under the holding in Fry, students and parents could, via careful pleading to avoid the IDEA, chart a course to sue in court for damages without first exhausting administrative remedies by seeking a due process hearing. While the ubiquitous “floodgates of litigation” may not yet have fully opened, a new Michigan case shows that, by and large, early assessments of Fry’s impact appear to be correct.

person wearing bandages
The student in Wadley won the right to sue in court for an injured hand but failed to prove school officials caused the injury by violating her rights.

In Wadley v. Hazel Park Community Schools, 2019 U.S.Dist. LEXIS 210377 (E.D. Mich. 2019), the Eastern District of Michigan found that the IDEA exhaustion mandate did not bar a disabled student’s claims. In that case, a student sought damages for alleged violations of her federal constitutional rights under 42 U.S.C. Section 1983 and state law for injuries that occurred while school staff used restraint and seclusion techniques to control her behavior. While the school officials asserted that the child’s claims were barred by the IDEA since she had not first sought a due process hearing, the court disagreed. First, the court reasoned that, although the child was found eligible for an IEP after the incident at issue, she was not served under the IDEA at that time. Second, the court analyzed the complaint and determined that the student had not alleged that she was injured due to a denial of FAPE or violation of the IDEA. As a result, the court held that, under Fry, IDEA due process procedures would not redress the physical injuries (a broken finger and laceration) for which she sought compensation. Therefore, the court held it could not dismiss the suit outright and had to address the merits.

While the student won the right to have her claims decided on the merits, she ultimately did not prevail. The court granted summary judgment on the constitutional and state law tort claims, since the proof showed that the school staff’s behavior did not offend either the 4th or 14th Amendment of the United States Constitution. In particular, the court found that the complaint allegations that (1) the student was placed unsupervised in seclusion for hours at a time; and (2) restraint procedures were used needlessly or in contravention of regulations to be unsubstantiated. Consequently, it granted summary judgment in favor of the school district and its employees.

In short, Wadley shows us that Fry made it easier for disabled students to bring claims for damages directly to court. Getting into court and getting past summary judgment, however, are two different matters. If students choose to sue directly in court, they still must be prepared to prove their allegations or their claims will fail.

Ohio School District Sued for Alleged Unclothed Search of Student and Improper Questioning

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The Supreme Court and the Sixth Circuit require strong justifications for unclothed searches of students.

An Ohio school district south of Cleveland was sued last week in federal court as a result of the search and questioning of a 10-year-old Muslim boy. The Complaint alleges that, a teacher’s aide, teacher and nurse removed the boy, who is of Palestinian heritage, from class and proceeded to question him about his religion, home life, and his love of God and America.

Later in the day, the Complaint asserts that the boy was questioned further due to teacher’s incorrect suspicions of abuse in the home. This resulted in the boy being asked to lift his shirt and lower his pants to permit school officials to view his body. Ultimately, child protective services in Ohio investigated but clear the plaintiff’s parents of abuse. The suit was then filed against the District and its officials, alleging that the search and questioning were wrongful and negligence in the district’s response following the search.

Infringing on a student’s right to religious freedom or engaging in discrimination on the basis of religious are both plainly prohibited by the First Amendment of the United States Constitution and Title VI of the Civil Rights Act of 1964. The Complaint alleges that the questioning of the student, which allegedly included references to his religion, constituted both.

Likewise, the Supreme Court has long held in New Jersey v. T.L.O.that school officials must have reasonable suspicion of a violation of the law or school policy to conduct a search of students and that the search conducted must be reasonable in scope in relation to the matters suspected. As one might imagine, federal courts have been quite skeptical of unclothed searches of students. The Supreme Court in Safford Unified Sch. Dist. No. 1 v. Reddingfound an unclothed search of a female student suspected of possessing ibuprofen tablets in violation of school policy. Subsequently, in Knisley v. Pike County Joint Voc. Sch. Dist., the Sixth Circuit invalidated an unclothed search of a group of students in order to locate a missing credit card. While suspected abuse, in theory, may provide a justification for school officials to conduct a search, the court in the new suit will most certainly be focused on whether the suspicion was strong enough to justify the invasion into the student’s privacy.

Moreover, while claims pursued against public entities are generally far more difficult to pursue than those asserted only against individuals, the Complaint also alleges that the district should be held responsible for the violation of rights for several reasons. First, it alleges that district officials altered records to hide the incident. Second, it alleges that the district failed to remove the student from the officials who conducted the search, despite repeated complaints. Normally, when a plaintiff tries to sue a public entity on a theory of inaction, such as the failure to prevent harm, the high “deliberate indifference” standard applies. This is a difficult standard to satisfy but, if proven, alteration of public records is something for which judges and juries alike have little sympathy. It is, of course, very early in the litigation so it remains to be seen whether the plaintiff will present sufficient proof to show his rights were violated and avoid qualified official immunity.

Under New Law, KY Schools Add “In God We Trust” Motto to Buildings

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Sixth Circuit authority appears to distinguish between the nature of this religious image and the motto “In God We Trust”.

In the public mind, the United States Constitution mandates a “separation” between church and state. As a result, many people espouse ideas that suggest that public schools may not so much as permit discussion of religion on school premises. Most school attorneys know, however, that the reality is much different.

The First Amendment of the United States Constitution does indeed prohibit the “establishment” of a national religion and courts have construed this to mean that government, including state and local government via incorporation under the Fourteenth Amendment, may not entangle itself excessively with religion. Yet, case after case has demonstrated that the line between religion and government is a dashed one at best. Moreover, the First Amendment’s protection of individual rights to expression of religion mean that government cannot excessively interfere with or burden the rights of citizens to engage in religious activity. As a result of this, religion happens in public schools in America; there are just limits on how and when it happens.

A recent example of this is H.B. 46 which the Kentucky General Assembly passed last term. It amends KRS 158.195 to require public schools to post the national motto “In God We Trust” in a prominent location on its elementary and secondary schools. The ACLU of Kentucky opposed the bill, on the belief that it “sent a message that only students who believe in God are welcome in our public schools.” No action has yet been taken to challenge the law in court or prevent its enforcement. This may be because Sixth Circuit precedent suggests that such a challenge would be an uphill battle. In ACLU v. Capitol Square & Advisory Board, 243 F.3d 289 (6th Cir. 2001), the Sixth Circuit rejected a First Amendment challenge to Ohio’s state motto “With God All Things Are Possible”. While this decision does not apply to schools specifically, it certainly suggests that a motto which merely mentions “God” does not necessarily offend the Establishment Clause.

Thus, as it now stands, Kentucky public schools are preparing for the school year by, among other things, adding the motto to their school buildings.

Sixth Circuit Rules IDEA Eligibility Is Necessary to Establish Prevailing Party Status

Attorney fees in IDEA due process cases are often the tail that wags the dog. Since pure money damages are often unavailable in IDEA cases, fee exposure is often the biggest out-of-pocket monetary item of exposure that school districts can face. At the same time, fee-shifting under 42 U.S.C. 1988 is, in many cases, what makes litigating due process hearings on the parents’ side financially viable. Thus, many IDEA due process hearing cases relate, not to questions about substantive and procedural compliance with the IDEA itself, but rather fee liability.

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Attorney fee liability is an important aspect of IDEA due process litigation.

As under other federal civil rights statutes, the right to fee reimbursement hinges on a litigant’s attaining the status of a “prevailing party.” Now, the law in the Sixth Circuit and elsewhere makes it clear that one does not have to win on every issue raised in a suit to earn the right to reimbursement of attorney fees. Rather, a party must only prevail on a significant issue that results in some material benefit.

Notably, under the IDEA, the definition of a prevailing party is restricted to one “who is the parent of a child with a disability[.]” 20 U.S.C. 1415(i)(3)(B)(i)(I). Recently, the Sixth Circuit interpreted this language to hold that eligibility is required to establish “prevailing party” status in IDEA cases. In Burton v. Cleveland Heights University Board of Education, 119 LRP 25157 (6th Cir. 2019) the Court rejected a student’s fee petition since IDEA eligibility, and thus entitlement to tangible relief, had not been established. In that case, the parent filed a due process action alleging, among other things, that a student qualified as a “child with a disability” and was entitled to relief for an alleged denial of FAPE. After a full hearing, the state-level hearing officer ruled that the child had a qualifying disability, but was not in fact eligible under the IDEA for relief or services because the proof was insufficient to show a need for specially designed instruction.

The parents then appealed to federal court and sought fees. They argued that the finding that the child’s disability fell into a protected category under the IDEA was sufficient to qualify them as prevailing parties and fee reimbursement. Furthermore, they argued that the hearing officer ordered the school district to evaluate the student to determine her eligibility under the IDEA. Yet, both the Northern District of Ohio and, later, the Sixth Circuit rejected this argument. Although the parents arguably had succeeded on certain elements of their claims, the Court held that the record was insufficient to demonstrate the student’s eligibility under the IDEA. Citing the plain language of the statute and the decisions of several other Circuit Courts, the Court held that edibility was required to attain prevailing party status for purposes of recovering attorney fees.

Eligibility is often a central issue in IDEA cases. In such cases, the Burton decision could make it harder for parents to establish a right to fee reimbursement even when procedural violations occur. In other words, this decision is a good reminder for parents, school districts, and attorneys in the Sixth Circuit to never forget the fundamentals when litigating IDEA cases.