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Posts Tagged ‘#school’

CARES Section 18006 Encourages Schools to Retain Staff to the “Greatest Extent Practicable”

Posted on: April 27th, 2020

By: Tia Combs

As many schools around the country make the final decision to remain closed for the school year, it may be tempting to cut back on staff to save money for what is predicted to be a historic budget shortfall next year. However, the wisdom of that move may be lost when districts consider legislation recently passed by Congress.

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES” Act”). The lengthy piece of legislation gives financial benefits to seven primary groups: 1) individuals, 2) small businesses, 3) mid-size and larger companies, 4) hospitals and public health facilities, 5) children and families, through federal safety net programs, 6) state and local governments, and 7) providers of educational services.

Of particular interest to educational institutions is the Education Stabilization Fund. The fund provides over $30 billion dollars to educational institutions. Roughly $16.5 billion of the fund is allocated for distribution to elementary and secondary schools through the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund. Distribution of these funds are contingent on the educational institutions fulfilling certain labor and employment related requirements. 

In particular, pursuant to Section 18006 of the Act states:

A local educational agency, State, institution of higher education, or other entity that receives funds under “Education Stabilization Fund,” shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruptions or closures related to Coronavirus.

For K-12 educational institutions, this means that they must continue to pay employees and see that contractors (and their employees) are paid to the greatest extent possible and be prepared to explain any failure to do so.  Many state educational agencies have given advised local districts to do what they can to retain workers. For example, the Indiana Department of Education has advised districts: 

In the application for the CARES Act funding, the LEA must attest that it has been paying all employees and contractors during the closure or disruptions related to the coronavirus, or that it will begin doing so immediately. If LEAs are not able to attest to this fact, then it must provide a reasonable explanation beyond reasons related to cash flow (as tuition support has not been reduced) in order to be eligible for the CARES Act funding. IDOE considers the employees and contractors to include, but is not limited to, the following positions: teachers, administrators, counselors, social workers, nurses, paraprofessionals, bus drivers, custodians, food service, and administrative staff.

In light of Section 18006, districts considering staffing reductions should make those decisions in consultation with legal counsel so that the district’s ability to receive these federal funds is preserved.

If you have any questions or would like more information, please contact Tia Combs at [email protected].

Discrimination Suit Over Service Dog Revived By Third Circuit

Posted on: August 23rd, 2018

By: Barry Brownstein

The Third Circuit has revived a lawsuit by the parents of an epileptic girl who claim a Pennsylvania school discriminated against her by barring her service dog.

In 2014, Traci and Joseph Berardelli sued the Allied Services Institute of Rehabilitation Medicine, which operates a school with a specialized program for dyslexic students, after it barred their daughter from bringing her service dog to school to help alert staff to her epileptic seizures. The school claimed the dog would be a distraction, and the Berardelli’s daughter missed many school days when her seizures were bad. When the school finally permitted the service dog to accompany her, the reprieve did not last long, as school officials required that it wear a “special therapeutic shirt designed to decrease allergens” that caused the dog to overheat. The parents’ lawsuit alleged that the school violated the ADA, the Rehabilitation Act, and a Pennsylvania discrimination law.

The United States District Court for the Middle District of Pennsylvania dismissed the ADA and state discrimination claims, ruling that they improperly sought damages.

On appeal, Traci and Joseph Berardelli argued that “reasonable modifications” required under the ADA are substantively the same as “reasonable accommodations” provided for in the Rehabilitation Act, and thus, service animal requirements in the ADA apply to both laws.

The Third Circuit ruled that the district court erred in its instructions to the jury about the Rehabilitation Act claim and improperly disallowed testimony about ADA service animal regulations because that was not the law being considered.  In its enforcement of the ADA, the Department of Justice has ruled that service animals are reasonably permitted to be used by disabled persons in public places as long as they are housebroken, not out of control, and pose no risk to the public.

The Third Circuit ruled that the Rehabilitation Act of 1973 and its progeny the Americans With Disabilities Act of 1990 must be interpreted the same way with respect to reasonable accommodations that must be provided to those with disabilities, including the use of service animals. Thus, under the Rehabilitation Act just as under the ADA, a covered actor ordinarily must accommodate the use of service animals by individuals with disabilities. The Third Circuit also overturned dismissal of the claim made under Pennsylvania discrimination law, ruling that the district court erred because that law does permit damages as a remedy.

If you have any questions or would like more information, please contact Barry Brownstein at [email protected].

Firing a School Cannon Provides Potential Liability

Posted on: May 4th, 2016

By: Wayne Melnick

Georgia law is traditionally favorable to educators when state law claims are brought against them in their individual capacities. If the educator can show their actions were taken as part of a discretionary and not ministerial duty, then Georgia Constitutional official immunity applies to protect the educator from liability.  It is the rare case where a duty is found to be ministerial and not discretionary – but one recent Georgia appellate opinion found such a duty.

In Boartright v. Copeland, a student alleged that during a high school football game, he was assisting in loading and firing a cannon owned by the school district; and that while compressing the gunpowder with a rod, the cannon discharged shooting the rod into the air and permanently injuring the student’s hand. The student sued the superintendent and individual school board members asserting negligence claims on the theory the defendants were collectively liable in allowing the cannon to be present and used in a school safety zone and at a school function in violation of O.C.G.A. § 16-11-127.1 – a portion of the Georgia Criminal Code making it illegal for a “weapon” to be possessed at such locations/functions.  The Code section defines “weapon” in pertinent part as “any weapon designed or intended to propel a missile of any kind” and although it does specifically include pistols and revolvers, it does not specify whether cannons are included. That same Code section also provides an exclusion for weapons “used for classroom work.”

In reversing a grant of official immunity on a motion to dismiss, the Boatright court had little problem determining a cannon to be a “weapon” within the definition provided above.  The appellate court also readily disagreed with any argument that the football field qualified as “classroom work.” Although the court was willing to accept that “classroom work” did not always have to be restricted to a classroom, the facts presented showed the activity in question not to “arise from the classroom environment and with the authorization of the classroom teacher.”

Addressing the question of whether the plaintiff had sufficiently pled the alleged breach of a ministerial duty (thus making it a case where official immunity would not apply), the court found that plaintiff had alleged such a duty because the cannon in question could be conceivably within each defendant’s individual “control. As this case was decided at the motion to dismiss stage and not at summary judgment, the court accepted the facts as alleged in the complaint as true.  This leaves the door open for the defense to, in the future, present the issues at summary judgment on a more fully developed record.

Finally, despite precedent that provided that individual school officials have official immunity when interpreting the applicability of school policies to situations as they occur, the court was unwilling to provide such immunity to school officials who made a good-faith but erroneous interpretation of a criminal statute when it was believed the application of the statute to the present situation was “absurd.”

Based on recent rulings, it is unsurprising that the Georgia Court of Appeals continues its attempts to chip away at official immunity – especially at the motion to dismiss phase of the proceedings. Currently, there is a petition for certiorari pending before the Georgia Supreme Court to review this ruling. So, we will continue to keep an eye on this case and see the effect it will have on the defense of teachers and administrators in Georgia.  For now, however, it is probably best to curtail the firing of any cannons on school property.