Communication and understanding is key between parents and teenagers when it comes to smartphones and social media. Here, parents can download a template Teen Smartphone and Social Media Agreement. The agreement was drafted by attorney-parents at Abdnour Weiker, LLP considering the various ways that teenagers find trouble with smartphones and social media.
The Intersection of Student Privacy and Special Education
What are the laws about educational records?
When it comes to your child’s educational records, there are a few laws that come into play.
Family Educational Rights and Privacy Act (“FERPA”)
The purpose of FERPA is to protect parent and student privacy.[1] FERPA applies to all students.[2] FERPA grants parents the right to inspect and review their child’s educational records[3] and to request an amendment to their child’s educational records[4], and it prohibits school districts from disclosing personally identifiable information without parent consent (with some limited exceptions).[5] When reviewing educational records, FERPA also requires the District to “respond to reasonable requests for explanations and interpretation of education records.”[6] This means if you have questions about the records you’re reviewing, you can (and should!) request that the District explain and interpret those records for you, and the District has to respond, so long as your question is reasonable (i.e. related to the documents you’re reviewing).
FERPA defines an educational record as, “those records that are: (1) Directly related to a student; and (2) Maintained by an educational agency or institution or by a party acting for the agency or institution.”[7] Looking at that definition a little more closely, a record is “any information recorded in any way, including, but not limited to, handwriting, print, computer media, video or audio tape, film, microfilm and microfiche.”[8] While FERPA doesn’t specifically define what it means to be “directly related to a student,” this is generally considered to include any record with personally identifiable information regarding a student. Personally identifiable information includes not only a student and parent’s names, their address, or other specific identifier (such as birth date or social security number), but also, “other information that, alone or in combination, is linked or linkable to a specific student that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty” and “information requested by a person who the [school district] reasonably believes knows the identify of the student to whom the education record relates.”[9]
While “maintained” is also not defined by FERPA, the United States Supreme Court has defined it as, “to keep in existence or continuance; preserve; retain."[10] The Court further noted that "[t]he word 'maintain' suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled." Id. at 433 (emphasis added).
Individuals with Disabilities Education Act (“IDEA”)
IDEA is a civil rights law regarding students with disabilities, providing specific rules and rights for ensuring these students receive a free and appropriate public education. One of these rights includes the right to inspect and review records.[11] This applies to all records that are, “collected, maintained, or used” by the school district.[12] In addition to simply inspecting and reviewing the records, IDEA also gives parents the following rights:
(1) The right to an explanation and interpretation of the records;
(2) The right to copies, only if failure to do so would prevent you from inspecting and reviewing the records; and
(3) The right to have a representative inspect and review the records.[13]
IDEA also requires school districts to, upon request, provide parents “a list of the types and locations of education records collected, maintained, or used by the agency.”[14]
Section 504 of the Rehabilitation Act (“Section 504”)
Under Section 504, parents must also be given an opportunity to “examine relevant records” regarding the student.[15] While section 504 does not define “relevant records,” the office of civil rights has given examples such as, " evaluation reports, report cards, a Section 504 plan, discipline records, and health records.”[16]
What do educational records have to do with testing records?
Testing records are, or at least they can be, educational records. So long as they contain personally identifiable information about your child (i.e. are related to the student), and are maintained by the District, the testing records are educational records. However, if there is no personally identifiable information, it is not.[17] For example, if your child is given an intelligence test, such as the Wechsler Intelligence Scale for Children, and he either personally writes his information in an answer booklet with his name on it, or the evaluator records his answers on an answer booklet with your child’s name on it, that document is now considered an educational record. However, if the questions given to your child and/or the instructions are on a different document that does not have any personally identifiable information regarding your child on it, that document would not be an educational record.
While neither FERPA nor Section 504 specify how long these records must be kept before being destroyed, if your child receives services under IDEA, the Districts must inform you when records that are maintained, used, or collected are no longer needed for the child’s educational services.[18] While it’s up to the District when the records are no longer needed, they still must inform you of that decision and, if you request to inspect the records, they cannot destroy them while the request is pending. Further, under Section 504, although there is no similar requirement that the District notify you before destroying records, the Office of Civil Rights (OCR) has repeatedly found that District policies related to destroying testing protocols and scoring sheets, to the extent they are educational records, denied parents access to “all relevant records,” in violation of Section 504.[19]
Michigan has specific rules regarding the maintenance of testing records that go beyond the protections of IDEA and Section 504, to apply to both general education and special education students. In Michigan, student standardized testing data (records that document test scores and analysis for standardized tests that were taken by individual students) must be maintained until five years after the student graduates.[20] Summary testing data (records that document student performance on standardized tests; such reports document the scores of all students in the building who took the test) must be kept until five years after the date it was created. For other states, you can generally find information regarding record retention schedules by searching “records retention and disposal schedule for [your state’s] public schools” via an internet search.
To the extent testing protocols and answer booklets are educational records, you have the right to review and inspect them. The biggest challenge you may face in requesting to review these documents is copyright concerns. However, so long as you are inspecting the records in person, this should not apply as the District is maintaining control and custody over the documents.[21] If you are seeking copies, this is a much more difficult burden to overcome. While there may be some exceptions for when copies must be provided, such as for due process hearings to ensure a fair hearing and appropriate representation by counsel,[22] in general both courts and OCR have found Districts to have complied with their obligations under FERPA, IDEA, and OCR where parents have been given an appropriate opportunity to inspect the records.[23]
Why is this important to me and my child with a disability?
Testing records can be a key tool when advocating for the appropriate identification, placement, or services for your child. To use testing records to advocate for your child, first gather all relevant test results. Then, analyze the data to identify strengths and weaknesses. Finally, use specific details from the records to clearly communicate your child's educational needs to school officials, highlighting areas where additional support or accommodations might be necessary.
Key steps to effectively use testing records for advocacy:
1. Obtain copies of all relevant testing data:
This includes standardized achievement tests, ability tests, diagnostic assessments, and any other relevant evaluations your child has taken.[24]
Make a list of all the testing your child has completed recently, and send a written request to the District to review and inspect all testing protocols and answer booklets related to these evaluations that contain personally identifiable information, as these are educational records pertaining to your child’s education.
2. Review and understand the test results:
Learn the meaning of the scores, percentiles, and other metrics used in the testing reports. Look for consistent strengths and weaknesses across different tests to get a comprehensive picture of your child's learning profile. Also look for specific areas of concern within the itemized answers your child provided.
If you have any questions about what you are reviewing, ask the District to provide someone who can explain the meaning of the information, how the test was administered, the resulting scores, etc. so you can fully understand the information presented.
Bring a notebook when you go to review the documents, so you can take specific notes on your review and, as applicable, conversation with District staff explaining the records.
3. Compare progress over time: if your child has taken similar tests in the past, compare their scores to show areas of growth or stagnation. Repeat steps 1 & 2 for future tests to continue comparing your child’s growth or stagnation.
4. Communicate clearly with the school: after reviewing the testing records and your notes, explain how the test results impact your child's learning in the classroom and how specific interventions or accommodations could address those needs. You can do this in writing or request a meeting to discuss your concerns and, as appropriate, revise your child’s IEP or 504 plan.
5. Be prepared to ask questions and make specific requests: during meetings with school officials, be ready to ask questions about the test results and how they will be used to inform your child's educational plan. Examples of specific requests include:
For a child with reading difficulties: if standardized tests show significant gaps in reading comprehension, use the specific data points to advocate for additional reading interventions or a reading specialist.
For a gifted child: if a test indicates high potential in specific areas, use the results to request enrichment activities or acceleration opportunities.
For a child with learning disabilities: if a diagnostic evaluation identifies a learning disability, use the test findings to advocate for accommodations or special education services.
During advocacy discussions with the school, remember to present your information constructively – focused on solutions and potential interventions based on the test results. The goal is to advocate for appropriate identification, placement, or services for your child using the information discovered during your review of testing protocols or other education records.
What happens if the District refuses my request to review records, or says the records don’t exist?
If the District denies your request to review records, or claims the specific records are not educational records, you have the right to file a complaint under FERPA. In general, you have 180 days to file a complaint from when the District denies your request to review and inspect the records. Information on FERPA’s complaint process can be found here: https://studentprivacy.ed.gov/file-a-complaint.
If the District says the records do not exist, or similarly denies the records are educational records, and you have a child with a disability receiving services under IDEA, you can file a state or due process complaint. For a state complaint, you have 1 year from the date you learned of the violation to file your complaint. The state will then investigate your complaint and issue a decision within 60 days; you also have an opportunity to participate in mediation to resolve your concerns. For a due process complaint, you will present your allegations in front of an administrative law judge, similar to a civil trial, and the judge will decide if the District violated IDEA. More information on these dispute resolution processes in Michigan can be found here https://www.michigan.gov/mde/services/special-education/dispute-resolution-options. For other states, check your department of education’s website for information on their dispute resolution processes. Because due process is considered a formal legal proceeding with strict timelines to be followed, and because the District will be represented by an attorney, while you do have the right to represent yourself, we highly recommend retaining an attorney or at least consulting with an attorney before filing on your own.
If your child is receiving services under IDEA or Section 504, you can also file a complaint with OCR. Information regarding OCR’s complaint process can be found here: https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint.
In all cases, or if you have any other questions about reviewing and using testing records, you can reach out to an education attorney.
[1] See 34 CFR 99.2.
[2] See 34 CFR 99.3; 20 U.S.C. 1232g; 20 U.S.C. 1232g(a)(6).
[3] See 34 CFR 99.10-99.12.
[4] See 34 CFR 99.20-99.22.
[5] See 34 CFR 99.30-99.39.
[6] See Letter to Shuster, 108 LRP 2302 (OSEP 2007); 34 CFR 100.S62(b)(I); 34 CFR 99.10(c).
[7] 34 CFR 99.3; 20 U.S.C. 1232g(a)(4).
[8] 34 CFR 99.3.
[9] Id.
[10] Owasso Indep Sch Dist No. I-011 v Falvo, 534 U.S. 426, 433; 122 S Ct 934; 151 L Ed 2d 896 (2002) (quotation marks and citation omitted).
[11] 34 CFR 300.613.
[12] 34 CFR 300.613(a).
[13] 34 CFR 300.613(b).
[14] 34 CFR 300.616.
[15] 34 CFR 104.36.
[16] Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, U.S. Dept. of Educ. Office for Civil Rights (Dec. 2016), available at https://www.ed.gov/media/document/504-resource-guide-201612pdf#:~:text=The%20Meaning%20of%20Disability%20Under%20Section%20504,-Major%20life%20activities&text=Major%20bodily%20functions%20are%20also,%C2%A7%2012102(2)).
[17] See Letter to Shuster, 108 LRP 2302 (OSEP 2007).
[18] 34 CFR 300.624(a).
[19] See St. Charles (IL) Community School District No. 303, 17 IDELR 16 (OCR 1990); Pawtucket (RI) School District, 111 LRP 16103 (OCR 12/17/10).
[20] https://www.michigan.gov/-/media/Project/Websites/dtmb/Services/Records-Management/RMS_GS2.pdf?rev=6bab3a5ee5544a479e9cb969e7a53de8
[21] See Letter to Price, 57 IDELR 50 (OSEP 2010).
[22] See Tri-County (IL) Special Educ. Coop., 257 IDELR 529 (OCR 1984).
[23] See In re: Child with a Disability, 505 IDELR 215 (SEA IL 1983); Supra Note 20; Doe v. Arlington County School Board, 30 IDELR 362 (E.D. Va. 1999), aff’d, 32 IDELR 58 (4th Cir. 2000), cert. denied, 115 LRP 3585, 531 U.S. 824 (2000), superseded by statute on other grounds as stated in N.L. v. Knox County Schools, 38 IDELR 62 (6th Cir. 2003); Kenilworth Board of Education, 106 LRP 2627 (SEA NJ 06/15/00); Arapahoe 5, Cherry Creek School District, 113 LRP 2895 (SEA CO 12/17/12).
[24] Parents can request to review records by submitting a letter to the school. Disability Rights Michigan offers several sample form letters to use when requesting records. See https://www.drmich.org/wp-content/uploads/2020/10/DRM_guide_chap2_2020.pdf.
Written by attorney Jacquelyn Kmetz and law clerk Lorraine Harmer at Abdnour Weiker, LLP
Public Education Funding in Pennsylvania: Past, Present, and Future
Introduction
Thomas Jefferson famously espoused that “an enlightened citizenry is indispensable for the proper functioning of a republic.” He believed that the survival of our Republic was critically dependent upon the education of all citizens. The necessity of public education remains a core belief that is axiomatic for most Americans today.
Although the right to an education is not explicitly contained within the United States Constitution, it is deeply rooted in Pennsylvania Constitutional history, dating as far back as William Penn’s 1681 Frame of Government, the Commonwealth’s first charter. Penn believed that no cost should be spared in providing for education, and this principle has been carried through to subsequent iterations of the Pennsylvania Constitution in 1790, 1838, and 1874. The current Education Clause, voted on in 1967, provides: “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.” Pa. Const. art. III, § 14.
In order to effectuate this constitutional mandate, a system of public education has evolved which serves more than 1.7 million K-12 students and includes 500 school districts, over 160 brick-and-mortar charter schools, 14 cyber charter schools, 29 Intermediate Units, and 84 career and technical education centers. Ideally, this conglomeration of resources should be sufficient to deliver quality education to all Pennsylvania students, however, irrefutable data suggests access to quality education is not evenly distributed in the Commonwealth. Disparities in the allocation of educational resources have led to an historic challenge of the constitutionality of public education funding in the case William Penn School District v. Pennsylvania Department of Education.
Who brought the suit and what is the issue?
In 2014, six Pennsylvania school districts, several parents, the Pennsylvania Association of Rural and Small Schools (PARSS) and the NAACP Pennsylvania State Conference filed a lawsuit in the Commonwealth Court against the Governor, various state education officials, and the legislature, alleging a systemic failure to uphold the state constitutional mandate of providing a “thorough and efficient system” of education to all Pennsylvania students. According to the suit, Pennsylvania’s then-used education funding model relied so heavily on local property taxes to fund school districts that it excessively and unconstitutionally disadvantaged low-wealth districts.
Although school districts across the United States are funded by some combination of federal, state, and local dollars, the plaintiffs in this suit alleged that Pennsylvania was overly reliant on local money and was underfunded at the state level, thereby creating an unconstitutional disparity in funding based on local demographics.
Debra Gordon Klehr, Executive Director of the Education Law Center, and attorney for the plaintiffs, has explained, “[W]hen we filed the case, Pennsylvania was paying about 36 percent of the funds to school districts – about 10 percentage points lower than most other states. And that had a huge impact on our schools and inequity because districts then had to rely on local wealth to raise money they weren’t getting from the state.” Demographically diverse, the six petitioner school districts were selected because each had a high tax effort but low tax capacity, were efficient with what they had, but were still unable to provide for their students’ needs because of lack of state support.
The Trial
Before trial, this case toggled its way up and down the Pennsylvania appellate court system, ultimately landing in the Commonwealth Court for a trial on the issue of fairness and equity in funding. The trial was held before President Judge Renee Cohn Jubelirer and took place over four months in 2021. The individual plaintiffs shared distressing stories of the failure of the public school system to educate their children. They also presented data and expert testimony that demonstrated how Pennsylvania’s two-tiered funding system denied students in low wealth and low-income school districts a quality education.
The evidence adduced at trial demonstrated that all students in the Commonwealth need more funding, but students in the poorest school districts need significantly more funding than students in the wealthiest districts. Students in the poorest quintile of districts need 38% more funding and the wealthiest quintile students need 11% more funding than they currently receive. In order to meet proficiency goals in state assessments, school districts need an additional $4.6 billion in funding, with low-wealth districts being the most severely underfunded. Their adequacy shortfall is 11 times that in the wealthiest quintile.[1]
The Court’s Ruling
On February 7, 2023, Judge Cohn Jubilerer issued a 768-page decision that recognized that “all children can learn and succeed when given the tools.” She noted that education is a fundamental right guaranteed by the Pennsylvania Constitution, and that a “thorough and efficient” system of education includes such components as:
A sufficient, qualified, and effective staff
Safe and adequate school facilities
An adequate, modern curriculum
Modern instrumentalities of learning including technology and books
Ultimately, Judge Cohn Jubilerer held that Pennsylvania’s funding model failed to provide these critical components in an equitable manner. The Judge was persuaded by data demonstrating that students residing in school districts with low property values and incomes were deprived of opportunities and resources available to students residing in high property value and high-income districts. The Judge concluded that this disparity is not justified by any compelling government interest, nor is it rationally related to any legitimate government objective. Therefore, the resultant disparities deprive students of equal protection under the law. In order to correct this injustice, the Court ordered state officials to change the way public schools are funded. The ruling set the stage for a comprehensive overhaul of Pennsylvania’s public education funding formula; a task that would prove to be easier said than done.
Where do we stand now?
The Court did not provide specific guidance on how to achieve constitutionality in public education funding; it would be up to the legislature and state education officials to develop a strategy to do this. The work began with the creation of a bipartisan panel of legislators and Pennsylvania education officials dubbed the Basic Education Funding Commission. Throughout the fall of 2023, the Commission held public hearings and entertained public comments. In January 2024, the Commission adopted a plan that, if implemented, would make fundamental changes to the funding formula to not only increase spending across the board, but to address current inequities in spending.
On August 9, 2024, Governor Josh Shapiro signed into law the new funding formula which included a new funding formula and additional educational funds totaling $1.1 billion.
Where do we go from here?
While this is a good start, education advocates believe it is not good enough. Lancaster School District Assistant Superintendent Matt Przywara is quoted as saying, “the increase doesn’t go far enough to answer the landmark 2023 court ruling that concluded Pennsylvania’s school funding formula was unconstitutional because it short-shrifted poorer school districts.” He has accused Governor Shapiro and other state officials of not finishing the job. Many agree with him.
But it is a start. As citizens, we need to stay informed about this issue and hold our elected officials accountable to the Court’s 2023 decision and ultimately, the Pennsylvania Constitution. How can an ordinary Pennsylvania citizen stay informed? Here is a list of things you can do:
1. Attend your local school board meetings. Ask questions of your elected officials!
2. Study your local school board’s annual.
3. Monitor your district’s performance on annual assessments.
4. Stay informed about public school funding statewide at the following sources:
The Public Interest Law Center
As Thomas Jefferson would remind us – we must remain educated so can ensure a proper education for future generations.
[1] Case Spotlight: William Penn School District et al. v. Pennsylvania Department of Education Summary
Written by attorney Kathleen Mahoney at Abdnour Weiker, LLP
College Prep: What To Do To Ensure Success For Students With Disability Accommodations
With college application season in full swing, high school students with disability accommodations may be wondering how they can set themselves up for success in college. Firstly, it is important to know that students with IEP or 504 Plan accommodations can apply to college without disclosing their status, as colleges are prohibited from asking about disabilities during their application processes. But once a student achieves admission into their college of choice, what should they do next? The IEP process ends after high school and so do special education programs, so colleges do not provide IEP’s. However, if a student had an IEP in high school, they could provide that IEP to their college and use it as a starting point to work out appropriate accommodations in college. The Americans with Disabilities Act and Section 504 of the Rehabilitation Act do continue to protect the rights of college students with disabilities and do not end with high school. A student who had a 504 Plan in high school can similarly use that plan as a starting point for potential college accommodations. There are several other steps that, if taken early on, can make all the difference for a student’s success.
Perhaps the most important thing for college-bound students with disabilities to know is that there is no Child Find requirement in college. In K-12 education, the responsibility to assess the needs of children with disabilities and provide appropriate accommodations falls on the school. In college, the student carries the responsibility of self-disclosure and must formally request accommodations in order to receive any. In order to receive disability accommodations in college, students must first meet with the Disability Services Coordinator at their college.
Disability Services will conduct an individual evaluation of each student that seeks accommodations. No two students’ accommodations are required to be the same. For this reason, it is important for students to be prepared and to engage in self-advocacy when dealing with Disability Services. The sooner a student meets with Disability Services for their college, the better. We recommend setting up a meeting as soon as a student commits to their college to ensure that they have time to gather and provide any paperwork or records Disability Services may need in order to determine accommodations.
A student’s relationship with Disability Services can influence their college experience and determine which accommodations are appropriate for the student. It is critical that students meeting with Disability Services advocate for themselves, understand what is being discussed, and feel empowered to ask questions and make requests during the process. At these meetings, students can expect to discuss their disabilities and how they impacts them, including how they impacts their experience in the classroom; accommodations they have had in the past and if they did or did not work for them; and any medical documentation of their disabilities including prior evaluations or assessments.
The more prepared a student is to request specific accommodations, the more likely it is that they will receive the accommodations they want. We recommend making a list of desired accommodations prior to meeting with Disability Services in order to ensure that Disability Services is aware of what accommodations a student feels they need. Below are three brief examples of common college-level accommodations:
1) Additional Time on Assessments
2) Quiet Testing / Separate Testing Area
3) Preferential Seating
Once a student is given accommodations through Disability Services, the responsibilities of the student do not end there. Students must continue to engage in self-advocacy and communicate with their professors in order to ensure their academic success. If an accommodation is not working, needs to be implemented differently or changed altogether, students should feel empowered to communicate that to their professors and Disability Services. Remember – self-advocacy is key, and engaging in these steps early on can set students up for success in their college careers!
Written by attorney Megan Mitchell at Abdnour Weiker, LLP
Toward A Consistent Approach to School Threat Assessments
It’s been over 25 years since the school shooting at Columbine High School, an event that shocked the conscience of the nation and sparked the national debate on gun violence in schools. But what have we learned in those 25+ years? Since the Columbine massacre in April 1999, there have been an estimated 2,311 school shootings. (1)
Around the nation, school threat assessment protocols have been put in place to evaluate risks and prevent the next tragedy. A threat assessment involves evaluation and classification of the threat (i.e., transient versus substantive) and following up with an appropriate response and intervention, including notifying parents and creating a written safety plan.
But even with the directives aimed at calculating and measuring the level of risk posed by a given statement or incident, in the first 3 months of 2024 alone, there were 77 incidents of school shootings in the United States. (2) “Prevention is the missing piece after every attack,” said Ohio Attorney General Dave Yost. “And the safety of children across our state depends on us plugging that gap.” To address that gap, Yost’s team created the Ohio School Threat Assessment Training, a combination of best practices from leading school-safety experts, including the U.S. Secret Service National Threat Assessment Center. The training envisions a team approach, engaging community members, such as police officers and mental-health advocates, to prevent targeted violence and get help for troubled students.
Ohio House Bill 123 went into effect in March 2023, establishing the Safety and Violence Education Students (SAVE Students) Act, providing directives and protections for school safety and youth suicide awareness education and training. Every Ohio school district must now assemble a threat assessment team for each school serving grades 6 – 12, in the district. The SAVE Students Act also require school threat assessment teams to complete, upon appointment to a threat assessment team and once every three years thereafter, one of several approved training programs. These programs are offered free or of no cost to schools. These programs adhere to evidence-based standards and curriculum requirements, providing instruction in (1) identifying behaviors, signs, and threats that may lead to a violent act; (2) determining the seriousness of a threat; and (3) developing intervention plans that protect the potential victims and address the underlying problem or conflict that initiated the behavior and assessments of plan results.
When faced with a threat of violence against a school, staff or students, the team should follow some basic guiding principles:
Treat all threats seriously.
Investigate the incident promptly and efficiently.
Use support staff and external resources as a part of a multidisciplinary threat assessment team to evaluate threats.
Take appropriate disciplinary and criminal enforcement steps.
Document the threats and actions taken.
Enhance security measures, as appropriate, to ensure the safety of all students, staff, and facilities.
Following the SAVE Students Act directives ensures consistency and thoroughness in evaluating and responding to threats. Unfortunately, schools in Ohio have different approaches to threat assessments when faced with statements or actions that are perceived as threats. Some Districts follow the mandates of nationally accredited programs, putting many hours into investigating and evaluating every single threat, and creating a thoughtful response aimed at identifying true threats and supporting students. Other schools are less detail oriented in their investigation, and less consistent in their approaches to threat assessments. Such informality leads to more students facing discipline (and potential criminal charges) for threats that may not present the requisite risk of violence or cause for alarm.
Our schools would be safer and our students more supported if every school district undertook a consistent approach, based on the directives outlined in the Ohio School Threat Assessment Training Guide and Reference Manual.
1. All shootings at schools includes when a gun is brandished, is fired, or a bullet hits school property for any reason, regardless of the number of victims, time, or day of the week. Naval Postgraduate School’s K-12 School Shooting Database, Riedman, David (2023). K-12 School Shooting Database.
2. The United States government Office of Government Accountability maintains records evaluating the characteristics of school violence, relying on the Naval Postgraduate School’s K-12 School Shooting Database, Riedman, David (2023). K-12 School Shooting Database.
Written by attorney Ruth Pack-Adler at Abdnour Weiker, LLP
Highlights from the 2024 Student Rights Conference
On July 18 and 19, 2024, educators, parents, legal professionals, and advocates joined both online and in-person to participate in AW Law’s First Annual Student Rights Conference. Hosted at The Childhood League campus in Columbus, Ohio, and the Corewell Health Southfield Center in Southfield, Michigan, this two-day event was carefully structured to cover a wide range of topics, with Day 1 focusing on special education rights and Day 2 broadening the scope to general student and parental rights.
Day 1: Special Education Rights
Day 1 of the conference kicked off with a deep dive into special education, offering invaluable insights for attendees navigating the complexities of the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act. Presentations by AW Law attorneys and advocates, as well as local related service providers, equipped attendees with strategies to effectively collaborate with school districts to ensure their children receive the support they need. Sessions like “Walkthrough Sections of the IEP” and “Negotiation Tips & IEP Team Building” offered practical guidance on understanding Individual Education Programs (IEPs) and negotiating the best possible outcomes for students with disabilities.
A highlight of Day 1 was the panel discussion featuring representatives from various special education-focused organizations. This session not only provided a platform for these organizations to share their services but also offered parents a chance to ask questions and build connections that could support their advocacy efforts in the future. The day concluded with a networking reception, where attendees made valuable connections.
Day 2: Student and Parental Education Rights
Day 2 expanded the conversation to encompass broader issues of student and parental rights. AW Law Managing Partner Mark Weiker, Esq., opened the day with a compelling session on the challenges students face in navigating school discipline. This was followed by discussions on the evolving legal landscape of parental speech, the complexities of education record laws, and strategies for addressing bullying and harassment. Each session was designed to provide attendees with the knowledge and tools necessary to effectively for their students.
The conference also tackled contemporary issues such as the impact of social media on student lives and the legal challenges that can arise from its misuse. Sessions on topics like “Swipe Right: Legal Insights for Parents in the World of Sexting + Social Media” and “Title IX Sex-Based Harassment; School Obligations” were particularly relevant given the increasing role of social media in students’ lives. The conference closed with a discussion on school choice and special education scholarships, providing attendees with information on the various educational options available in Ohio and Michigan.
Overall, the Student Rights Conference 2024 was a success, bringing together a diverse group of stakeholders to discuss issues affecting students today. Attendees left equipped with knowledge and resources to help them navigate the educational landscape and advocate effectively for their children’s rights. We look forward to the Conference’s continued growth in 2025!
This summary was written by Ohio education attorney, Renee Stromski, with Abdnour Weiker, LLP. If you need assistance with an education law issue, please contact us at www.Lawyers4Students.com
Ohio Homeschooling Law Changes: What Parents Need to Know
The number of homeschooled students in the United States dramatically rose during the COVID-19 pandemic. This growth largely sustained itself through the 2022-2023 academic school year, cementing homeschooling as America's fastest growing form of education. In 2019, the National Center for Education Statistics reported that there were 1.5 million homeschooled children in the United States. The Washington Post recently estimated that number has risen to somewhere between 1.9 million to 2.7 million children, but there has not been an official federal estimate since 2019 [1].
In October 2023, homeschool law in Ohio experienced a major overhaul due to the signing of House Bill (H.B.) 33 which greatly reduced regulatory hurdles for homeschooling families. [2] So, what does this mean for Ohio students?
Under the new law, “home education” is defined as the “education of a child between the ages of six and eighteen years of age, that is directed by the child’s parent.” Under the previous law, parents/guardians were required to send an initial notification within one week from the child’s withdrawal from school, or no later than the first week of the school year. Now, parents/guardians must notify their superintendent within five calendar days after initially withdrawing from school and on the thirteenth day of August each additional year they chose to homeschool.
The notification must include…
The student’s name
The student’s address
A signature from a parent/guardian
An assurance that the home education with include instruction in the following: English language arts, mathematics, science, history, government, and social studies
Once the notification is received, the district superintendent must release the student from compulsory school attendance, and districts cannot request any additional information from the family. In addition, parents/guardians who chose to home educate their students are fully responsible for selecting curriculum and course materials for their children; there is no financial assistance from the state for these families.
Previously, when issuing a notification, parents/guardians were required to also include a syllabus outline as well as course materials. In addition, they were required to assure that their student would be provided with a minimum of 900 hours of home education each school year as well that the home teacher had a high school diploma or other equivalent accreditation. Each year, parents/guardians were also required to submit an assessment or evaluation of an education portfolio to show their students proficiency. These requirements were removed with the passing of H.B. 33.
Parents should also be sure to keep in mind that if they choose to enroll their student in a public school after being homeschooled, they shall be placed in the appropriate grade level, without prejudice and based on the district’s policies [3].
Sources
[1]https://www.washingtonpost.com/education/interactive/2023/homeschooling-growth-data-by-district/
[2]https://www.wfmj.com/story/49600360/new-law-changes-homeschooling-requirements-in-ohio
[3]Am. H. B. No. 33 (135th G.A.)
If you have questions or concerns about homeschooling, please reach out to Abdnour Weiker, LLP at www.Lawyers4Students.com or (614) 475-2001.
New DOE Regulations: Can Your College Withhold Your Transcript?
On July 1, 2024, several new federal regulations went into effect in a bid by Department of Education officials to “oversee predatory and low-quality institutions of post-secondary education”.
Perhaps the most prominent change is that federal regulations no longer permit colleges that receive federal financial aid to withhold transcripts for course credits paid for with federal money. As it would be extremely difficult for institutions to determine which credits in a student’s transcript were paid for with federal funds, and subsequently to solely release transcripts with those courses, it is likely that this change to the federal regulation will amount to a national ban on the practice of withholding student transcripts when there is a balance owed by the student.
Students throughout the United States have struggled to get their higher education institution to release their transcript because they owe a balance to the institution. This phenomenon creates stranded credits, or academic credits that a student has earned but which cannot be verified due to the institution’s refusal to release the transcript. If a student cannot get their transcript, they cannot prove the credits they have earned to any other institution and have to start over if they wish to continue their education elsewhere. According to the 2024 Transcript Regulation Impact Survey (TRIS) by the American Association of Collegiate Registrars and Admissions Officers, there are 6.5 million people in the United States with stranded credits with roughly $15 billion in debt owed to higher education institutions.
This practice of withholding transcripts is utilized by higher education institutions to force students to pay the debts owed on their balance in order to have access to the formal record of their academic progress. This practice disproportionately impacts low-income students and students of color, and further bolsters inequities in the education system. Encouraging institutions to stop engaging in this predatory practice is one thing the Department of Education can do to help students that are struggling under the burden of student debt.
Students aren’t out of the woods yet, though: several of the new regulations are already facing legal challenges, and whether this particular regulation remains in place will likely depend on how federal courts interpret the recent Supreme Court ruling in Loper Bright Enterprises v. Raimondo, which curtailed Chevron[1] deference and substantially limited the regulatory power of federal agencies.
If you are a student struggling to get your higher education institution to release your transcript due to a balance owed, we recommend you consult with an attorney to see if you can use these new regulations to your advantage and get your transcript released to you.
Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP
www.Lawyers4Students.com
[1] In Chevron v. Natural Resources Defense Council, the Supreme Court held that when a legislative delegation to an administrative/regulatory agency was not explicit but was implicit, the court could not substitute their own interpretation of the statute for a reasonable interpretation by the agency. This case created what is known as Chevron deference, wherein courts deferred to federal agencies on their reasonable interpretations of the regulatory statutes. In the recent decision in Loper, the Supreme Court has effectively put an end to the practice of Chevron deference.
Preparing Adolescents with Disabilities for “Real Life”
The world can inevitably be cruel and dangerous. In a perfect world, everyone would be kind, every place would be safe, and opportunities wouldn't depend on our financial circumstances. This is not the case. As unfortunate as it may be, the world can be even more challenging for our children with disabilities.
It is an instinct to want to shield them from a world where they may be mistreated and discriminated against or to keep them close so that you can protect them from any danger that may surround them. This instinct undoubtedly increases as you find your child struggling with safety, social cues, and independence.
However, our children want to live fulfilling lives filled with work, love, and friends, just like any other person.
Love on the Spectrum is a docuseries on Netflix that follows individuals of all ages on the spectrum on their quest to find love. Throughout the show, here are some impactful quotes from individuals on the show:
“I have so much love to give” —Journey, 18
“I really would like to have someone special with whom I can share the best moments of my life.” —James, 35
“I don't want to spend the rest of my life alone” —Connor, 24
“It would be nice for me to live on my own” —Dani, 28
In this unpredictable world, how can we support our children with disabilities in creating fulfilling lives while also preparing them for “real life”? Here is how:
1. Modeling: As you complete everyday tasks, walk your child through each step. Talk to them about what you are doing and why. Try to explicitly explain even the “small stuff,” such as volume/tone of voice, how to be appropriate in the given setting, etc. If you are at the grocery store with your child, for example, here are some things you can explain and discuss:
Refrigerated vs non-refrigerated items
Making a list of ingredients to buy
Appropriately standing in line
Greeting a cashier
Who to ask if you can't find something
How to pay for your items
2. Help them foster friendships and relationships: If we are honest, almost everyone has had difficulty in social situations. As we get older, we start to understand how to handle and thrive in social situations. Making small talk, building healthy relationships, and making friends becomes more manageable. For our children with disabilities, this instinct may not come naturally and often needs to be explicitly taught. Here are some things you can help your child work through:
Personal space during conversations
What qualities make a good friend and a bad friend
What different facial expressions mean
When hugging is appropriate
What to do when you have a crush on someone
3. Talk about “What If” Scenarios: We can all agree that if the world were more black and white, life would make much more sense. Unfortunately, life seems to be a grey area, where preparing for some of the cards we are dealt is almost impossible. However, once we handle something new for the first time, it gets much easier each time. This is the same for our children with disabilities. Each time we intentionally expose them to “what-if” scenarios, we help them become equipped and prepared to handle similar situations the next time. Over time, this can lead to them being able to handle the problem independently. Here are some suggestions on “what-if” scenarios that you can help your child prepare for:
What to do if someone sends a mean text
What to do if your friend wants you to steal
What to do if you can`t pay for something
What to do if you get lost
What if someone asks for your personal information
Whatever disability your child may face, our job is to foster independence and support them in creating happy lives—whatever that may look like to them.
“Disability is natural. We must stop believing that disabilities keep a person from doing something. Because that's not true. Having a disability doesn't stop me from doing anything”.
-Benjamin Snow, 8th grade
Written by intern McKayla Crayton at Abdnour Weiker, LLP
Ensuring Access: Parental Rights for Private School Transit in Ohio
There is a strong emphasis on school choice in Ohio, which provides families with the
opportunity to select the most appropriate schooling path for their children. In some cases, families opt for private or nonpublic schools that best align with their values and educational preferences. A critical aspect that often arises in this decision-making process is the challenge of transportation. Luckily, Ohio state law outlines specific parental rights related to private school transportation coordinated by their local school district of residence.
Right to Private School Transportation
Under Ohio Revised Code (ORC) 3327.01, Ohio has outlined specific rights related to transportation for students to attend the private school of their choice from their public school district of residence. This statute states that if a student is attending a private school, parents have the right to request transportation services from their local district if the private school is located 30 minutes or less from the school building within the school district of residence that the child would attend had they been enrolled within the district.
The request for transportation services is typically made to the local district’s board of education. Families should be sure to adhere to any deadlines or requirements for submitting transportation requests. Once the request is received, the board must review it and determine whether or not they can practically provide transportation.
Understanding Impracticality and Initiating the Appeals Process
The concept of impracticality is a critical factor in determining whether a local district must provide transportation to a nearby private school. Districts have the right to declare transportation “impractical” for a student to a private school based on the consideration of all six of ORC 3327.02(A)’s statutory factors:
The time and distance required to provide the transportation;
The number of students requesting to be transported to the same or nearby schools;
The cost of providing transportation in terms of equipment, maintenance, personnel, and administration;
Whether similar or equivalent service is provided to other students eligible for transportation both within and outside the district;
Whether and to what extent the additional transportation service would unavoidably disrupt current transportation schedules; and
Whether other reimbursable types of transportation are available.
If the district determines that providing transportation is impractical, they must notify the family in writing along with a specific offer of a payment-in-lieu of transportation and the opportunity to reject this offer and pursue mediation procedures with the Ohio Department of Education and Workforce (“ODE”). If mediation fails to resolve the dispute, ODE will then conduct a formal appeal hearing.
Importantly, once a parent initiates mediation procedures with ODE, the district becomes obligated to provide transportation for the student to the private school until an agreement or decision on the case has been reached.
Approaches to the Appeals Process
There are various strategies and evidence that families may use to help show to the assigned hearing officer that the district's decision was erroneous, and that transportation is practical. One key aspect to challenge is the district's determination of impracticality based on distance. The parent can provide evidence such as maps or official travel time estimates demonstrating that the private school is within a reasonable distance for transportation. This can include documentation showing typical commuting routes, traffic patterns, and actual travel times during school hours.
Gathering testimonials from other parents or community members facing similar transportation challenges can provide additional support. Additionally, seeking expert opinions from transportation specialists can bolster the argument for the practicality of transportation to the private school. It is also important to highlight any precedents or comparable cases where transportation was deemed practical for similarly-situated private schools and/or students, which can underscore the reasonableness of the district’s decision.
Implications of Hearing Outcomes
Initiating an appeal under ORC 3327.02 is not just about advocating for one student’s transportation needs; it can have broader implications for other families within the district. If the appeal is successful and transportation is mandated, the district must continue to provide transportation services. This sets a precedent that benefits not only the appealing family but other families facing similar challenges.
However, if the appeal is denied and transportation is deemed impractical, this decision becomes binding. This means that neither the appealing family nor any other family in the district attending the same private school can appeal the district's decision regarding transportation so long as the facts remain comparable. It will be important for a family to seek legal counsel to assist with presenting a strong case, navigating procedural challenges, and safeguarding the overall rights and education of the student during this process.
Written by attorney Renee Stromski at Abdnour Weiker, LLP
Special Education Basics: The Difference Between IEPs and 504s
Most parents of children with disabilities do not have extensive experience advocating for accommodations within their school system. In an ideal world, a school would promptly and properly identify the needs of students with disabilities and work to ensure parents understand their options. Since this ideal is not always upheld, it is important to understand the core tenets of special education law. One of the most common issues parents run into is understanding the difference between an Individualized Education Program (IEP) and a 504 Plan. Both IEPs and 504 Plans offer formal assistance and accommodations for K-12 students who are struggling in school. However, there are some key differences between the two.
An IEP is a written program that provides with specificity what, if any, free special education resources, services and supports will be put into place to meet your child’s unique needs. This includes any specialized instruction your child may engage in. The written IEP will also set specific learning goals for your child. The underlying law that applies with an IEP is the Individuals with Disabilities in Education Act (IDEA). This is a federal law focused on special education for children with disabilities.
A 504 Plan is a plan established by the school to determine what free supports and accommodations the school will put into place to ensure your child can learn alongside their peers in the classroom. Unlike an IEP, there is no standard 504 Plan and a 504 Plan need not necessarily be a written document - although most schools do produce written plans. A 504 Plan does not typically set specific learning goals like an IEP does. The underlying law that applies with a 504 Plan is Section 504 of the Rehabilitation Act of 1973. This is a federal civil rights law that focuses on stopping discrimination against people with disabilities.
Under the IDEA, a parent or guardian must give written consent before a child is evaluated for IEP eligibility and give written consent before the school can begin implementing the services described in the IEP. Under Section 504, a parent must consent to an evaluation but it does not have to be in writing. An IEP must be reviewed at least once a year, and a child on an IEP must be re-evaluated every three years in order to determine if services are still needed. For a 504 Plan, the rules vary by state although most schools loosely follow the same timeline as an IEP.
So, how do you determine which of these two options would best suit your child? In order to qualify for an IEP, a student’s school performance must be adversely affected by one of thirteen qualifying disability categories under the IDEA. The child must need specialized instruction in order to progress in school. Conversely, to qualify for a 504 a child need only have any disability that interferes with the ability to learn and progress in a general education classroom setting. The disability must substantially limit one or more basic life activities for the student. Because the requirements to qualify for an IEP are stricter than those for a 504 Plan, a child who does not qualify for an IEP may still qualify for a 504 Plan.
If you think your child might need an IEP or a 504 Plan, reach out to your school administrators and request an evaluation for your child. If you have questions about your child’s IEP or 504 Plan, contact an education advocate or attorney.
Written by education attorney, Megan Mitchell at Abdnour Weiker, LLP
www.Lawyers4Students.com
Understanding the Basics of Open Enrollment in Ohio: FAQs for Parents and Guardians
In this article, we address the frequently asked questions (FAQs) that parents and guardians commonly inquire when contemplating open enrollment for their children in Ohio. Whether you're exploring educational alternatives or seeking to understand the implications of such a decision, these FAQ responses aim to provide clarity and insight into the open enrollment process.
What is open enrollment?
Created in 1989, open enrollment, also known as inter-district enrollment or intradistrict transfer, allows students to enroll into another school district by following that district’s open enrollment policies and procedures. Students enrolled under an open enrollment policy must be allowed to attend tuition free.
Who is eligible for open enrollment in Ohio?
Eligibility criteria vary by district, but generally, students who reside within Ohio and meet specific residency and enrollment requirements can apply. For example, a student must be enrolled in their resident home district to participate in open enrollment.
What is the application process for open enrollment?
School districts are responsible for creating their own applications and procedures for open enrollment, which should be adopted by the district’s Board of Education and included in Board policy. The Ohio Department of Education annually updates their listing of open enrollment policies in Ohio school districts, which can be found here.
Parents and guardians typically need to complete an application form provided by both the home and receiving districts. The application may require supporting documents such as proof of residency. Further, students must apply for open enrollment on an annual basis. Though the receiving district may limit enrollment due to capacity or eliminate open enrollment in following years, students enrolled in the previous year when open enrollment is continued must be given priority.
Is there a deadline for applying for open enrollment?
Deadlines vary by district, so it is important to check with both the resident and receiving districts for specific dates. However, the Ohio Department of Education has suggested the following timelines:
May 1 - Open enrollment applications are due in the superintendent’s office of the district considering open enrollment students.
June 15 - School districts inform parents/guardians whether the student has been accepted through open enrollment.
June 30 - Parents/guardians notify the school district whether or not their child will attend the district under open enrollment.
Will transportation be provided for open enrollment students?
The receiving district is required to provide transportation to the student, but only from an existing bus stop within the district and only for the same grade levels that they transport their resident students. Transportation from outside the district is the responsibility of the parents or guardians.
Will my child be guaranteed enrollment in the receiving district?
Admission is typically subject to space availability and other factors determined by the receiving district's policies. There may be instances where applications are denied due to capacity constraints. A student can also be refused in order to maintain racial balance in a particular school building, and the district must specify criteria used to determine racial balance in its Board policy. However, a school district may not discriminate against any student because of a disability condition; nonetheless, special education students may still be refused admission if the district does not have the available services necessary to meet the needs of the student’s Individualized Education Plan (IEP).
Can my child participate in sports or extracurricular activities at the receiving district?
Policies regarding participation in extracurricular activities vary by district. Further, if a student wishes to change schools through open enrollment, the student should consult with the school administration and follow the guidelines for athletic eligibility as established by the Ohio High School Athletic Association (OHSAA).
What are the benefits of open enrollment for my child's education?
The decision to open enroll in another school district should be carefully considered based on your child's individual needs, interests, and educational goals. Parents and guardians should consider how the curriculum, extracurricular activities, and other aspects of the educational experience may differ between districts. It is also essential to be aware of any potential impacts on graduation requirements or transfer credits.
Parents and guardians considering open enrollment should contact both their resident and receiving districts for additional information and guidance tailored to their specific circumstances.
Renee Stromski is a Student Rights Attorney in Ohio with Abdnour Weiker, LLP
Title IX Requires Parity in Athletic Programs (k12)
Background
Title IX is a federal civil rights law that states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Therefore, if your school receives federal funding, all programs and activities operated or sponsored by the school, including its athletic program, are covered by Title IX.
Evaluating your school’s athletic program
If your school is covered by Title IX, it must provide equal opportunity based on sex. This requirement includes your school’s athletic program and extends to club, intramural, and/or interscholastic teams. Equal opportunity in K-12 athletic programs is measured in two ways which are explained in the evaluation below.
MEASURE 1: Benefits, opportunities, and treatment
The first step in evaluating your school’s athletic program is determining whether your school offers equivalent benefits, opportunities, and treatment, which apply to the following categories:
Equipment and Supplies
Does your school provide athletic gear of equivalent quality, quantity, suitability, condition, and availability for athletes on boys and girls teams?
Scheduling Games and Practice Times
Do boys’ and girls’ teams both have a reasonable opportunity to compete before an audience? For example, if all girls’ games are scheduled for Sunday mornings when all boys’ games are scheduled for Friday nights, the girls’ teams likely do not have the same opportunity to compete before an audience.
Do boys’ and girls’ teams play an adequate number of regular season games or other competitions? Further, are the number and length of practice sessions equivalent for teams in the same or similar sport?
Finally, are practice times equally convenient for both boys’ and girls’ teams? For example, always scheduling practice for the girls’ swim team at 5:00am when the boys’ swim team is always scheduled for practice at 7:00am would not likely provide equally convenient practice times.
Travel and Daily Allowance
Do boys’ and girls’ teams use equivalent modes of transportation when traveling to away games? Do they have equivalent accommodations when traveling overnight? Finally, do they receive equivalent meals or meal allowances (if offered)?
Coaching
Do boys’ and girls’ teams have equivalent coaches with equivalent qualifications, and are the coaches available for equivalent amounts of time?
Do coaches of boys’ and girls’ teams receive equivalent compensation? If not, can your school justify the difference in pay using factors that are nondiscriminatory?
Finally, do coaches of boys’ and girls’ teams have equivalent “other duties” such as teaching vs. full-time coaching?
Locker Rooms, Fields, Courts, Other Facilities
Are the boys’ and girls’ locker rooms equivalent in quality and size? Additionally, are the conditions of playing fields, courts, pools, and other athletic facilities equivalent? For example, is there equivalent maintenance, access to restrooms, availability of spectator seating, scoreboards, lighting, and other amenities?
Medical and Training Facilities and Services
Are training and conditioning facilities equivalent for boys’ and girls’ teams, and is there equal access to these facilities? Similarly, is there equivalent access to medical and training personnel/services?
Publicity
Does your school provide equivalent coverage of boys’ and girls’ teams and/or athletes on its website, social media, or other publicity? Further, are cheerleaders, pep bands, and drill teams are provided equivalently?
Finally, it is important to note that if your school receives unequal support for either boys’ or girls’ teams through booster clubs and/or parents, it is your school’s responsibility to ensure boys’ and girls’ teams remain equal despite the difference in outside financial support. If your school does not take steps to remedy the inequality, this may indicate a potential Title IX violation. Moreover, if throughout the evaluation you answered “no” to any of the questions regarding benefits, opportunities, and treatment, this may indicate a potential Title IX violation as well.
MEASURE 2: Meeting students’ athletic interests and abilities
The second step in evaluating your school’s athletic program is determining whether your school is fulfilling its duty to meet students’ athletic interests and abilities. Your school can choose one of three options to demonstrate that it fulfils that duty.
Substantial Proportionality (Option 1)
This option looks at whether the percentage of girl and boy participants on athletic teams are about the same or “substantially proportionate” to the percentage of girls and boys enrolled at the school. If this is the case, your school can likely use option one to show its athletic program provides equal opportunity under Title IX. However, if there is disproportionality, your school must show that there is not enough interest and/or ability among students to form a viable new team for the sport in question. If there are enough students to form a viable new team, then Option 1 would not be available to your school.
History and Continuing Practice (Option 2)
This option looks at whether your school can show it has a history and continuing practice of expanding its athletic program to respond to the interests and abilities of underrepresented students. Historically, girls were underrepresented in schools’ athletic programs, and schools used this option as they expanded their girls’ programs. However, when either girls or boys have been, and remain underrepresented in your school’s athletic program, if your school has a history and continuing practice of adding or expanding teams to accommodate expressed interest, your school can likely use Option 2.
Interests and Abilities of Students (Option 3)
The third and final option looks directly at interests and abilities of students. This option asks whether your school can show that it otherwise meets the athletic interests and abilities of the underrepresented sex, despite disproportionality existing within its athletic program? For example, is there is an unmet interest in a particular sport that is not offered at your school? Is there enough talent and skill among the underrepresented students to sustain a team in that sport? Finally, are there other schools in the area currently competing in the sport? If so, your school probably cannot use Option 3. However, if there is not enough interest or ability to sustain a viable team in the sport, your school can likely use Option 3 to show that it provides equal opportunity despite the apparent disproportionality.
What to do if you think your school’s athletic program violates Title IX
Students, parents and guardians, employees, or other members of the school community who believe their school may be providing unequal athletic opportunities based on sex may file a complaint through their school’s grievance procedures. Every school district covered by Title IX is required to prominently display contact information for the Title IX Coordinator, who can provide information about the school’s grievance procedures. The Title IX Coordinator is responsible for overseeing all Title IX complaints in your school or district, including for unequal athletic opportunities. You should be able to find their contact information on the school or district website as well as in student and employee handbooks and catalogs.
Additionally, anyone can file a complaint with the OCR on their own or with the help of an attorney. This includes students, parents and guardians, employees, coaches, athletic directors, community members, and others who experience or suspect discrimination in education programs or activities, including in a school’s athletic program. The OCR will then investigate the complaint and perform an evaluation similar to the one covered throughout this article. If a violation exists, the OCR will step in to remedy the issue and enforce Title IX.
Josh Sollenberger is a Student Rights Attorney at Abdnour Weiker, LLP
www.Lawyers4Students.com
Student Privacy Rights Under FERPA: What To Do If Your Student’s Privacy Is Violated
Most parents are aware that their students have some privacy rights that schools must take appropriate action to protect. However, many parents are not aware of what establishes those privacy rights and, perhaps more important to parents, what can be done to protect them.
The Family Educational Rights and Privacy Act (FERPA) was adopted in 1974 as a Congressional response to the abuse of student records nationwide. FERPA serves two main functions: 1) guarantee access to students records for both students and parents; 2) limit third-party access to student records.
When processing a records request, a school must determine whether the materials requested qualify as education record materials. An “education record” includes records, files, documents and other materials, which: (1) contain information related to a student; and (2) are maintained by an educational institution. This includes things like a student’s academic work, test scores, psychological records, and family background. An education record does not include things like personal notes of a teacher or counselor, personnel records or law enforcement records.
So what happens when a student’s school releases part of their education record to a third party in violation of FERPA? One of the most common questions we receive is how parents can sue their child’s school for violating FERPA. Unfortunately, they cannot. FERPA creates no private right of action in the event of a school violation, meaning individuals cannot sue for a violation in court. Instead, in the event of a FERPA violation, a parent or student may file a Complaint with the Student Privacy Policy Office (SPPO) of the Department of Education alleging a violation.
A Complaint must be filed within six months of the violation, or within six months of when parents first knew or should have known of the violation. In this process, timeliness is key. Following a complaint, the SPPO will determine whether the school violated FERPA, and whether the school has a practice or policy of violating FERPA.
If the SPPO finds that a school has a practice or policy of violating FERPA, SPPO will then provide steps that the school must take to comply and provide a reasonable period to comply. If a school still does not comply, SPPO may withhold further payments made under any federal program and either issue a cease-and-desist letter or terminate federal funding.
Although there is no private cause of action guaranteed under FERPA it is still important that parents make their voices heard through the SPPO Complaint process. When facing the restriction or elimination of federal funding, schools will typically clean up their act with regard to maintaining FERPA-protected information. If you believe your child’s private, FERPA-protected information has been wrongfully distributed by their school, we encourage you to file a complaint with the SPPO and make your voice heard.
For more information about FERPA, check out the Special Education Legal Clinic’s FERPA video: SELC Understanding FERPA. Further SELC Workshops on other topics are also available.
Megan Mitchell is an education attorney in Michigan at Abdnour Weiker, LLP
www.Lawyers4Students.com
Michigan must extend right of child sex assault survivors to sue
In recent years, Michigan has become a poster child for shocking examples of large-scale sexual abuse of children and young adults, as the horrific crimes of Larry Nassar at Michigan State University and Robert Anderson at the University of Michigan have come to light. Countless other survivors, whose abusers are not public figures, have gone unrecognized in the media.
While the Michigan Legislature made a temporary exception for Nassar’s victims, the state’s current statute of limitations for survivors of childhood sexual assault is frustratingly narrow. Survivors can only file civil lawsuits until they are 28 years old — one of the most restrictive policies in the country. That means that too many survivors are denied access to justice and the opportunity to hold their abusers accountable.
As an attorney who has dealt with many cases of childhood sexual assault — and as a long-time board member of The Firecracker Foundation in Lansing, which provides holistic healing services for children who have experienced sexual trauma — I’ve seen firsthand how this restriction prevents valid claims from going forward.
Many victims of sexual assault can take years to process their abuse. In fact, the average victim of child sex abuse is 52 years of age by the time they report what happened to them, according to Child USA, a national nonprofit that fights to prevent child abuse and neglect. Tragically, the Department of Justice estimates that 86 percent of child sexual abuse goes unreported, due to trauma, power dynamics and institutions that protect abusers.
Thankfully, the Michigan Legislature is finally on the cusp of taking consequential action. A new set of bills, introduced by State Rep. Julie Brixie of Meridian Township in 2023, would have extended the civil statute of limitations, allowing victims of childhood sexual abuse to file claims until they are 52 years old. The bill also included a two-year amnesty period, effective after the law is enacted, that would have allow anyone to file lawsuits against their abusers, no matter how long ago the abuse took place.
Similar bills have been introduced in past sessions of the state legislature, only to languish due to fierce opposition from the very institutions that protected and enabled abusers, such as universities, churches and other organizations concerned with their financial liability, according to reporting from the Associated Press. Unfortunately, the bills did not make it through the legislative process in 2023.
That’s shameful. We can’t let it happen again.
Childhood sexual abuse has a deep and long-lasting effect on survivors. Survivors are frequently diagnosed with depression, anxiety and post-traumatic stress disorder. Many have difficulty forming healthy romantic relationships. Self-harm and suicide attempts can result. The economic impact of this type of abuse can be devastating as survivors find themselves unable to maintain steady employment. Our state has a responsibility and an obligation to give survivors the tools they need to heal and to provide an avenue for authentic and meaningful justice.
For too long, Michigan has failed survivors of child sexual abuse. These bills are expected to be reintroduced in the 2024 legislative session. They represent a huge first step toward bringing Michigan in line with numerous other states that protect the rights of abuse survivors. It’s the least we can do for those who have had so much taken from them.
Liz Abdnour is a partner at Abdnour Weiker, LLP
www.Lawyers4Students.com
Do I Need an Attorney, an Advocate, Both or Neither?
When do you need a special education attorney versus a parent advocate?
Federal and state laws require school districts to find and identify children with disabilities. Parents can request that their child be evaluated, and schools must respond appropriately. Once children have been identified, the schools are required to determine if they are eligible for special education services, and if they are, to provide those services in an appropriate manner.
In many cases, and with the right information, parents can advocate effectively for their child in the special education setting. The special education process was set up to be relatively non-adversarial and to allow parents to be members of the IEP team and collaborate with schools. However, some school districts push back when parents question their decisions, fail to truly inform parents of their rights under IDEA and Section 504, and fail to identify, evaluate or provide appropriate services to children with disabilities. If you are experiencing push back, you suspect something is wrong but cannot get your school to listen, or you believe your child is not getting services that allow him or her to progress appropriately, it may be time to call for help.
Your next decision is whether to call a special education attorney or parent advocate.
Abdnour Weiker, LLP has both advocates and special education attorneys to handle cases. Our advocates are many times more financially affordable to families, typically billing at 50% of the attorney hourly rate. Another benefit to hiring Abdnour Weiker, LLP is that you can start with an advocate but if the situation ever progresses to needing an attorney, our attorneys are already up to speed and familiar with your case. That means less time transitioning from an advocate to an attorney, and less money spent by the family.
Both advocates and attorneys should have a solid understanding of the IDEA and 504 frameworks at the state level, disabilities, educational theories and practices, and school environments. They should be aware of appropriate interventions for children with disabilities, be able to connect you with resources and services outside the school, and be adept at effectively communicating with school districts.
Here are some tasks that BOTH special education attorneys and advocates should be able to do well:
Evaluate initial and triennial Evaluation Team Reports
Advocate for and help draft appropriate and effective IEPs
Advocate for Section 504 eligibility and help draft appropriate and effective 504 plans
Advocate for Independent Educational Evaluations
Evaluate and advocate for Functional Behavior Assessments & Behavior Intervention Plans
Advocate for students with behavioral disabilities and protect those students when schools want to discipline them
Understand and advocate for effective progress monitoring
So, when should you consider a special education attorney?
Advocates and attorneys should be able to evaluate your case to determine if you need legal or advocate assistance. However, the following may be red flags to alert you that an attorney may be needed:
Your child’s needs concern specific areas of law such as placement outside of the school, your legal rights of confidentiality, etc.;
Your child faces expulsion and/or criminal charges for conduct within the school;
The school has brought in an attorney to help them, or you need to answer a letter written by an attorney; or
You need to move beyond advocacy to file a formal complaint or due process with the Ohio Department of Education, or a complaint with the Office of Civil Rights.
The best way to determine if you need an advocate or attorney is to call one and ask. A responsible advocate will tell you when you need an attorney, just as a responsible attorney will tell you when you can use an advocate. Make sure they listen more than they talk – the hallmark of effective advocacy is in their listening skills!
Questions? Call us at 614.745.2001 or visit www.Lawyers4Students.com
Board of Education Candidates in Ohio Can Be Surprised by State Law Disqualifying Some Candidates from Serving
School board elections are incredibly important to voters because of the direct impact that these elected officials could have on a family. Given the importance of these elections, it is surprising that one Ohio law disqualifying board of education candidates from serving on the board is not more known and understood.
According to Section 3313.33(B) of the Ohio Revised Code, no school board member shall have, “directly or indirectly, any pecuniary interest in any contract of the board.” What is a pecuniary interest?
In a 2014 Opinion, the Ohio Attorney General defined a “pecuniary interest” as simply an interest involving money. This law is certainly triggered when a school board member owns a company that does business in some capacity with the school district in which they serve. This makes sense.
However, this law also prohibits a school board member from being employed at a company that does business with the school district. In a 1999 Opinion, the Ohio Attorney General determined that a mere employment relationship is enough to trigger this rule. This is the case even if the employee’s specific duties and compensation are not directly linked to the contract with the district. The OAG reasoned that the existence, operation, and staffing level of the employer may be affected by the funds that are received from the school district. Even a pecuniary interest that is “small” and “indistinct” is enough to bar these relationships.
So, what happens when a school board member is simultaneously employed by a company that does business with the school district? In the same 2014 Opinion, the OAG explained that whenever a board member takes action in any matter in which he/she has a pecuniary interest, that action is void. Depending on the nature of the matter, this can have a substantial impact on the school district in which the member is serving.
For this reason, it is imperative that board of education candidates know the law and understand whether it disqualifies them from serving on the board of education.
What College Students Should Know About Off-Campus (Mis)Conduct
Most students know that their college or university can impose sanctions for their on-campus misconduct. What students may not know, however, is that their actions off-campus, including at home or on break, could also lead to sanctions.
Colleges and universities have expressed an interest in regulating students’ off-campus behaviors for a variety of reasons. First, universities want to protect their reputations as reputable institutions of higher learning and may discipline students for their off-campus misconduct to deter future behaviors that are contrary to their values and/or breach their codes of professional conduct. Second, certain kinds of off-campus behavior pose risks to other students’ safety and well-being—such as underage drinking, harassment, discrimination, violence, and drug abuse— and universities intervene to protect the campus community at large from these threats. Lastly, as social media use expands, it is increasingly difficult for universities to tell where on-campus behavior ends and off-campus behavior begins, so officials will sanction students more readily overall for uploading offensive content or engaging in cyberbullying.
Although no bright-line standard exists to predict precisely when a university will exercise jurisdiction, it is generally understood that the university disciplinary process can come into play where the student’s off-campus conduct “impacts the mission” of the institution or “causes substantial disruption” to the university community. As long as the school can demonstrate that there is a link between the off-campus behavior and the on-campus environment, it is permissible for the school to apply its code of conduct to these incidents.
However, it is important to know that, as of 2020, Title IX coverage does not extend to non-school-sanctioned activites occurring off-campus. Since its enactment in 1972, Title IX has prohibited sex-based discrimination, including sexual harassment, in educational activities. Under the 2020 regulations, the jurisdictional scope of Title IX has been narrowed, providing that if the alleged conduct occurs beyond the scope of an educational program, the school must dismiss the Title IX complaint. The school may still initiate its own disciplinary investigation, however, based on its own code of conduct.
Alternatively, crimes committed in a student’s hometown, while away on spring or summer break, or almost anywhere else, can follow students back to campus. This is because most schools consider their students to be representatives of their community no matter where they go. In other words, students are expected to always live in adherence to their institution’s values and morals. This is especially true for graduate or professional students. Universities can easily learn of students’ arrests or citations. So, students should err on the side of caution and be prepared for discipline that could arise from off-campus criminal acts.
Overall, university students are often held responsible for conducting themselves appropriately whether they are at home, school, or elsewhere. Whatever they may be facing, students are always encouraged to seek out legal counsel to guide them through the disciplinary process and to make sure their rights are protected at all stages of the proceedings.
Five Reasons That College Students Should Have an Education Attorney on Retainer
Going to college is an exciting time in a young person's life. It's a time of growth, learning, and independence. However, it's also a time when students may encounter legal issues they never anticipated. That's why having an education lawyer on retainer during college can be a wise decision. In this article, we'll explore the top five reasons why college students should consider having a lawyer readily available.
Legal Protection for Common Student Issues: College life can bring about various legal challenges, such as housing disputes, cheating allegations, code of conduct hearings, or even minor criminal matters. Having an education lawyer on retainer ensures you have expert advice when these issues arise. An education attorney can help you navigate the complexities of university policies and hearings, landlord-tenant and rommmate disputes, and even represent you in court if necessary.
Academic and Disciplinary Matters: College students can sometimes find themselves in situations where they face academic misconduct allegations or disciplinary (or "code of conduct" actions). College is much different than high school and the sanctions for misconduct can be severe. An education lawyer can assist you in understanding your rights, preparing your defense, and ensuring that the university follows its own procedures during disciplinary hearings.
Contract Review: Students often enter into agreements while in college, like leases, rental agreements, or employment contracts. A lawyer can review these contracts to ensure they are fair and protect your interests. They can also advise you on your rights and responsibilities under these agreements.
Criminal Charges and Offenses: Sometimes, students may find themselves on the wrong side of the law, whether it's underage drinking, drug possession, or another criminal offense. A lawyer can provide essential legal counsel, help you understand the potential consequences, and work on your defense strategy if needed. An education attorney can help you if the criminal matter results in a conduct matter with your college or university.
Preventive Legal Advice: Having a lawyer on retainer isn't just about reacting to legal issues; it's also about preventing them. A lawyer can provide guidance on how to stay within the bounds of the law. They can advise you on matters that may carry legal risks. Additionally, a lawyer can educate you on your rights, ensuring you understand how to protect yourself legally in various situations, from new business ventures to hosting parties to employment matters. This knowledge can be invaluable in avoiding legal troubles in the first place.
Your college's office of Student Legal Services may be able to help in certain, limited circumstances, but not when the opposing party is the university itself (like in code of conduct or academic misconduct proceedings) or another student at the university (like in a roommate dispute or Title IX hearing). Student Legal Services offices are operated by the college, and therefore they may have a conflict of interest with matters involving the college itself or other students at the college.
In conclusion, college can be an amazing time for personal and academic growth, but it's also a period when young adults may face unexpected legal challenges with serious implications. Having a private education lawyer on retainer can provide college students with a safety net and peace of mind. Lawyers can help you navigate legal issues, protect your rights, and offer guidance to prevent problems from arising in the first place.
The education lawyers at Abdnour Weiker, LLP are here to help. Our mission is to protect the rights and futures of students and educators. We operate in Ohio, Pennsylvania and Michigan.
www.Lawyers4Students.com
Important Considerations for College Students When Using University Student Legal Services
University student legal services can be a cost-effective option for students seeking guidance and representation for routine legal matters such as traffic tickets, criminal defense, landlord-tenant disputes, employment issues and more. These university-operated services often “pool” the per-semester fees they collect from students broadly to fund the representation for the students they ultimately represent. Therefore it is a great value for students who end up needing the service. These offices are often staffed by attorneys and/or law students supervised by licensed attorneys. This service can be very beneficial, especially to students who do not have the means to hire private attorneys.
However, it is very important for college students to recognize the limitations of student legal services and the potential conflicts of interest that may arise. This happens when the opposing party in your matter is the university itself, an employee of the university, or a fellow student.
1. University legal services cannot assist you when the opposing party is the university itself.
First and foremost, university legal services cannot (and should not) assist you when the matter involves the university. It is very common for students to find themselves involved in proceedings, hearings or other disputes with their own universities. This could be in the form of academic misconduct or code of conduct hearings, university housing issues, in-state residency appeals for out-of-state students, Title IX hearings, grade appeals or even academic dismissals.
A conflict of interest arises when an organization has multiple interests that could potentially compromise its ability to fulfill the obligations impartially. When it comes to student legal services, the potential for a conflict of interest arises from the fact that these services are typically funded and/or operated by the university itself. The university's primary mission is to protect its own interests, which does not align with the interests of a student in a legal dispute against the university. Therefore, a conflict of interest exists in providing representation to a student when the opposing party is the university — or an employee of the university such as a professor or teaching assistant. To be sure, most legal services offices clearly inform students that they cannot represent them when the university or university employee is a party to the dispute. It is better for the student to seek private counsel.
2. University legal services may not be able to assist you when the opposing party is another enrolled student.
Legal matters also occur frequently for students against other students enrolled at the university. These may occur in the form of personal injury matters, car accidents, contract disputes, intellectual property disputes, roommate disputes, sexual assault claims and others.
In cases such as this, the student legal services office will likely have a conflict of interest, which is especially true if the opposing student has access to the same representation from the student legal services office. If the student legal services office does offer representation to you, be sure to ask your apoointed attorney questions about any existing conflicts — or conflicts that may arise as the matter progresses. Students should proceed very cautiously in using student legal services in these situations, to be sure that no conflict exists with the opposing student.
3. Always seek independent legal advice.
If you are facing a legal issue against your university or against a university employee, you should absolutely consult with a private attorney before taking an action that would jeopardize your rights or ability to challenge a decision later. You should also exercise caution when the matter involves another student at the university. When seeking private counsel, be sure to seek a law firm with experience in education law and student rights, such as Abdnour Weiker, LLP.