Home  >  News & Publications  >  Newsletter October 2000 Education And Special Education Law Report - October 2000 Masschusetts Supreme Judicial Court Finds Teacher Discipline Reports Are Not "Public Records" In a recently issued decision, the Supreme Judicial Court has held that a school superintendent’s disciplinary report concerning a teacher is not a “public record”. The case is Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 731 N.E. 2d 63 (2000). In overturning an Appeals Court decision to the contrary, the Court (“SJC”) found that such a discipline report falls within the “personnel and medical files” exemption of the state’s Public Records Law which is found at Massachusetts General Laws (“M.G.L.”) Chapter 4, §7, Twenty-sixth(c) and at M.G.L. c.66, §10. In 1995, the Wakefield School Superintendent completed a report which summarized his investigation into allegations that a male teacher at the junior high school had sent “inappropriate notes” to a female student. Copies of the notes that the teacher had written were attached to the report. The teacher received the report and was subsequently given a four week suspension. A few weeks later a Wakefield resident forwarded a letter to the Superintendent requesting “any information” in the Superintendent’s or School Committee’s possession regarding the suspension of a teacher at the junior high school. The individual who made the request did not request the name of the teacher or student, but rather the nature of the offense. In response, the Superintendent summarized the matter for the parent, but indicated that he would be seeking clarification from the Supervisor of Public Records within the Secretary of State’s Office as to whether the disciplinary report was a public record. The acting Supervisor of Public Records concluded that the report fell within the definition of a “public record” but that the names and identifying information concerning the student could be redacted. In May 1995, the Wakefield Teachers’ Association filed a complaint in Superior Court seeking, among other things, to prevent the Superintendent from publicly disclosing the report. A Superior Court judge concurred with the findings of the Supervisor of Public Records. The Teachers’ Association appealed the Superior Court decision to the Appeals Court. Initially, a panel of the Appeals Court remanded the matter to the Superior Court judge for his “in camera” inspection of the report at issue. The Superior Court judge reiterated his prior decision. On further appeal, the Teachers’ Association argued, in part, that the information sought fell within the “personnel and medical files” exemption of the public records law and, therefore, should not have to be disclosed. Relying on previous cases interpreting this exemption, the Appeals Court held that the report did not fall within the exemption and must be disclosed. The Court opined that the information did not rise to the level of “intimate details” requiring protection since it concerned a teacher’s performance of his duties with his students. Moreover, as a public employee, the teacher had a diminished expectation of privacy in matters concerning his employment. The Teachers’ Association then sought review by the Supreme Judicial Court. The SJC disagreed with and over-turned the Appeals Court. Of assistance to school districts and other public employers, its decision clarified that a personnel file includes, “at a minimum” an individual employee’s application(s), work evaluations, disciplinary documentation, promotion or demotion information, and termination information. Therefore, information such as the report in this case would be “absolutely” exempt from disclosure. The SJC also distinguished its prior decisions releasing personnel information on the basis that those cases involved information applicable to an entire category of employees, not a specific individual such as was the case in this request. United States Supreme Court Issues Two Decisions Involving Religion And Public School Districts School Policy Allowing For Student Prayer Prior To Varsity Football Games Found Unconstitutional The United States Supreme Court has ruled that a school policy providing for student-led invocations at varsity football games violated the First Amendment of the United States Constitution. In the case of Santa Fe Independent School District v. Doe, et al. -- US --, 120 S.Ct 2266 (2000), the Court upheld the Fifth Circuit Court of Appeals’ decision which found that the policy violated the Establishment Clause of the First Amendment. Prior to 1995, a student selected as the high school student council chaplain offered an invocation over the public address system prior to home varsity football games. A group of students, parents and alumni filed suit challenging the practice. While the suit was pending, the school district adopted a different policy whereby students first elected whether an invocation should be offered at games. A second election was then held to select the person to deliver the invocation. It was this revised policy which the Court reviewed. The Establishment Clause of the First Amendment provides in part that, “Congress shall make no law respecting an establishment of religion”. The Court has interpreted this to mean that government may not coerce anyone to support or participate in religion or its exercise or act in a way that establishes a state religion or religious faith, or tends to do so. The Santa Fe school district had advanced several arguments in defense of its policy. For example, the district had argued that the invocations were private student speech, not public speech, and that nothing was done to coerce students to participate. The Court rejected these and other arguments since the invocation was delivered on school property, at school-sponsored events, over the public address system, under supervision of school faculty, and by a speaker representing the student body. Moreover, the school district had not indicated that the pre-game ceremony was open to other students, which might create a public forum. Additionally, the invocation contained religious content. For all of these reasons, the Fifth Circuit Court of Appeals concluded that the pre-game invocations were unconstitutional. Supreme Court Upholds Federal Statute Which Allows Public Schools To Lend Educational Materials and Equipment To Private Schools In a 6-3 decision the United States Supreme Court found that Chapter 2 of the Education Consolidation and Improvement Act of 1981 (“Chapter 2”) does not violate the First Amendment of the United States Constitution. The case is Mitchell, et al. v. Helms, et al., -- US --, 120 S.Ct. 2530 (2000). Chapter 2 channels federal funds to public school districts to implement programs to assist children in elementary and secondary schools through the purchase and use of instructional materials, such as library services and materials. By its language, the statute authorizes assistance by the public schools to private non-profit schools through the lending of educational materials and equipment, so long as, among other restrictions, the materials and equipment are secular in content and offered on a neutral basis. In this case, an action was initiated in 1985 alleging that Chapter 2 as applied in Jefferson Parish, Louisiana violated the First Amendment. Litigation continued over the next thirteen years. In 1998, the Fifth Circuit Court of Appeals held that relevant Supreme Court decisions issued during this time period had not overruled existing case law. Therefore, the Fifth Circuit found Chapter 2 violated the First Amendment as it applied to Jefferson Parish. Relying primarily on its decision in Agostini v. Felton, 521 U.S. 203 (1997) which upheld Title I assistance to private schools in the face of a similar argument, the Court here found: (1) the government aid did not result in religious indoctrination; (2) the government aid under Chapter 2 did not define its recipients by reference to religion; and, (3) the government aid did not create an excessive entanglement. The Court noted that Chapter 2, by its own language, makes assistance available to both secular and religious participants and requires that the aid be allocated based on school enrollment. N.B. It is unclear how the Supreme Court’s decision in this case will affect Massachusetts school districts. The Massachusetts Constitution contains a specific provision commonly known as the “Anti-Aid Amendment” which prohibits the use or loan of public money or property by the commonwealth or a political subdivision “for the purpose of ... maintaining or aiding ...” any private elementary or secondary school. In addition, the Massachusetts Supreme Judicial Court has previously held that the Anti-Aid Amendment prohibited public schools from lending textbooks to private schools. Bloom v. School Committee of Springfield, 376 Mass. 35, 379 N.E.2d 578 (1978). We will keep you informed of related developments as they occur. Legislative Update New Requirements For Pesticide Use Passed Into Law The Legislature has enacted a law regulating the manner in which a public or private school utilizes and manages pesticides. The Legislature has amended Chapter 132B of the General Laws so that pesticides may not be applied indoors while children are on the property, except for eligible pesticide products listed in the statute. G.L. c.132B, §6F. Also, pesticides may not be applied outdoors while children are on the property. Starting November 1, 2001, only specified pesticide products may be used outdoors. G.L. c.132B, §6G. Schools, among other entities, must notify in writing “employees, pupils or supervised children and their parents or guardians” at least two working days before pesticides are used outdoors at school. Such pesticide use cannot begin prior to the date set forth on the notice and must conclude within 72 hours of the date given. Similar notices must be posted in a common area of the school by the school when outdoor pesticide use will occur. The notices for schools must contain information including the approximate dates of application, the location, the product name and type of pesticide to be used. The notice does not have to be provided when classes are not scheduled for at least five consecutive days after the pesticide use. Only certified or licensed pesticide applicators or an individual under the supervision of such a person may apply pesticides in, or around schools and school grounds, and these individuals will be responsible for supplying officials with the information required for the notices. Schools must maintain on-site a record of the pesticide application for not less than five years. A waiver procedure through the local board of health has been established for cases where other pesticides, not otherwise eligible, need to be used. Pesticides which are part of a supervised training program at a vocational-technical or agricultural school are excluded from the statute. Finally, by November 1, 2001, each school must adopt and implement an “integrated pest management plan” for indoor and outdoor areas. The Massachusetts Department of Food & Agriculture will be required to develop a generic plan for schools to consider. Legislature Loosens the Strictures of Procurement Act As part of so-called “outside sections” of the FY 2001 state budget, the Legislature has made several very significant changes to G.L. chapter 30B, the state’s “Uniform Procurement Act”. Most of these changes will make it easier for governmental bodies, including school departments, to do business. These changes, which became effective on July 1, 2000, are outlined in the chart on the next page. Pertinent Section of G.L. c.30B Old Law New Law Sec 1(b)(9) Exempted Certain Contracts with other governmental units from compliance with Broadens exemption to include disposal ofsupplies in addition to the purchase of 30B bid requirements supplies or services Sec 4 Exempted procurements of $1,000 or less from bid requirements: they can be made by exercising “sound business practices” Ceiling increased from $1,000 to $5,000 Sec 4 Permitted procurements greater than $1,000 but no more than $10,000 to be made by seeking oral or written quotations from three sources that customarily provide such supply or service Now permits procurements greater than $5,000 but no more than $25,000 to be so made Sec 5 & 6 Full fledged bidding required for procurements of greater than $10,000 Full fledged bidding required for procurements greater than $25,000 Sec 7 Allowed an exemption for so-called “sole source procurements” in the amount of $10,000 or less, when the procurement officer, after investigation, determines in writing that there is only one practicable source for the required supply or service Amended to increase this ceiling to $25,000 Sec 13 Provided some limited ability to increase the quantity of supplies or services in a contract Allows an increase in the total contract price of up to 25%, except for contracts for fuel, road salt and other ice and snow supplies where the total contract price (but not the per unit price) can be increased without limit Sec 15 Allowed a procurement officer to dispose of tangible goods and supplies no longer needed and which have a value of $500 or less without resorting to a competitive process Amended to increase this figure to $5,000 Sec 16   Amended to include a new subsection that makes it clear that real estate transactions between governmental bodies are subject only to limited portions of section 16 Special Education Update Board Of Education Issues Emergency Regulations On September 26, 2000, the Massachusetts Board of Education (“Board”) issued emergency special education regulations codifying the changes enacted by the Legislature in the Commonwealth’s FY 2001 budget. The Board is soliciting public comment on these emergency regulations until the close of business November 30, 2000. During this time, the emergency regulations will be in effect and supersede the regulations issued by the Board in April, 2000 that went into effect on September 1, 2000. The Board is expected to finalize the emergency regulations at its December 20, 2000 meeting. If you have any questions or would like a copy of the emergency regulations, please contact us at (617) 479-5000. The following are summaries of some recent decisions by the Massachusetts Bureau of Special Education Appeals. Gateway Regional School District, BSEA # 00-0087 (February 9, 2000) School districts should be wary of BSEA Hearing Officer Sherwood’s recent order placing a ninth grade student in an unapproved New York school, Kildonan, rather than maintaining her placement in the district’s 502.2 inclusionary program. The Hearing Officer concurred with the school that the student had benefitted, and would continue to benefit, from the stimulation and socialization of inclusion in a regular education classroom. However, the hearing officer felt that the student’s reading disability required a more intensive language-based setting, and the Hearing Officer reasoned that after a year the student could return to the inclusionary setting. While the school acknowledged and offered services to address the student’s learning disability in reading and deficits in decoding and encoding, the parties agreed that she had average cognitive abilities, reading comprehension in the 6th to 9th grade level, consistently high grades, and good self-esteem. The student had even received the “Excellent Effort Award” in eighth grade reflecting her high motivation to learn. The Hearing Officer ordered the residential placement at Kildonan despite the fact that the school had no special education certification in New York and the members of the teaching staff were not all special education or even regular education certified. While the hearing officer agreed that, “[c]learly, student does not require a residential program for educational reasons,” she based the residential placement on the fact that the school was an hour and a half driving distance each way from the student’s home. Please note that 603 CMR 28.06(3)(e)(5) of the new Massachusetts regulations, in effect September 1, 2000, provides that “[n]o placements of Massachusetts students may be made in out-of-state programs without approval of the program by the host state or, if the host state does not have an approval process, then the program must provide documentation of reputable accreditation.” Brockton Public Schools, BSEA # 99-2226, (January 12, 2000) BSEA Hearing Officer Sherwood held, contrary to the school’s position, that an eighteen year old special education student did not have sufficient credits for graduation from the Norfolk County Agricultural High School (NCAHS). NCAHS’s graduation requirements include successful completion of three years of Social Studies classes. While the student only passed one of three years of Social Studies, the school sought to waive the graduation requirement with respect to the student on the grounds that the student had: (1) passed two of four quarters of senior Ethics; (2) “taken a depth and variety of academic and vocational classes;” and (3) accumulated the requisite 36 academic credits to graduate. The Hearing Officer held that the school could not unilaterally waive the Social Studies requirement with respect to the student, and, therefore, the student did not have sufficient credits to graduate from NCAHS. According to the hearing officer, “[t]his waiver flies in the face of the intent of the law” because it imposed a waiver on the student without notice to her or to her mother, and because it acted as an unauthorized and inappropriate modification to offset the effects of her disabilities. “Giving her credit for F’s (via the waiver) rather than providing her the special education needed to achieve the credits is an abuse of the special education laws and is inconsistent with the intent of the law.” In light of the student’s severe emotional needs, the hearing officer refused to authorize continued placement in the mainstreamed NCAHS setting and instead ordered a diagnostic placement at the Learning Clinic, a residential therapeutic program in Brooklyn, Connecticut. Natick Public Schools, BSEA # 99-3852 (February 15, 2000); Brockton Public Schools, BSEA #00-2572 (March 17, 2000) In these two recent opinions, BSEA Hearing Officers Belf-Becker and Figueroa held that the BSEA lacks jurisdiction to award either compensatory or punitive monetary damages under the IDEA, Chapter 766, Section 504, or Section 1983. Neither compensatory nor punitive monetary damages are available at all under the IDEA or Chapter 766; however, a parent may seek damages in federal court for violations of Section 504 and 42 U.S.C. §1983. In Natick Public Schools, the student sought monetary damages for Natick’s alleged “flagrant, unlawful, and unjustified breach” of the student’s IEP. Similarly, in Brockton Public Schools, the student sought monetary damages for the school’s alleged knowing violation of the student’s rights. While the Hearing Officers acknowledged that the BSEA does have jurisdiction to order such relief as compensatory educational services and reimbursement of expenditures, it lacks jurisdiction under federal and Massachusetts laws and regulations to award monetary damages. South Hadley Public Schools, BSEA # 00-0041 (March 9, 2000) BSEA Hearing Officer Byrne ruled in favor of the student’s and South Hadley’s joint motion to join a private school, Riverview, and the student’s motion to join the Massachusetts Department of Education (DOE), in a dispute involving alleged violations by Riverview of Section 504 and Chapter 71B. The student, a seventeen year old resident of South Hadley, attended the Riverview School, a special education approved private school, pursuant to a 502.6 IEP. Both the parents and South Hadley approved Riverview’s 1999-2000 IEP, with the addition of a specialized reading program which South Hadley agreed to arrange for and fund at Riverview. The parents allege that during the 1999-2000 school year, Riverview failed to provide the services outlined in the IEP and threatened to expel the student. Both the parents and South Hadley sought intervention from the DOE but received no response. The student then filed a hearing request with the BSEA and sought joinder of Riverview and the DOE. The Hearing Officer agreed to join Riverview, reasoning that where a private school was approved by the Massachusetts Department of Education to provide special education to publicly funded students, and where the student’s attendance was entirely publicly funded, the BSEA had jurisdiction to hear claims against the private school. To find otherwise, “would leave the publicly funded actor free to engage in improper educational programming and unexamined discrimination,” “would leave the student without an otherwise appropriate and available educational program,” and “would leave the [DOE] . . . without a due process mechanism to examine and enforce compliance on the part of all entities providing special education services in the Commonwealth.” The Hearing Officer also agreed to join the DOE in light of a possible remedy resulting from the finding that the DOE failed to timely respond to the student’s complaint. It should be noted, however, that just last year Hearing Officer Oliver denied BSEA jurisdiction over an unapproved private school in the decision Mohawk Trail Regional School District, BSEA # 99-1629, 4 MSER 201. In his decision, Oliver cited a 1994 BSEA decision, Brett v. Landmark School, subsequently upheld on appeal in Superior Court, which likewise denied jurisdiction over a DOE approved school. Attleboro Public Schools, BSEA # 99-1105 (March 23, 2000) The Attleboro Public Schools, represented by our own Regina Tate, successfully persuaded Hearing Officer Erlichman to deny the parents’ request for a private placement and to uphold as appropriate Attleboro’s 1998-1999 educational program despite the student’s poor test scores. The student had severe social, emotional, psychological, and behavioral needs which impeded her ability to learn, in addition to a severe language based learning disability and delays in literacy skills. To address her myriad needs, the student had been placed in a behavior resource room program since September 1996. The 1998-1999 IEP proposed continued placement in this program with non-academic mainstreaming, a behavior management program, small group academics, daily reading tutorials, speech and language therapy, a weekly social skills group, counseling support, and eventual transition into a more academically intensive setting. Although standardized test results did not reflect any progress in literacy skills, the hearing officer determined that the testing was offset by the student’s behavioral progress which “was for her a pivotal educational goal, the achievement of which clearly must be viewed as educational progress.” Since her improved behavior made her “more fully available for learning, . . . Attleboro’s plan thus reflected a well reasoned blend of programming and services uniquely designed to address the complex constellation of needs with which Student presented.” In light of the student’s behavioral gains, the hearing officer upheld as appropriate the 1998-1999 IEP which maintained her placement in the Attleboro program. Legislative Action In The Commonwealth’s FY 2001 Budget Affects Special Education Law In addition to the various amendments made to “Chapter 766” (G.L. c.71B), the Legislature has enacted other changes to the Commonwealth’s special education law. Through the following sections of the Commonwealth’s FY 2001 budget, the Legislature is requiring that certain Massachusetts special education regulations remain in effect notwithstanding the revised special education regulations that went into effect September 1, 2000. Section 416: Requires Board of Education to “continue in effect and enforce” various special education regulations that were in effect 1/1/99: 603 CMR 28.804 (transportation); 28.502.12(g); 28.106, 203, 208, 209 (consent and native language); 28.317.2(f) (parental right to observe program); 28.508; 603 CMR 18.06, 18.07, 18.08 (private schools); This section also provides that 502.4 as used in 603 CMR 28.508 shall mean “separate classroom” and 502.4(i) shall mean “separate facility”. Section 417: Requires Board of Education to “continue in effect and enforce” the regulation requiring IEP TEAM to decide a student’s specific placement. 603 CMR 28.322. Section 418: Requires Board of Education to “continue in effect and enforce” 603 CMR 28.122 (definition of parent); 28.319 (45 school working day time period for development of IEP); 28.320.3 (written evaluations). Section 419: Notwithstanding the provisions of 603 CMR 28.06(3)(e), DOE is to insure that a student placed in an unapproved school “shall have available to him programs which provide services consistent with state standards and federal law...” Section 420: Provides that a “school age child with a disability who requires only a related service or services in order to access the general curriculum shall be protected by the same procedural and substantive rights as any other student with a disability”. This section also requires the Board of Education to amend the regulations “if necessary” to insure that “a school age child with a disability” shall include children who require only related services and also requires that DOE notify school districts of the protections applicable to such children. Finally, the Commissioner of Education has been directed to prepare a report by January 1, 2001, “investigating the utilization of educational collaboratives”.