What is “Serious Bodily Injury”
In 2004, the Individuals with Disabilities Education Improvement Act of 2004 (IDEA) was amended to allow school districts to implement a 45-day alternative placement to the extent that a special education student inflicts “serious bodily injury” on another individual. The term “serious bodily injury” is defined as being inflicted with an injury or illness that involves: (1) a substantial risk of death; (2) extreme physical pain; (3) protracted and obvious disfigurement; or (4) protracted loss or impairment of the function of a bodily member, organ or mental faculty.
Personnel Matters
Recent Cases of Interest
Sandra T.E. v. Sperlik, 639 F. Supp. 2d 912 (N.D. Ill. 2009)
In 2005, Robert Sperlik, Jr., an elementary music school teacher, was arrested and entered a guilty plea for sexually abusing elementary students. During a subsequent search of his personal belongings, the police found bondage pornography. Five years prior to his arrest, several students wrote a note to the principal indicating that Sperlik had used duct tape to restrain students while he touched the students’ breasts and genitals. The then principal warned Sperlik against “inappropriate touching” and told him to keep his door open while teaching but did not report the accusations to the Illinois Department of Children and Family Services. The former principal and other school district personnel were later named in a civil lawsuit seeking redress under Section 1983 of the Civil Rights Act of 1871. The victims and their parents showed that the former principal had provided the victims’ parents with a watered-down version of the students’ allegations, lied to her fellow school officials about the extent of the teacher’s actions, and failed to impose any discipline beyond warnings. That evidence was held to be enough to create a fact issue, and the court denied the district’s request to dismiss the case. Therefore, the victims’ and their parents’ claim will go forward to trial.
Ekstrand v. School Dist. of Somerset, 583 F.3d 972 (7th Cir. 2009)
Renae Ekstrand, an elementary teacher, informed her school’s principal that she had seasonal affective disorder (i.e, a form of depression) and would have difficulty functioning in a room with artificial light rather than natural light. She repeatedly requested an alternate room with natural light before and after the school year began. Even though there were two alternate rooms available, the principal refused to assign one to Ekstrand. Ekstrand sued the district under the Americans with Disabilities Act (ADA), alleging that the district discriminated against her on the basis of her disability when it refused to provide a medically necessary and reasonable accommodation. The court ordered the case to proceed to trial for the jury to decide whether the teacher’s requested accommodation would impose an undue hardship on the district. Such undue hardship would excuse the district from having to grant the teacher’s request to switch classrooms.
Falchenberg v. New York State Dept. of Educ.,2009 WL 1585778 (S.D. NY 2009)
After failing to pass a state teacher certification exam, a teacher sued the New York State Department of Education alleging that it discriminated against her on the basis of a disability in violation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973. The teacher — who had been diagnosed with dyslexia — claimed that she should have been allowed to take the written certification exam with a dictionary, granted extra time to take the test and frequent breaks during it, and the option to take the test as an oral exam. The court found that the teacher’s requested accommodations were not reasonable inasmuch as an examinee’s ability to spell, punctuate, capitalize and apply appropriate grammar was an inherent part of the certification exam. Exempting the teacher from demonstrating the same level of competency in those areas would not have put her on an even playing field with the non-disabled test-takers.
Long v. Illinois Teachers Retirement System, 2009 WL 3400955 (7th Cir. 2009)
Julie Long was terminated from her position with the Illinois Teachers Retirement System (TRS) after 20 years of employment. She consequently sued TRS alleging that it had retaliated against her for taking protected time off work under the Family and Medical Leave Act (FMLA). TRS countered that Long was fired because she had failed to accurately and timely distribute TRS members’ retiree benefi ts. Her errors had multiplied over time and resulted in repeated complaints from retirees. As evidence of TRS’ animus toward workers who took FMLA time off work, Long pointedto her past favorable performance reviews and to several negative comments made by her supervisor about Long’s FMLA absences from work. The supervisor had told Long that her absenteeism had contributed to the payment backlogs as well as the missed payments to members. He also noted that Long’s absences had a negative impact on her co-workers’ morale because they had to fill in for her and perform her assigned duties (as well as their own) during Long’s absences. TRS explained that the executive director, not the supervisor, was the ultimate decision maker as to personnel matters. The executive director had conducted an independent investigation and received input from a number of sources, including the complaining retiree members. The information provided to the executive director, along with Long’s performance reviews, revealed that Long’s decline in performance began several months before she requested FMLA leave. The court, therefore, dismissed the lawsuit, finding that Long failed to present evidence of retaliatory intent.
Students & Instruction
Recent Cases of Interest
Lopez v. Metropolitan Govertment of Nashville and Davidson County, 2009 WL 1971452 (M.D. Tenn. 2009)
A nine-year old disabled boy reportedly was forced to perform fellatio on an older student while riding on a school bus. His parents subsequently sued the city and county governments which operated the private academy to which the disabled student was assigned. Because of the offending student’s past behavioral problems and inappropriate interactions with other students, the parents alleged a violation of Title IX of the Educational Amendments of 1972 in that the government officials had knowledge of the substantial threat of sexual harassment posed by the offending student. The court found that there were a number of issues that had to be decided by a jury and refused to dismiss the case. These matters included whether the government officials had knowledge of the substantial threat of harm and whether they nevertheless acted with deliberate indifference by transporting a known aggressor with other vulnerable students and insufficient adult supervision.
C.B. ex rel. Baquerizo v. Garden Grove Unifi ed School Dist. (C.D. Cal. 2009)
When a school district refused to pay for the costs of a disabled student to attend a non-public school, the student’s guardian filed a due process case against the school district alleging violations of the Individuals with Disabilities Education Improvement Act of 2004 (IDEA). A hearing officer found that the school district had failed to provide a free appropriate public education to the student and ordered that it reimburse the guardian a portion of the costs associated with the student’s placement in a private facility. The hearing officer did not order full reimbursement because the facility was not a properly certified non-public school. A court later reviewed the hearing officer’s decision and found that the hearing officer erred by considering whether the facility was a “properly certified” school. Instead, the proper inquiry was whether the education provided by the agency was reasonably calculated to enable the student to receive an educational benefit. The court answered this in the affirmative, pointing to the increase in the student’s IQ scores, his improved behavior and his progress in reading comprehension. Accordingly, the court ordered the district to reimburse the guardian for the full cost of placement in the non-public school.
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. |