Legal & Ethical IssuesLegal & Ethical IssuesEDUC 2120EDUC 2120

Legal Protections for Diverse Legal Protections for Diverse Populations of LearnersPopulations of Learners

Luke M. Cornelius, Ph.D., J.D.Luke M. Cornelius, Ph.D., J.D.Associate Professor-Educational LeadershipAssociate Professor-Educational Leadership

1414thth Amendment Amendment

No State shall make or enforce any No State shall make or enforce any law which shall abridge the privileges law which shall abridge the privileges or immunities of citizens of the or immunities of citizens of the United States; nor shall any State United States; nor shall any State deprive any person of life, liberty, or deprive any person of life, liberty, or property, without due process of law; property, without due process of law; nor deny to any person within its nor deny to any person within its jurisdiction the equal protection of jurisdiction the equal protection of the laws. the laws.

Brown v. Bd. Of Educ.Brown v. Bd. Of Educ. (1954) (1954)

We conclude that, in the field of public We conclude that, in the field of public education, the doctrine of "separate but education, the doctrine of "separate but equal" has no place. Separate educational equal" has no place. Separate educational facilities are inherently unequal. Therefore, facilities are inherently unequal. Therefore, we hold that the plaintiffs and others we hold that the plaintiffs and others similarly situated for whom the actions similarly situated for whom the actions have been brought are, by reason of the have been brought are, by reason of the segregation complained of, deprived of the segregation complained of, deprived of the equal protection of the laws guaranteed by equal protection of the laws guaranteed by the Fourteenth Amendment. the Fourteenth Amendment.

Equal ProtectionEqual Protection

Schools may not Schools may not discriminate on the discriminate on the basis of:basis of: RaceRace GenderGender ReligionReligion National OriginNational Origin DisabilityDisability Sexual OrientationSexual Orientation

Equal Protection LawsEqual Protection Laws

The Civil Rights Act of The Civil Rights Act of 1964 (Race, Religion, 1964 (Race, Religion, & National Origin)& National Origin)

Title IX of the Title IX of the Education Education Amendments (Gender, Amendments (Gender, Orientation)Orientation)

McKinney-Vento Act McKinney-Vento Act (Homeless)(Homeless)

1414thth Amendment Amendment (illegal aliens)(illegal aliens)

Individuals with Individuals with Disabilities Education Disabilities Education Act (IDEA-Disability & Act (IDEA-Disability & Gifted))Gifted))

Section 504 of the Section 504 of the Rehabilitation Act Rehabilitation Act (Disability)(Disability)

Title III (ESL/ESOL/ELL)Title III (ESL/ESOL/ELL) State Law (Bullying)State Law (Bullying) Equal Access Act Equal Access Act

(Religion & Orientation)(Religion & Orientation)

Bullying, Abuse, and HarassmentBullying, Abuse, and Harassment

Bullying, Abuse, and Harassment Bullying, Abuse, and Harassment can lead to:can lead to: Lowered self-esteem and student Lowered self-esteem and student

achievementachievement Physical and mental health problemsPhysical and mental health problems Attendance problemsAttendance problems School violenceSchool violence

A child who does not feel safe at school A child who does not feel safe at school cannot learn!cannot learn!

Bullying, Abuse, and HarassmentBullying, Abuse, and Harassment

Under Georgia Code (O.C.G.A. § 20-2-Under Georgia Code (O.C.G.A. § 20-2-751.4 ), schools must develop a plan 751.4 ), schools must develop a plan to prevent bullying in all grades 6-12.to prevent bullying in all grades 6-12.

Bullying is defined under state law as:Bullying is defined under state law as: Any willful attempt to threat or inflict Any willful attempt to threat or inflict

injury on another person when injury on another person when accompanied by an apparent ability to do accompanied by an apparent ability to do so;so;

Any intentional display of force as would Any intentional display of force as would give the victim to fear or expect give the victim to fear or expect immediate bodily harm.immediate bodily harm.

Bullying and AbuseBullying and Abuse

Common types of bullying and abuse:Common types of bullying and abuse:• Physical and mental attacks or intimidationPhysical and mental attacks or intimidation• TeasingTeasing• Practical JokesPractical Jokes• Hazing, especially in clubs, teams, and Hazing, especially in clubs, teams, and

bandband• Jokes or teasing based upon perceived or Jokes or teasing based upon perceived or

real disabilities or personal characteristicsreal disabilities or personal characteristics• Cyber-Bullying and Cyber-Stalking are Cyber-Bullying and Cyber-Stalking are

becoming increasingly common!becoming increasingly common!

Gender & OrientationGender & Orientation

Students protected Students protected under Title IXunder Title IX

Students are entitled Students are entitled to equal educational to equal educational opportunities opportunities regardless of Genderregardless of Gender

Students also Students also entitled to an entitled to an education free of education free of gender-based gender-based harassmentharassment

Sexual HarassmentSexual Harassment

Can occur in all grade and age levels Can occur in all grade and age levels and among any combination of gendersand among any combination of genders

Educators can be held liable not only Educators can be held liable not only for their actions but for their knowledge for their actions but for their knowledge and failure to deal with the actions of and failure to deal with the actions of othersothers

Sexual harassment may be the single Sexual harassment may be the single greatest problem in Georgia’s schools greatest problem in Georgia’s schools todaytoday

Sexual HarassmentSexual Harassment

What is sexual harassment?What is sexual harassment? It may be:It may be:

Jokes, teasing, and innuendoJokes, teasing, and innuendo Comments on a persons physical Comments on a persons physical

appearance and attractivenessappearance and attractiveness Inappropriate or unwelcome sexual Inappropriate or unwelcome sexual

advancesadvances Inappropriate or unwelcome touching or Inappropriate or unwelcome touching or

physical contactphysical contact

Sexual HarassmentSexual Harassment

(Continued):(Continued): Hazing of a sexual or sexually Hazing of a sexual or sexually

humiliating naturehumiliating nature Sexual assaultSexual assault Derogatory comments or actions Derogatory comments or actions

motivated by the victim’s actual motivated by the victim’s actual oror perceived sexual orientationperceived sexual orientation

Title IXTitle IX

Entitles all children to equal educational Entitles all children to equal educational opportunities regardless of genderopportunities regardless of gender Includes curriculum, extracurriculars, and Includes curriculum, extracurriculars, and

athleticsathletics Court rulings have made clear this law Court rulings have made clear this law

applies to sexual orientation as well as applies to sexual orientation as well as gendergender May even apply to dress and grooming standardsMay even apply to dress and grooming standards

Also guarantees equal education for teen Also guarantees equal education for teen parents and pregnant studentsparents and pregnant students

Homeless and Alien ChildrenHomeless and Alien Children

The McKinney-Vento Act insures the The McKinney-Vento Act insures the right of homeless students to full right of homeless students to full educational programs and serviceseducational programs and services Students must be allowed to continue in Students must be allowed to continue in

previous school of residence or in any previous school of residence or in any zone claimed as residencezone claimed as residence

The Supreme Court has held (The Supreme Court has held (Plyler v. Plyler v. DoeDoe) that the 14) that the 14thth Amendment Amendment guarantees full equal education access guarantees full equal education access to illegal and undocumented aliensto illegal and undocumented aliens

Title III & ESLTitle III & ESL

Mandated in No Mandated in No Child Left Behind & Child Left Behind & by 14by 14thth Amendment Amendment

Knowledge of Basic Knowledge of Basic English deemed English deemed “essential” to “essential” to benefiting from benefiting from public educationpublic education

*A high-need field! *A high-need field!

Special EducationSpecial Education

Exceptional Exceptional Students are Students are identified by Child identified by Child Find and Evaluation Find and Evaluation (RTI)(RTI)

IDEA and Section IDEA and Section 504 provide for 504 provide for “reasonable “reasonable accommodations”accommodations”

IDEA also provides IDEA also provides for Gifted Educationfor Gifted Education

IDEAIDEA

Originally adopted as EAHCA in 1975Originally adopted as EAHCA in 1975 Became IDEA in 1990Became IDEA in 1990 Usually amended every five yearsUsually amended every five years Key amendments in 1997 & 2004Key amendments in 1997 & 2004 Will likely be amended again before Will likely be amended again before

you start teaching!you start teaching!

Key Rights of IDEAKey Rights of IDEA

Child Find, Child Find, Identification, & Identification, & evaluationevaluation

Free and Free and Appropriate Appropriate Education (FAPE)Education (FAPE)

Individual Individual Education Plan (IEP)Education Plan (IEP)

Least Restrictive Least Restrictive EnvironmentEnvironment

““Stay Put” and due Stay Put” and due processprocess

Other Related Other Related ServicesServices

Manifestation Manifestation hearings for hearings for disciplinediscipline

Services for private Services for private school studentsschool students

IDEA EligibilityIDEA Eligibility

School Districts must actively seek to School Districts must actively seek to identify identify allall eligible children within eligible children within their service areatheir service area

Evaluation and services may begin Evaluation and services may begin beforebefore regular education age (ages regular education age (ages 3-5) and can continue until 213-5) and can continue until 21

Right to IDEA services applies even Right to IDEA services applies even to children to children notnot enrolled in public enrolled in public schoolsschools

FAPEFAPE

Special Education, including gifted, Special Education, including gifted, must be at no additional charge or must be at no additional charge or expense to the student or their familyexpense to the student or their family

““Appropriate” to be determined by IEP, Appropriate” to be determined by IEP, Fair Hearing, or CourtFair Hearing, or Court

Appropriate does not mean “best”Appropriate does not mean “best” FAPE may be achieved in some cases FAPE may be achieved in some cases

by placement in private schools and by placement in private schools and facilitiesfacilities

IEPIEP

All children under IDEA All children under IDEA andand 504 must have 504 must have their own IEPtheir own IEP

IEP is normally prepared by a team including IEP is normally prepared by a team including teachers, administrators, and parents; it teachers, administrators, and parents; it maymay include other specialists and even studentsinclude other specialists and even students

Under 2004 revisions an IEP can be drafted Under 2004 revisions an IEP can be drafted without parents if they object to placementwithout parents if they object to placement

Must include regular education teachers if Must include regular education teachers if student is in regular ed classroomsstudent is in regular ed classrooms

LRELRE

Ideally it is the classroom, or as close to it Ideally it is the classroom, or as close to it as possible, as that the student would as possible, as that the student would have been placed in without their have been placed in without their disabilitydisability Can include private and parochial schoolsCan include private and parochial schools

In practice In practice mostmost placements are, at least placements are, at least initially, in regular education classesinitially, in regular education classes

Most restrictive placement is residential Most restrictive placement is residential facilityfacility

Due Process & “Stay Put”Due Process & “Stay Put”

Parents, Children, & Schools all have right Parents, Children, & Schools all have right to fair hearings for disputes over initial or to fair hearings for disputes over initial or revised IEPsrevised IEPs

Extreme disputes can end in Federal CourtExtreme disputes can end in Federal Court During any dispute the parents may invoke During any dispute the parents may invoke

“stay put” which prohibits “stay put” which prohibits anyany change in change in placement until due process is completeplacement until due process is complete

Parents in disputes may employ lawyers Parents in disputes may employ lawyers and, if successful, are entitled to recover and, if successful, are entitled to recover legal feeslegal fees

Related ServicesRelated Services ““Related Services” is a term that applies to Related Services” is a term that applies to

non-educational services deemed non-educational services deemed necessary for a child to benefit from IDEA necessary for a child to benefit from IDEA

Generally applies to health support such as Generally applies to health support such as administering medications, accommodating administering medications, accommodating physical conditionsphysical conditions

Despite restrictions on “medical” services Despite restrictions on “medical” services can include skilled nursing and other can include skilled nursing and other medical specialty services medical specialty services notnot requiring a requiring a certified physician (e.g., respiratory certified physician (e.g., respiratory technicians, etc.)technicians, etc.)

Often these services are provided by Often these services are provided by teachersteachers

IDEA and DisciplineIDEA and Discipline

Special Education students may not Special Education students may not be disciplined for behavior that is a be disciplined for behavior that is a result of their disabilityresult of their disability

When needed, manifestation When needed, manifestation hearings will determine if hearings will determine if inappropriate behavior is disability-inappropriate behavior is disability-related or notrelated or not

However, the IEP can include However, the IEP can include behavior modification responses to behavior modification responses to specific inappropriate behaviorsspecific inappropriate behaviors

IDEA and DisciplineIDEA and Discipline

Exceptions:Exceptions: Children who bring weapons or drugs to Children who bring weapons or drugs to

school school Such offenders may be immediately Such offenders may be immediately

reassigned to an alternative school for reassigned to an alternative school for up to 45 days or suspended for 10 daysup to 45 days or suspended for 10 days

During such time a new IEP and During such time a new IEP and placement may be developedplacement may be developed

IDEAIDEA

Special Education is a service for Special Education is a service for qualified children; qualified children; NOTNOT a disciplinary a disciplinary tooltool

Avoid making referrals for normal Avoid making referrals for normal behavior problems or simply because behavior problems or simply because a child is difficult or unpleasanta child is difficult or unpleasant

Also, avoid making referrals based Also, avoid making referrals based upon cultural issues such as dialect, upon cultural issues such as dialect, pronunciation, or limited Englishpronunciation, or limited English

Discrimination and IDEADiscrimination and IDEA

Surveys and legal opinions note that Surveys and legal opinions note that minorities and male students are minorities and male students are over-referred for IDEA services over-referred for IDEA services nationwide and in Georgianationwide and in Georgia

African-American boys are African-American boys are threethree times as likely to be referred as times as likely to be referred as othersothers

Non-native English Speakers tend to Non-native English Speakers tend to be over-referred for Speech-be over-referred for Speech-Language servicesLanguage services

IDEA-Key “Ideas”IDEA-Key “Ideas”

The key to effectively serving special The key to effectively serving special education children is education children is TEAMWORKTEAMWORK

Changes to special education plans Changes to special education plans require due processrequire due process

IDEA rights also apply to gifted IDEA rights also apply to gifted childrenchildren

IDEA is funded (state & federal); 504 IDEA is funded (state & federal); 504 and ADA are notand ADA are not

Section 504Section 504

Rehabilitation Act of 1973Rehabilitation Act of 1973 Requires reasonable accommodation Requires reasonable accommodation

for disabilities in all public programsfor disabilities in all public programs Generally applies in schools to Generally applies in schools to

children with non-educational or children with non-educational or temporary disabilitiestemporary disabilities

Implemented by IEPImplemented by IEP Should be immediately considered if Should be immediately considered if

a child is not eligible for IDEA servicesa child is not eligible for IDEA services

Section 504Section 504

Covers major life functions such as:Covers major life functions such as: AllergiesAllergies DiabetesDiabetes Mental illnessesMental illnesses HIV/AIDS and other diseasesHIV/AIDS and other diseases Broken bonesBroken bones Certain pregnanciesCertain pregnancies

HIV/AIDS & Other DiseasesHIV/AIDS & Other Diseases Generally not considered an educational Generally not considered an educational

disability and therefore not covered under disability and therefore not covered under IDEAIDEA

Usually covered under Section 504 as an Usually covered under Section 504 as an actual or perceived life disabilityactual or perceived life disability

Infected persons may Infected persons may notnot be excluded be excluded from from anyany activities, including PE and activities, including PE and sports, unless there is an exceptionally sports, unless there is an exceptionally high risk of disease transmissionhigh risk of disease transmission

Under 504 and HIPAA, information Under 504 and HIPAA, information regarding persons with infectious diseases regarding persons with infectious diseases must be tightly restricted must be tightly restricted

For More Information:For More Information:

Your InstructorYour Instructor Dr. Luke M. Cornelius, ED Annex 149 Dr. Luke M. Cornelius, ED Annex 149

lcorneli@westga.edulcorneli@westga.edu