Michael Parent Education Law Final Exam Seton Hall University

QUESTION #2

Dear Superintendent Samantha,

There are several legal issues that must be addressed and considered prior to you taking

any formal action. I have four major concerns that, once outlined, may assist you in making a

final decision.

First, we must examine you decision to bring five special needs students (who have

never attended Setonia schools) into district without first consulting the law, was in error. The

Supreme Court ruled in Forest Grove School District v. T.A. that IDEA authorizes

reimbursement for private special-education services when a public school fails to provide free

appropriate public education (FAPE) and the private school placement is appropriate, regardless

of whether the child previously received special education services through the public school.

Setonia Schools is responsible for paying for these children to continue their out-of-district

education unless the parents agree to send their children to your school. To do otherwise is a

violation of the children's civil rights. I urge you to immediately dis-enroll the five students,

meet with the parents and explain the services we can and cannot offer, and leave the decision of

school choice to the parents. Otherwise, we will find ourselves on the losing end of a civil rights

lawsuit.

You mention that a special education teacher, Sarah, suffers from a debilitation called

sitopathy. Therefore, under Title I of the Americans With Disabilities Act, "An employer is

required to make a reasonable accommodation to the known disability of a qualified applicant or

employee if it would not impose an "undue hardship" on the operation of the employer's

business." Sarah stated that she would no longer be able to move around the classroom or attend

to emergency situations that may arise. It is my judgment that Sarah's disability and likely

Michael Parent Education Law Final Exam Seton Hall University

demands will impose an undue hardship on the business of the school. Therefore, I recommend

that you compose a 504 but find alternate employment position for Sarah other than as a

classroom teacher.

A number of your special education teachers have taken it upon themselves to publicly

challenge the Board's actions regarding the five special needs students by holding up signs at a

BOE meeting. Though we may disagree with these teachers, they are well within their first

amendment right to free speech and cannot be disciplined for their action. I refer you to

Pickering v. Board of Education where the United States Supreme Court found that, "in the

absence of proof of the teacher knowingly or recklessly making false statements the teacher had

a right to speak on issues of public importance without being dismissed from his position".

Since their speech was not offensive or obscene, I recommend that you do not address this issue.

Regarding the teachers' request for a private prayer room in the building, it would be

legal and constitutional to do so. Referencing the Supreme Court's decisions in Lemon v.

Kurztman and Engel v. Vitale, the prayer activity is legal if it is conducted under certain

conditions, not mandated, and if it is privately done. Though the room would be private, the

teachers would not be permitted to play music and use incense since those prayer elements

would violate the space and privacy of non-praying teachers and students in the vicinity. In

short, I would not grant this prayer room to the teachers. If you do, you must also offer the same

accommodations to Muslims, Christians, and other religious parties to whom you will then have

to provide space and time. Denying the prayer room request will not be an act of discrimination.

Finally, with a sense of urgency, I would begin the employment termination process

with Hannah. Be mindful of her 14th Amendment due process rights; allow her to hear the

charges I will outline and allow her to respond.

Michael Parent Education Law Final Exam Seton Hall University

Hanna violated Francis' civil rights when conducting a "frisk" search. I refer you to

Redding v Safford where a student was searched without consent or parent approval. I also

question whether Hannah is familiar with the district policy against teachers touching children.

The New Jersey Supreme Court decision in Frugis V. Bracigliano where the court found, "the

BOE had failed to exercise reasonable care in taking precautions for the safety of the students."

Hannah's actions have the real potential to give Francis' parent's grounds for a lawsuit claiming

that we are knowingly keeping a teacher who touches students in a classroom.

While I understand that Hannah was not properly evaluated, the fact remains that you

and I now know of her classroom management inabilities, her ineffectual teaching practices, and

her recklessness. Hannah is not a tenured teacher, thus she is not entitled to the same protections

as tenured staff. I recommend that you and Pauline begin to write Hannah's evaluations citing

her ineptitudes. Though we have less documentation than is required, I would rather face an

NJEA attorney than have Hannah in the classroom one more day.