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Education Alerts

NAVIGATING CONTRACTS WITH APPROVED PRIVATE SPECIAL EDUCATION SCHOOLS

In recent months, some private approved special education schools have insisted that school districts utilize the private school’s monitoring contract or agree to an addendum to the school district’s monitoring contracts. Some private schools have suggested problematic terms, such as:

Education Alert

On May 6, 2020, the United States Department of Education (“DOE”) issued final regulations for Title IX of the Education Amendments of 1972 (“Title IX”). Title IX prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. The new regulations go into effect on August 14, 2020, so school districts are encouraged to review their policies and procedures and provide staff training on these new regulations as soon as possible. The final regulations list specific elements that must be included in any policy, such as range of disciplinary actions, standards of evidence, and procedures.

Third COVID-19 Municipal Relief Law Part II:

On June 5, 2020, “An Act Relative to Municipal Governance During the COVID-19 Emergency” was signed into law. This bill is the third law passed in response to COVID-19, which largely targets the challenges faced by municipalities due to the ongoing pandemic. Part I of this client alert located here addressed the legislation’s provisions regarding municipal elections and town meetings. This client alert focuses on the remaining provisions of the legislation, including municipal finance provisions, school vendor contracts, and educators’ licenses.

U.S. DEPARTMENT OF EDUCATION ISSUES TITLE IX REGULATIONS

On May 6, 2020, the United States Department of Education (“DOE”) issued final regulations for Title IX of the Education Amendments of 1972 (“Title IX”). Title IX prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. The new regulations go into effect on August 14, 2020, so school districts are encouraged to review their policies and procedures and provide staff training on these new regulations as soon as possible. The final regulations list specific elements that must be included in any policy, such as range of disciplinary actions, standards of evidence, and procedures.

NEGOTIATING TIMELINES: FUNCTIONING AT THE INTERSECTION OF IDEA PRINCIPLES, PARENT INTERESTS, AND FAPE

On May 1, 2020, DESE held a special education leadership meeting led by Russell Johnston to discuss the April 27, 2020 Department of Education (“DOE”) recommendations to Congress (these recommendations are detailed in a separate client alert). Many stakeholders, including DESE, were surprised to learn that Secretary DeVos did not recommend that Congress amend IDEA’s timelines during this period of school closures. DESE further advised districts during the call that remote learning days count as “school working days” for purposes of the IDEA. Mr. Johnston confirmed that DESE’s prior proposal that school districts act in good faith and do their best to comply with timelines to the extent possible is now rendered moot by DOE’s recommendations.

US DEPARTMENT OF EDUCATION SUBMITS IDEA AND 504 WAIVER RECOMMENDATIONS TO CONGRESS

On April 27, 2020, the United States Department of Education (“DOE”) submitted recommendations to Congress regarding provisions of the law that it believes that states should have the authority to waive.

Laws addressed in the report include the Carl D. Perkins Career and Technical Education Act of 2006, the Adult Education and Family Literacy Act, the Elementary and Secondary Education Act of 1965, the IDEA, and Section 504 of the Rehabilitation Act.

GOVERNOR BAKER ISSUES EXECUTIVE ORDER TO IMMEDIATELY ALLOW EXPANDED REMOTE PARTICIPATION AND “ALTERNATIVE ACCESS” TO ALL PUBLIC MEETINGS

On March 12, 2020, as part of his authority under the State of Emergency declaration, and in response to multiple recommendations to keep distance between individuals in order to protect public health due to the coronavirus (“COVID-19”) pandemic, Governor Baker issued an Executive Order (”Order”) suspending certain provisions of the Open Meeting Law, to allow expanded remote participation and alternative access to all public meetings. The Order provides swift and much needed clarification for select boards, school committees and all other “public bodies” subject to the Open Meeting Law.

PANDEMIC: LESSONS FOR SCHOOLS ABOUT THE DANGERS OF THE CORONAVIRUS

On February 1, 2020, a university student from Boston became the eighth person in the United States to be diagnosed with the coronavirus, and the first on the East Coast. This student had recently returned from Wuhan, China, the epicenter of the pandemic. Since then, scarcely a day has passed without additional coverage of the coronavirus, which has been declared a global public health emergency.

LEGISLATURE PASSES LANDMARK SCHOOL FUNDING LEGISLATION

On November 20, 2019, the Massachusetts Legislature voted to approve the Student Opportunity Act (“the Act”). The Governor has ten days to respond to the Act. The Act requires the Commissioner of the Department of Education (“DESE”) to establish statewide targets for addressing persistent disparities in achievement among student subgroups, including in subject matter and relevant grade level. It further requires each superintendent, in consultation with the school committee, to establish local targets, consistent with the targets from DESE.

Natick First Circuit Success

FIRST CIRCUIT RULES IN FAVOR OF NATICK PUBLIC SCHOOLS’ ACCESS PROGRAM On May 22, 2019, the First Circuit Court of Appeals, upheld the determination of the Bureau of Special Education Appeals (“BSEA”) and the District Court that the Natick Public Schools’ (“District”...

Education Alerts Archives

CRA Proceedings: When Does a Child “Willfully” Fail to Attend School?

Earlier this year, the Massachusetts Supreme Judicial Court clarified when a child failing to attend school qualifies as a “Child Requiring Assistance” under the truancy provisions of Massachusetts General Laws Chapter 119, sections 21 and 39E-39I. The underlying case, Millis Public Schools v. M.P., et al., Docket No. SJC-12384 (2018), involved a fifteen year old girl, M.P., who continuously failed to attend school due to a combination of physical and mental disabilities,
including a severe bladder condition and autism. After M.P. was absent from school for approximately two months, the Millis Public Schools (Millis) filed a CRA Petition alleging that M.P. was habitually truant, which is a category under the CRA law defined as applying to “a school-aged child, not excused from attendance under the lawful and reasonable regulations of such child’s school, who willfully fails to attend school for more than [eight] school days in a quarter.”

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SJC Holds Public School Districts are Not Liable in Tort For Negligence Relating to Bullying

On February 27, 2018, the SJC held in Cormier, et al. v. City of Lynn, et al., SJC-12323 (2018), that defendants the City of Lynn, the Lynn Public Schools, and several public employees were not liable under the Massachusetts Tort Claims Act, G. L. c. 258, for claims arising from one public elementary school student being pushed down the stairs by another, resulting in his permanent paralysis. The student’s parents argued that the school district was negligent because staff had been
informed about the bullying on multiple occasions but did nothing to stop it, eventually resulting in their son’s injuries. They also claimed that the school district had failed to implement its own anti-bullying policies.

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DESE Clarifies Unresolved Issues for Foster Care Students

On January 18, 2018, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued guidance which clarifies the obligations of school districts for foster care students under the Every Student Succeeds Act (“ESSA”). The guidance can be found here: http://www.doe.mass.edu/news/news.aspx?id=24765[On%20January 18, 2018, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued guidance which clarifies the
obligations of school districts for foster care students under the Every Student Succeeds Act (“ESSA”). The guidance can be found here: http:/www.doe.mass.edu/news/news.aspx?id=24765. The guidance generally places significant burdens on school districts, although it did provide some helpful clarifications.]. The guidance generally places significant burdens on school districts, although it did provide some helpful clarifications.

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Are Surveillance Videos Student/Education Records?

With the proliferation of surveillance cameras in schools and on school buses, video footage is increasingly being used by school districts in support of investigations into student disciplinary matters. In that context, school districts occasionally receive requests for a copy of surveillance tapes. According to the Family Policy Compliance Office (“FPCO”), which has jurisdiction over the Family Education Rights Privacy Act (“FERPA”), surveillance tapes are not
typically education records because they record an entire scene and are not intended to focus on any particular student. As a result, they are generally not protected from disclosure as student records. Depending on the circumstances, they may be protected from disclosure for other reasons under the Public Records Law.

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How to Address Student Walk-Outs on March 14th

On March 14, 2018, at 10 a.m., students across Massachusetts are planning to walk out of school for seventeen minutes to support stricter gun-control laws and mental health resources for troubled peers.

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United States Department of Education’s Office For Civil Rights Changes Guidance For Title IX

On September 22, 2017, the United States Department of Education’s Office for Civil Rights (“OCR”) issued a Dear Colleague Letter and Question and Answer document on complaints of sexual misconduct and violence.

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Students Kneeling During Patriotic Activities

Given professional athletes’ recent protests, kneeling and/or linking arms during the National Anthem, the question has arisen about students’ right to kneel and/or link arms during patriotic activities, such as the National Anthem or pledge of allegiance.

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United States Department Of Education’s Office For Civil Rights Changes Investigation Procedures

On June 8, 2017, Candice Jackson, Acting Assistant Secretary for Civil Rights at the United States Department of Education’s Office for Civil Rights (“OCR”) purportedly sent to the agency’s regional directors a memorandum that changes the practices used to investigate civil rights violations.

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Supreme Court Rules On FAPE Standard — No Changes In Massachusetts Based On Decision

On March 22, 2017, the United States Supreme Court decided the case of Endrew F. v. Douglas County School District, addressing the meaning of a free and appropriate public education (“FAPE”) for the first time since Board of Education of Hendrick Hudson Central School District, Westchester County v. Rowley, 458 U.S. 176 (1982).

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REMINDER: Public School Substance Abuse Prevention Policies Due October 28

As noted in our March 2016 Client Alert, as part of Massachusetts’ Omnibus Substance Abuse Legislation, there were several action items for schools. One of those action items was the requirement that all public schools must file their policies regarding substance use and prevention and educating students about the dangers of substance abuse with the Department of Elementary and Secondary Education (“DESE”). According to Commissioner Mitchell Chester’s September 16,
2016 Weekly Update, by October 28, 2016 all public schools (including charter schools and vocational-technical schools) must accomplish the following:

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Changes to the McKinney-Vento Homeless Assistance Act

On December 10, 2015, President Obama signed into law the Every Student Succeeds Act (“ESSA”), which amended the McKinney-Vento Homeless Assistance Act (“McKinney-Vento”). The amended McKinney-Vento goes into effect on July 1, 2016, with a few exceptions.

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Transgender Students’ Rights

On May 13, 2016, the United States Department of Education’s Office for Civil Rights (“OCR”) and the United States Department of Justice (“DOJ”) issued a Dear Colleague Letter reinforcing their prior interpretation that Title IX of the Education Amendments of 1972 (“Title IX”) and its implementing regulations prohibit discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status. OCR
and the DOJ informed school districts that as a condition of receiving Federal funds, a school district must adhere to the Dear Colleague Letter.

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Ensuring The Accessibility of School District Websites

The United States Department of Education’s Office for Civil Rights (“OCR”) is receiving hundreds of complaints across the country about the accessibility of public schools’ websites for individuals with disabilities. It is, accordingly, investigating school districts’ compliance with applicable Federal laws as they relate to school websites and applicable policies. The Boston OCR office, which has jurisdiction over Massachusetts school districts, has previously
investigated and found compliance concerns with the website of a Massachusetts school district. The Federal District Court in Massachusetts has refused to dismiss a complaint against Harvard University that it violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 by not having an accessible website.

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Impact of Massachusetts’ Omnibus Substance Abuse Legislation On Schools

On March 14, 2016, Governor Charlie Baker signed into law House Bill, No. 4056, “An Act relative to substance use, treatment, education and prevention” (“the Act”). Several sections of the Act, which directly impact public schools, are summarized within.

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DESE Makes Use of Electronic Restraint Reporting Form Optional

In November, 2015, this office issued an Education Client Alert concerning a new, electronic Restraint Reporting Form posted by the Department of Elementary and Secondary Education (“DESE”). On January 5, 2016, the Department updated it guidance and determined that public education program’s use of the Restraint Reporting Form will be optional. However, public education programs will still be required to annually submit all of the information reflected in the Restraint
Reporting Form spreadsheet.

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DESE Mandates Method of Reporting and Submitting Physical Restraint Data

On January 1, 2016, the revised regulations on physical restraint in public education programs, 603 CMR 46.00, will become effective. On November 19, 2015, In anticipation of new requirements under these regulations, the Department of Elementary and Secondary Education (“DESE”) posted a new, electronic Restraint Reporting Form designed to log individual instances of restraint and track program restraint data on a linked spreadsheet.

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DESE Clarifies Responsibility For Virtual School Students In DYS Custody

On November 16, 2015, the Department of Elementary and Secondary Education (DESE), in response to a novel situation from a virtual school, clarified the responsibility of a virtual school, for a student in the custody of the Department of Youth Services (DYS).

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Massachusetts Supreme Judicial Court Vacates Judgment Finding That Settlement Agreements Placing Students In Private Special Education Placements Are Public RecordsNew Education Alerts Page

In a decision in favor of the Weston Public Schools, the Supreme Judicial Court found that settlement agreements between a public school and parents of students who require special education services are exempt from the definition of public records under both the statutory and privacy exemptions to the public records law. This decision vacates a prior decision from the Superior Court.

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DESE Publishes Guidance to Changes in Physical Restraint and Time-Out

On approximately July 31, 2015, the Department of Elementary and Secondary Education (“DESE”) published additional guidance on the implementation of physical restraint and time-out under the revised regulations at 603 CMR 46.00 et seq. Although the revised regulations are not effective until January 1, 2016, DESE has indicated that schools are strongly encouraged to begin working towards implementation in the fall of the 2015-2016 school year.

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Three Murphy, Hesse, Toomey & Lehane Partners Accredited as New England’s 2020 Super Lawyers

  Murphy, Hesse, Toomey & Lehane LLP., would like to congratulate Katherine Hesse, Regina Williams Tate and Mary Ellen Sowyrda for being recognized as New England’s 2020 Super Lawyers. Katherine Hesse is a partner at the firm and was acknowledged for her proficiency in Employment and Labor law. Regina Williams Tate and Mary Ellen Sowyrda are also partners at the firm and were recognized for their expertise in Schools and Education law. It is no surprise to the firm that Read More

Legal Updates

Governor Baker Issues Three New COVID-19 Orders

On Monday, November 2, 2020, Governor Baker issued three new COVID-19 Orders, all of which are effective Friday, November 6, 2020 at 12:01 a.m. COVID-19 Order No. 53 (https://www.mass.gov/doc/covid-19-order-53/download) imposes a Mandatory Night-Time Closing Period for Certain Businesses and Activities from 9:30 p.m. each day until 5:00 a.m. the following day. This Mandatory Closing Period Order prohibits certain businesses, facilities, and activities from admitting customers, patrons, or members of the public to their premises or otherwise offering, providing, or permitting in-person, on-premises services or activities, during the closed period.

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