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Trending Legal Issues: Staying Informed About “Hot Topic”

Legal Issues in Public Schools

Presented By:Marcy Gutierrez

School Psychology Conference 2018

January 18, 2018

Presenter

Marcy GutierrezPartner

Marcy Gutierrez is a Partner in Lozano Smith's Sacramento office, and co-chair of the firm's Special Education Practice Group. She began her career in education as a public school teacher, and has been advising and representing school districts and other education entities for over ten years. Her areas of expertise include special education, student issues, and litigation.

Ms. Gutierrez has effectively represented school districts in many venues, including cases successfully litigated at the administrative agency level as well as in the federal courts. In addition to special education, she also advises and represents school districts and other education entities with regard to student discipline, public records requests, and the broad spectrum of anti-discrimination and anti-harassment requirements that apply to public education agencies.

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Objectives

• Overview current case law related to FAPE and assessment obligations of school districts• Overview the policy and law related to

marijuana in the school setting• Discussion of recent guidance related to

service animals and schools• Highlight current policy and law on

transgender issues on the school campus

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Topics

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Endrew F. & Timothy O.

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Free Appropriate Public Education (FAPE)

• Must provide FAPE in the Least Restrictive Environment

• Rowley: must provide “a basic floor of opportunity”

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“Appropriate:” Educational Benefit

Endrew F. (2016) U.S. Supreme Court Decision

• IEP should allow a student to advance appropriately toward educational goals.

• IEP should be calculated to achieve advancement from grade to grade, or, if not reasonable, IEP should be “appropriately ambitious” in light of student’s circumstances.

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Harmonizing Endrew F. and Rowley

• Rowley provides the upper limit: no need to maximize benefit.• Endrew F. provides the lower limit: at least meaningful progress.

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Assessments: Timothy O. v. Paso Robles USD

• Facts– Student receiving speech and OT from Regional Center– Parents requested District assessment– Unsuccessful in administering standardized assessments due to

“compliance” issues– Based on observation team decided not to assess for autism

• Issue– Whether the district failed to conduct autism and behavioral

assessments

• Held– District failed to assess for all areas of suspected disability,

specifically autism.

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Lesson Learned:

To make sure you assess in ALL areas of suspected disability, discuss Parentconcerns and review any outside information prior to development of an assessment plan.

Assessments: Timothy O. v. Paso Robles USD

Marijuana & Schools

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Getting Blunt on Marijuana & Schools

History

New Developments

Special Education & Marijuana

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Federal Law

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Controlled Substances Act of 1970

• Classified marijuana as a Schedule 1 drug

• States that Schedule 1 drugs have a high potential for abuse and no currently accepted medical use

California Law

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1996: Proposition 215 – Compassionate Use Act

• Decriminalized use of marijuana for medicinal purposes.

• Allows doctors to provide recommendations, but not prescriptions, for medicinal marijuana.

• Does not have a minimum age requirement.

California Law

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2016: Proposition 64 – the Control, Regulate and Tax Adult Use of Marijuana Act

• Enacted by California voters

• Legalized recreational marijuana use and possession in California, for those 21 years of age and older.

• Marijuana still prohibited on school grounds

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Smoke Signals

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January 4, 2018: Trump administration rescinds guidance from Obama era.

“Toke”aways

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Possession and use of marijuana, even for medicinal purposes, is still illegal under federal law.

Even in California, marijuana is not permitted on school grounds or for people under age 21.

Marijuana as a Special Education Accommodation?

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Student v. Sylvan Union School District (OAH Case No. 2014010077).

OAH held that a District acted reasonably when it informed parents that it would not administer medical marijuana to the student at school.

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Service Animals

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Service Animals

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Any dog or miniature horse that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability

28 C.F.R. 35.10428 C.F.R. 35.136

Alboniga v. School Board of Broward County, (Florida, 2015)

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• Student with seizure disorder

• Dog “Stevie”: seizure alert and response dog

• Student’s teachers and paraprofessionals were able to detect seizures

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Alboniga v. School Board of Broward County, (Florida, 2015)

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Court: School must accommodate reasonable request for student’s dog to accompany him at school.

A school district cannot “dictate the type of services a disabled

person needs in contravention of that person's own decisions

regarding his own life and care…it would be like refusing a blind

person access for her service animal because, in the public entity's

view, a cane works fine. That result would be absurd.”

Limits on Service Animals

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No need to accommodate an animal that is:• Out of control• Not housebroken• Direct threat to the health or safety of

others

Emotional support animals: do not qualify as service animal under ADA, but may be a reasonable accommodation

Trauma & Suicide

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Suicide Clusters

• Clovis Unified: Four suicides in four months (August-December 2016)

• The Legislature took notice: the Clovis suicides sparked a policy response.

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Suicide Prevention: AB 2246

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“…because children and teens spend a significant amount of their young lives in school, the personnel who

interact with them on a daily basis are in a prime position to recognize the

warning signs of suicide and make the appropriate referrals for help.”

AB 2246

• LEAs serving grades 7-12 • Policy on pupil suicide

prevention–Develop in consultation–Suicide prevention,

intervention, and postvention–Address “high-risk groups”–Teacher training

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Is Trauma a Disability?

P. P. v. Compton Unified School District (C.D. Cal. 2015) 135 F.Supp.3d 1098

• Physical or mental impairment?• Substantially limits a major life

activity?

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Transgender Students

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Key Terminology

Sex Assigned at Birth

Sexual Orientation

Gender Expression

Gender Identity

Transgender

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California Law

AB 887

AB 1266

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No discrimination based on gender identity

Schools must allow students to use facilities and participate in sex-segregated programs consistent with gender identity

Federal Guidance

2016 Dear Colleague Letter from DOE/DOJ: • Transgender students can use facilities and consistent

with gender identity under Title IX• Must have strong policies to protect transgender

students from harassment

2017 Dear Colleague Letter from DOE/DOJ: • Rescinds previous guidance• Protections again discrimination, bullying, and

harassment still in place

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Practical Steps for Implementation

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CONFIDENTIAL

• Student Privacy • Sharing with Parents• Name and pronoun

use• Student record

changes• Athletics• Site plans

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Objectives

• Overview current case law related to FAPE and assessment obligations of school districts• Overview the policy and law related to

marijuana in the school setting• Discussion of recent guidance related to

service animals and schools• Highlight current policy and law on

transgender issues on the school campus34

Questions

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Disclaimer:These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600.

Copyright © 2018 Lozano Smith All rights reserved.No portion of this work may be copied, distributed, sold or used for any commercial advantage or private gain, nor any derivative work prepared therefrom, nor shall any sub-license be granted, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client. By accepting this product, recipient agrees it shall not use the work except consistent with the terms of this limited license.