NYC DOE regulation prohibiting use of school property for religious worship services upheld.

1. School Law: A Year in Review –A review of this Past Year’s Court and Administrative Decisions Affecting Public Education

2. The Bronx Household of Faith v. Bd. Of Educ. of the City of N.Y. 750 F.3d -184 (2d Cir., Apr. 03, 2014) • NYC DOE regulation prohibiting use of school property for religious worship services upheld. • Not a violation of Free Exercise clause • Gov’t not required to fund the free exercise of religion • Regulation not motivated by hostility towards or excessive entanglement with religion

3. Town of Greece, NY v Galloway 134 S.Ct. 1811 (May 15, 2014) - • The United States Supreme Court upheld the right on the part of the Town of Greece New York to begin their meetings with a prayer despite the fact that, historically, the prayers were almost always associated with one religion. Writing for the majority, Justice Anthony Kennedy cautioned against having courts limit the content of prayers to include only religious words acceptable to a majority because “government may not seek to define permissible categories of religious speech.” • The majority opinion acknowledged the growing pluralistic nature of today’s society. “But that circumstance is best addressed by including representatives of many creeds rather than proscribing the content of prayers” so wrote the Court’s majority.

4. Shenendehowa CSD v. CSEA20N.Y.3d 1026 (Feb. 12, 2013) • Bus driver terminated by district after positive drug test • CBA had disciplinary penalties & procedures • Arbitrator ruled inconsistent with CBA; reinstated • Required to consider progressive discipline • Court of Appeals No grounds for overturning arbitration award • Not irrational and did not exceed authority • Agreed that CBA did not require termination • Reinstatement with conditions did not violate public policy

5. Stergiou v. NYC Dep’t of Education106 A.D.3d 511 (2ndDep’t May 14, 2013) • Although a state appeals court disagreed that teachers who face disciplinary charges are absolutely entitled to view the testimony of complaining witnesses, in this case, the court sent the case back for the hearing officer to take testimony from the student witness in the presence of the teacher because nothing in the record indicated the existence of a “compelling competing interest” on the part of the student which might have warranted the teacher’s exclusion during his testimony.

6. Watertown City School District v. Anonymous2014 WL 4783677 (4th Dep’t Sept. 26, 2014) • A tenured teacher facing disciplinary charges may not access extensive student records in order to prepare a defense in the absence of the teacher articulating a factual basis establishing the relevance of the documents to the investigation to show the material bears “a reasonable relation” to that investigation. In this case, the charges of misconduct involve activities outside the classroom and the teacher only made general statements that the records were “highly relevant” to the defense.

7. Gervais and Parobek v. Bd. of Educ. of East Aurora UFSD2014 WL 4783538 (4th Dep’t. Sept. 26, 2014) • Petitioners appealed after their positions were reduced from full time to .4 and .2 FTE and they declined part-time positions district did not place them on PEL. • 4th Dep’t – Petitioners entitled to placement on PEL • Reduction of positions equivalent to abolishing full time position and creating part-time positions • Rejection of part-time positions did not extinguish petitioners’ right to placement on PEL

8. Matter of Brito v. Walcott 115 A.D.3d 544, (1st Dep’t Mar. 20, 2014) and Mauro v. Walcott 115 A.D.3d 547 (1st Dep’t March 20, 2014). • Two tenured teachers found in school during evening in state of undress and compromising circumstances appealed their terminations. • 1st Dep’t remanded both cases for determination of lesser penalty • Not at school in official capacity • No prior discipline • No student witnesses, action between consenting adults • Negative publicity alone does not warrant termination

9. Appeal of Donnellan54 Ed Dept Rep, Dec. No. 16,657 (Aug. 19, 2014 • When two teachers have equal seniority the teacher whose appointment occurred first has greater seniority. • The appointment date to a long term substitute position signifies the commencement of a formal relationship between the employee and the district and teacher whose appointment to long term substitute position occurred first has greater seniority.

10. Kolbe v. Tibbets22 N.Y. 3d (Dec. 12, 2013) • A school district was precluded from changing retiree health benefits by a CBA provision which stated that retiree’s health coverage shall be the coverage in effect for the unit at the time the employee retires, even though the changes corresponded to changes made for active employees.

11. J.G.S. and S.L.S. v. Bellmore-Merrick CHSD slip opinion (Nassau Cnty. May 14, 2014) • A state supreme court ruled that DASA imposes on school districts a duty to regulate harassment, cyber bullying and bullying conduct by its students even when the victim of such behavior is a non-public school student. In this case, the bullied student had formerly been a student in the district and had been the target of bullying.

12. Williams v. Weatherstone and Jordan-Elbridge CSD23 N.Y. 3d 384 (May 13, 2014) • New York State’s highest Court ruled a school district was not liable for injuries suffered by a special education student, who was struck by a passing vehicle when she decided to cross the road while her school bus turned around to pick her up. • IEP called for transportation but did not specify any special busing requirements and only furnished regular transportation.

13. Appeal of Toure54 Ed Dept. Rep, Dec. No. 16,600 (aAgust 28, 2014) • Commissioner overturned election with respect to a partial term to fill a vacancy • Improper handling of absentee ballots created “severe risk of fraud that vitiated fundamental fairness of the election.” • 301 absentee ballots issued 1 business day prior to election • District clerk failed to maintain list of voters issued absentee ballots as required by law • District unable to determine how many absentee ballot applications received, how many ballots issued, whether ballots validly issued, or whether ballots validly cast

14. Appeal of K.L. 53 Ed Dept Rep, Dec. No. 16,627 (June 30, 2014) • Non public school student requested homebound instruction (due to illness could only attend school for 2 hours each day). • Not entitled to homebound instruction while still attending classes at non public school • School district not required to replicate non public school curriculum but consider relevant factors in designing instruction • Criticized school district for failure to take action to enforce compulsory attendance law

15. T.M. v. Cornwall Central School District752 F.3 145 (2d Cir. April 2, 2014) Least Restrictive Environment A federal appeals court with jurisdiction over all districts in New York State ruled that children with disabilities who receive extended year services may be entitled to receive such services in mainstreamed settings if their individual circumstances dictate the provision of such services notwithstanding whether their school districts themselves offer educational programming to non-disabled students during the summer months.

16. C.L. v. Scarsdale Union Free School District744 F.3d 826, (2d Cir. Mar. 11, 2014Least Restrictive Environment/Eligibility A federal appeals court with jurisdiction over all school districts in New York State reversed a decision by the SRO which had denied tuition reimbursement to parents of a student with a disability on the basis that they failed to meet their burden to prove that the private school placement was appropriate. Despite the district’s argument that the parent’s placement was not the least restrictive, the Court found that it is not appropriate to compare the restrictiveness of a parental private placement with that of a public school setting when a school district itself has failed to make FAPE available.

17. Appeal of E.M.F. 53 Ed Dept Rep, Dec. No. 16,538 (Aug. 28, 2013) • Petitioner appealed district’s decision her daughter was not homeless • Claimed sharing housing of others due to economic hardship • Reduction in salary & paying for son’s college tuition • Reasons for moving based on personal choices not type of economic hardship statute intends • No evidence home is temporary shelter or inadequate; no time limit on current living situation

18. B.H. ex rel Hawk v. Easton Area SD2013 WL 3970093 (3rd Cir. Aug. 5, 2013) • Ban of I ♥ Boobies! bracelets violated First Amendment • 3rd Circuit set out 3 part analysis for lewd speech • Plainly lewd speech may be categorically restricted • Speech not plainly lewd but may be interpreted as lewd may be categorically restricted provided cannot plausibly be interpreted as commenting on political or social issues • Speech that is not plainly lewd and can be interpreted as commenting on political or social issues may not be categorically restricted

19. Lane v. Franks134 S. Ct. 2369 (June 19, 2014) • U.S. Supreme Court ruled that the sworn testimony of a public employee in judicial proceedings constitutes protected speech, even if it concerns information learned in the course of employment. • Adverse actions by employer against such an employee can form basis for retaliatory claim alleging violation of free speech rights.

20. Santer v. East Meadow UFSD2013 WL 3970093 (3rd Cir. Aug. 5, 2013) • New York State’s highest court ruled that the First Amendment rights of two teachers were not violated when a school district disciplined them for participating in a union picketing demonstration that created a health and safety hazard for students. The picketing activity in this case consisted of the teachers parking their cars along both sides of the street in front of the school during the time when parents were dropping their children at school necessitating that children be dropped off in the middle of the street. The teachers had previously acknowledged that such activity could be dangerous.

21. Appeal of R.M.54 Ed Dept Rep, Dec. No. 16,643 (Aug. 7, 2014) • Family’s in district residence condemned due to bed bug infestation • July 2013- sharing housing with family members outside the district • Lacked potable running water, appropriate insulation, areas of house did not have electricity or gas, overcrowded • Commissioner ruled patently inadequate residence such as this does not become a fixed, regular and adequate night-time residence merely because of its duration.

22. Appeal of A.V. and S.A.-V. 53 Ed Dept Rep, Dec. No. 16,528 (Aug. 28, 2013) • Petitioners’ son victim of bullying • Ultimately assigned aide to walk with student in halls but student continually evaded monitor in violation of principal’s directives • Short term suspensions upheld- student being victim of bullying does not negate responsibility to follow staff directives and instructions

23. Bradford v. Norwich City School District 3:12-CV-1888 (GTS/DEP), NYLJ 1202671305912, at *1 (NDNY, Decided September 22, 2014). On September 22, 2014, the United States District Court for the Northern District of New York, in the case entitled, Bradford v. Norwich City School District ruled in favor of the school district for its actions of disciplining a student for off campus text messages which he had been sent to another student and which threatened to harm a third student. Despite the parents’ claims that their child had a First Amendment right to correspond in such a manner, the court found (1) there was a foreseeable risk that the speech would come to the attention of school officials, and (2) there was a foreseeable risk that it would materially and substantially disrupt the work and discipline of the school.

24. Appeal of D.F. 53 Ed DeptRep.Dec. No. 16,624 (June 30, 2014) • Commissioner upheld determination to give a student a grade of 0 on a midterm exam because student knowingly brought prohibited cell phone into examination room • Decisions regarding student grading rest with the school board • Numerous notices given to parents and students regarding banned devices • In meetings with parents and administrators student admitted had cell phone and knew he should not

25. Appeal of C.M.52 Ed Dept Rep, Dec. No. 16,439 (Dec. 24, 2012) • Student T.M. was suspended for 3 days for participating in “Kick a Jew Day” • Student witness agreed to speak to principal only in confidence for fear of retaliation • Principal then served as complaining witness at the informal conference • Issue principal did not directly observe alleged behavior

26. Appeal of C.M., cont. • Commissioner expunged the suspension because student’s right under statute to question complaining witnesses was violated • Acknowledged district’s concern to honor confidentiality request • District must work to create environment where students feel safe to work with district officials to address intolerance and discrimination • BUT school district appealed…

27. Application of Vestal CSDslip opinion J. McGrath (Albany Cnty. Sept. 25, 2013) • District argued commissioner failed to consider prior decision D.F. v. Bd. of Syosset CSD • District reasonably considered student to be potentially violent = legitimate basis for not disclosing names of complaining students so as to protect them from potential retaliation • Student still provided adequate due process • Court remanded case to the commissioner to consider whether district’s interest in protecting students outweighs accused student’s right of cross examination

28. Appeal of C.M. II 53 Ed. Dept Rep, Dec. No. 16,583 (January 3, 2014) • As directed by the court, the commissioner reconsidered the case in light of the decision in D.F. v. Board of Education of Syosset Central School District. In Syosset, a student suspended for writing stories where named students were murdered and sexually assaulted, argued his suspension hearing was inadequate because his attorney was not permitted to interview the complaining students. A federal district court found that the district reasonably considered the student to be potentially violent and such conclusion provided a legitimate basis for not disclosing the names of the complaining students so as to protect them from potential retaliation.

29. Appeal of C.M. II 53 Ed. Dept Rep, Dec. No. 16,583 (January 3, 2014) • The Commissioner determined that the School principal reasonably believed protecting identity of complaining students at a disciplinary meeting with parents of a student accused in participating in bullying incident was necessary. • District’s interest in protecting the victim outweighed the parents’ interest in questioning witnesses

30. Appeal of C.B. 54 Ed. Dept Rep, Dec. No. 16,666 (September 5, 2014) • The Commissioner was asked, among other things, to declare that children who are being bullied are not required to provide testimony or participate in the DASA investigations into the alleged bullying. In dismissing this appeal on procedural grounds, this case raises an interesting predicament for districts investigating harassment and bullying complaints in accordance with DASA. An accuser’s unwillingness to participate in an investigation may make it difficult for districts to substantiate claims and contradict the testimony of those accused of bullying, who are unlikely to readily admit their participation.

31. Cold Spring Harbor Teachers Ass’n46 PERB ¶ 4504 (Jan. 9, 2013) • A PERB administrative law judge (ALJ) ruled a a school district committed an improper practice under the Taylor Law when it unilaterally stopped providing food cart service (offering sandwiches, soups, salads, beverages, yogurt, chips, cookies, muffins and other snacks) in the faculty lounge at its secondary school grades 7-12. According to the ALJ, the pre-order service repudiated a prior enforceable verbal agreement between the district and the teachers’ union regarding continuation of the food card service, and the district shoed no legal basis for its unilateral action.

32. Zeno v. Pine Plains CSD702 F.3d 655 (2012) • $1 million award against district- racial harassment in violation of Title VI • Harassed for prolonged period- accepted IEP diploma rather than continue education amidst harassment • Adequate response must be “reasonably calculated” to end the harassment. District response inadequate: • Suspension failed to prevent others from same behavior • 21 mos. before offered racial sensitivity program (attendance was not mandatory) • Did not accept offer of assistance from NAACP or HRC

33. Vergara v. State of California et. al. (June 10, 2014). • Citing to the United States Supreme Court’s historic Brown v. Board of Education decision which declared racially segregated schools to be unconstitutional, the Superior Court of the State of California for the County of Los Angeles upheld a challenge by nine California public school students to the constitutionality of five statutes in the State of California affecting the tenure and seniority rights of teachers. In this case, the Court found that the contested statutes violate the students’ fundamental rights to equality of education by adversely affecting the quality of education they are constitutionally entitled to receive by the state.

34. Harris v. Quinn, U.S. Supreme Court 134 S. Ct. 2619 (June 30, 2014) • In a 5-4 decision, the Supreme Court held that the First Amendment prohibits the collection of agency shop fees in the particular case of home health-care aides, or “personal assistants (PAs)”. who, under Illinois law an employer-employee relationship is secured between the person receiving the care and the person providing it—not the state. Accordingly, the Supreme Court ruled that the employees in this case should never have been required to pay mandatory union fees required of other workers.

35. NYSUT v. State of New York 2014 WL 4809779 (N.Y. Sup. Ct. Albany Cnty. September 23, 2014) • The Albany County Supreme Court dismissed NYSUT’s lawsuit determining that NYSUT had failed to demonstrate that that New York State’s Property Tax Cap legislation was unconstitutional. Property tax cap is not unconstitutional. The Court ruled that the law does not deprive a district of exercising local control because the budget vote itself denotes local control and that the State provided rational basis for adopting legislation, namely, curtailing growth of taxes to retain jobs and businesses in New York. (cont’d)

36. NYSUT v. State of New York 2014 WL 4809779 (N.Y. Sup. Ct. Albany Cnty. September 23, • Nevertheless, the Court permitted NYSUT to amend its complaint to include the recently enacted “tax freeze” legislation which provides a tax credit to property taxpayers in school districts that afopt budgets that do not exceed the cap.

37. Selected Recent Laws and RegulationsAffecting School Districts

38. I. The Common Core Implementation Reform Act- Chapter 56 Part AA of the Laws of 2014 • Annual Professional Performance Review (APPR) Plans (p.1) • Data Dashboard Systems (p.1) • Parental Assistance (p.2) • Professional Development (p.2) • Students Assessments (p.3) • Students with Disabilities and ELL Assessments (p.3) • K-2 Standardized Students Tests (p.3) • Testing Time Limitations (p.3)

39. The Common Core Implementation Reform Act- Chapter 56 Part AA of the Laws of 2014 • Students Assessments • Testing Transparency Report (p.4) • Test Questions (p.4) • Student Promotion and Placement (p.5) • Student Records (P.5) • Chief Privacy Officer (P.6) • Parental Bill of Rights for Data Privacy and Security (P.6) • Data Collection Transparency and Restrictions (P.7)

40. The Common Core Implementation Reform Act- Chapter 56 Part AA of the Laws of 2014 • Breach of Security and Unauthorized Release of Personally Identifiable Information (P.8)

41. II. Other New State Statutory Changes • BOCES (P.9) • Charter Schools (P.9-10) • Conditional Appointments (P.10) • Contracts for Excellence (P.10) • Gap Elimination Adjustment (P.10) • Health Education (P.10) • No Child Left Behind (P.10) • Pre-Kindergarten Programs(P.11) • Purchasing (P.11)

42. II. Other New State Statutory Changes • Real Property Tax Freeze Credit (P.11) • Reserve Funds (P.11) • School Census (P.11) • School District Reorganization (P.11) • Smart Schools Bond Act of 2014 (P.12) • Smart Schools Implementation Act of 2014 (P.12) • Special Education (P.13)

43. II. Other New State Statutory Changes • Teachers (P.13) • Technology Services (P.14) • Transportation (P.14)

44. Bills Waiting Delivery to the Governor • Annual Professional Performance Review (APPR)(p. 14) A10168 would establish temporary provisions for the recalculation of the APPR score of a classroom teacher and building principal who receives an overall composite rating of ineffective or developing for the 2013-14 and/or 2014-15 school years.

45. Bills Waiting Delivery to the Governor • BOCES (p. 15) A9570-B would amend the Education Law to authorize B OCES through June 30, 2019 to enter into leases with nonpublic entities for up to a maximum period of twenty years. Charter Schools (p. 16) A10069 would amend the law relating to the dissolution of charter schools effective immediately.

46. Bills Waiting Delivery to the Governor • CIVIL SERVICE-COMPETITIVE CLASS DISCIPLINE (p. 16) S 7801 would overrule prior judicial decisions and clarify that all members of the competitive class in the civil service are entitled to collectively bargain all matters pertaining to discipline.

47. Bills Waiting Delivery to the Governor • COMPETITIVE BIDDING (p. 17) A8661-A would help school districts expand the number of bidders on contracts requiring competitive bidding. • CPR and AED INSTRUCTION (p. 17) S7096 would require the commissioner of education to make recommendations to the Board of Regents on the adoption of instruction in CPR and SEDs in high school.

48. Bills Waiting Delivery to the Governor • EPINEPHRINE AUTO-INJECTORS(p. 18) S7262-A would authorize schools districts and BOCES et al to provide and maintain on-site in ach instructional school facility , epinephrine auto-injectors for use during emergencies to any student or staff having anaphylactic symptoms whether or not there is a previous history of severe allergic reaction.

49. Bills Waiting Delivery to the Governor • FINGERPRING (p. 18) A9749 would authorize the DMV to forward to the commissioner of education, for purpose of conducting a criminal history record check, the criminal history record and fingerprints of a prospective employee cleared for employment by the commissioner of motor vehicles, upon the request of the prospective employee and DCJS to provide subsequent criminal history notifications directly to the commissioner of education.

50. Bills Waiting Delivery to the Governor • INHALERS (p. 19) A9334 would provide that not only students with asthma, but also those with another respiratory disease that requires rescue inhaler treatment be allowed to carry and use a prescribed inhaler, and self administered rescue medications. • LEVER MACHINES (p. 19) S7371-A would extend through 12/31/15 authorization for continued use of lever voting machines in school district elections and budget votes.