Whenever a due process hearing is held pursuant to the provisions of the “Individuals with Disabilities Education Act,” 20 U.S.C. s.1400 et seq., chapter 46 of Title 18A of the New Jersey Statutes, or regulations promulgated thereto, regarding the identification, evaluation, reevaluation, classification, educational placement, the provision of a free, appropriate public education, or disciplinary action, of a child with a disability, the school district shall have the burden of proof and the burden of production.

This law returns the burden of proof to the school district, as was in the case in New Jersey prior to the holding in Shaffer.

Here is a link to the new law.

Posted by Victor J. Medina - Medina, Martinez & Castroll, LLC

The law also created a Commission on Bullying in Schools to review, among other things, the success of the anti-bullying law and to review the training given to teachers, school administrators, and law enforcement. The Commission is also charged with making recommendations on the creation of additional laws and regulations, as it deems necessary.

Here is a link to the law.

Posted by Victor J. Medina - Medina, Martinez & Castroll, LLC

You can read the story here at the Princeton Business Journal.

Posted by Victor J. Medina -
Medina, Martinez & Castroll, LLC

I’ll be speaking with Tony Sciarrillo and we’ll be talking about some of the new laws and cases affecting school districts in New Jersey.

Here’s a link to the program announcement - NJASBO Legal Update Program

Incidentally, our firm will be hosting a booth at the New Jersey School Boards Association Annual Conference in Atlantic City in October. We’ll be in Booth 1123, across from the Apple booth. (Did you know that our firm runs exclusively on Macs?)

If you attended any of the NJASBO A5 training seminars or Legal Update Programs at which I spoke, please stop by and introduce yourself. We’ll be talking about our Policy Customization Services and In-Service Training Programs - and of course, you’ll probably get some trinket for free!

See you there -

Posted by Victor J. Medina of Medina, Martinez & Castroll, LLC

Let’s see if I can’t expand on the issue a little more as one of our clients has recently asked us to look into the matter a little further.

Part of the problem, of course, is that the proposed regulation language, specifically under N.J.A.C. 6A:10, is just a carryover from the regulations adopted under N.J.A.C. 6A:10A in October.  Those regulations were promulgated by the Commissioner of Education under a provision of the 2007 Appropriations Act that allowed the Commissioner to make the Abbott regulations effective upon filing with the Office of Administrative Law, without the typical public comment period.

The procedural aspect set aside for a moment, let’s talk about some of the potentially troublesome aspects of this regulations.

There are two major issues with the anti-nepotism regulations.  First, they are a somewhat overbroad in the way they restrict districts from hiring (or promoting) any relatives of administrators.  The regulations have not defined the term "administrator" and so districts are left to interpret the meaning of the term.  The most logical definition is found in the code of ethics (this is, after all, an ethics-related provision), but using that definition leads to the following irrational results:

•    An applicant for a custodial position in a district elementary school will be denied employment when his sister-in-law is a vice-principal in a district high school;
•    An applicant for a position teaching kindergarten will be denied employment if her brother is a Director of Transportation.

As you can see, this regulation is extremely broad in its application, as it does not tie itself to any supervisory employment relationship between the position sought by the relative and the affected administrator.

The second major issue with the regulation concerns the way it treats "grandfathered" employees.  Although the provision carves out an exception for existing employee-relatives of the district, it restrict that employment to the relatives "current position."  As drafted, the following results will occur:

•    Employees will not advance on the pay scale based on years of service.
•    Employees will not advance on the pay scale for attaining higher educational degrees.
•    Employees will be disqualified from applying for a new extracurricular responsibility, such as serving as the advisor to a student club, when that responsibility will bring additional responsibilities and compensation. 
•    Non-tenured employees will not be able to earn tenure based on otherwise qualifying years of service.
•    A non-tenured employee be ineligible for reappointment at the end of a contract year. 
•    A tenured and experienced teacher who attains his or her administrator certificate will not be eligible to apply for a vice-principal position.

As a practical matter, the regulations draws an irrational distinction between granting an exception for currently employed relatives of board members and administrators and restricting that employment to a holding pattern of sorts.

Instances like this demonstrate the need for a crisis response policy that administrators understand and can follow without much guidance from above.  Affirmative action laws dictate the importance of following up with this young girl if her actions stem from being harassed or bullied. 

HACKENSACK, N.J. (AP) — The ex-principal of Teaneck High School, already facing charges that he engaged in sexual conduct and conversation with a student, may face more charges if questionable photos on his computer are child pornography, authorities said.

Beyond the obvious employment implications of this situation, this highlights the need to have crystal-clear, rock-solid technology policies permitting review of District computers on a periodic basis.

In reading the story, it’s surprising that the District suspended him with pay for 13 months before a trial verdict in a case where it was alleged that he fondled the teeenage boy he and his wife had taken in to adopt. 

Overall, it appears that the District could have done more back in 2003 to avoid the current issue. 

(g) The district board of education shall adopt a nepotism policy that includes the following:
    1. A definition of “relative” that is consistent with N.J.S.A. 52:13D-21.2;
    2. Prohibiting any relative of a board member or administrator from being employed in an office or position in that school district except that a person employed by the school district on the effective date of the policy or the date a relative becomes a board member or administrator shall not be prohibited from continuing to be employed in the person’s current position or, in the case of a reduction in force, in any position to which that person has a legal entitlement;
    3. Prohibiting the chief school administrator from recommending to the board pursuant to N.J.S.A. 18A:27-4.1 any relative of a board member or administrator unless the person is subject to the exception in (g)2 above;
    4. Prohibiting a school district officer or employee from supervising, or exercising authority with regard to personnel actions over a relative of the officer or employee;
    5. Prohibiting a school district official who has an immediate family member who is a member of the bargaining unit from discussing or voting on the proposed collective bargaining agreement with that unit or from participating in any way in negotiations, including but not limited to, being a member of the negotiating team; nor should that school district official be present with the board in closed session when negotiation strategies are being discussed; and
    6. Prohibiting a school district official who has an immediate family member who is a member of the same statewide union in another district from participating in any way in negotiations, including but not limited to, being a member of the negotiating team or being present with the board in closed sessions when negotiation strategies are being discussed, prior to the board attaining a tentative memorandum of agreement with the bargaining unit; once the tentative memorandum of agreement is established, a school district official with an immediate family member who is a member of the same statewide union in another district may fully participate in the process, absent other conflicts.   

(h) In accordance with the N.J.S.A. 18A:55-2, the Commissioner may withhold State aid from school districts that have not demonstrated compliance with the nepotism policy in (g) above. 

The last sections echo the Code of Ethics, but there is a serious ambiguity in the regulations regarding this nepotism policy.  Although an exception has been made for relative that are current employees on the effective date of the policy, it limits that exception to the employee’s "current position." 

It seems clear that a teacher-level employee is prohibited from being promoted to a supervisor position, if they had a relative that was a board member or administrator. 

Well, what happens, for instance, to an employee is that in a non-tenured position?  Will they be permitted to be granted tenure?  Because that is arguably "a promotion" from their current position - they are now the proud owners of a new set of property rights, etc.

In addition, what about the all-too-familiar situation where a married couple works in the same district and one of them moves up to an administrator level.  Does this mean that his or her spouse is forever locked into that lower position, without any opportunity to move up for as long as their spouse is an employee of the same district?

Lots of questions to answer for the Abbott districts, but other districts should take notice.  Items like this are often auditioned on Abbott districts before being implemented across the state.

What will be the impact of this ruling?  Well, I believe that this means that we’ll see a higher level of quality cases move to due process hearings.  Now that the cost of hiring an expert will fall on parents, regardless of whether they are the prevailing party, parents will not needlessly engage the services of an outside consultant, except in cases where there is an absolute need for an additional opinion.

Too often, parents adopts a "let’s see what sticks to the wall" approach to litigating their child’s special education case, figuring that with enough ammunition, they’ll win the case and get those costs repaid.  The goal should, instead, to marshal the evidence necessary to achieve a result, without any expectation that those costs will be recouped and an understanding that such expenses are a necessary cost of seeing the case through to the end.

That said, it’s also right and proper that I give this a new launch because of the launch of my new law firm, Medina, Martinez & Castroll.  That could be the most inartful sentence I’ve written in months but I’m leaving it there because it’s unlikely that anyone but me will read this entire post. 

By way of description, MMC is a law firm based in Pennington, New Jersey, which serves as legal counsel to about a half dozen school districts.  In many cases, we serve as outside general counsel for these school districts, providing legal advice in the area of financial matters, commercial transactions, student discipline, special education, labor relations and policy (to name just a few).  If you’re interested in learning more about my law firm, I encourage you to visit our website and look around. 

As is my policy with our other blog, comments are welcome and appreciated.  It’s my intention to provide the basis for discussion and discourse.  I hope to hear from you soon.

Now, onto the substantive posts…..

- Victor