Delaware Employment Law Blog

The United States District Court for the District of Delaware has found in favor of a local public school district in a special-education case brought under the Individuals with Disabilities Education Act (IDEA).  The conduct of the parents, said the Court, was a large part of the problem.

The parent involved in the case filed a due-process claim against the District in late 2006, alleging a number of procedural errors.  As a remedy, the parent sought a private placement at The Gow School at public expense. Therefore, the Delaware Department of Education was joined as an additional party to the proceeding.  In a decision issued on January 6, 2007, the administrative due process Hearing Panel found in favor of the District and the Department, and the parent appealed. 

On appeal, both the parent and the District filed motions for summary judgment.   The two key issues raised in the case centered on whether the District denied the student a free appropriate public education (FAPE) by (a) failing to have an IEP in place for the student on the first day of school and (b) failing to properly notice an IEP meeting.  The Court rejected both claims.  

First, the Court noted that "minor procedural violations do not constitute an IDEA violation."  And, "[w]hile the court does not recommend having a disabled child attend school without an IEP, it finds the week delay to be a minor procedural error.  Consequently, the absence of an IEP on the first day of school does not equate to a denial of a FAPE." 

Second, the Court held that the IEP meeting "was merely a continuation" of a prior IEP meeting and as such "no new notice was necessary." Therefore, because there was no denial of FAPE, the Court concluded that the District was not responsible for the costs of the parents' private school placement.

This decision highlights the fact that minor procedural errors do not automatically lead to liability for public school district's under the IDEA.  The case also illustrates the risks run by parents when they cease to participate in the collaborative IEP development process.  Here, the Court specifically noted that it was "convinced that an IEP could have been instituted for [student] after the September 11, 2006 meeting and that none was developed because of the conduct of [student's] mother."  

[Editor's Note:  As usual, the author's humility has led him to omit his role in the case as counsel for the District.  Congratulations to Michael Stafford for securing this important victory for the school district! md]

After being diagnosed with a malignant brain tumor, long-time advocate of the American worker, U.S. Senator Ted Kennedy, will be released from the hospital today.  Kennedy was hospitalized Saturday morning after suffering a seizure at his family's compound at Hyannisport, Massachusetts.  Following the news of his sudden illness, politicians from both parties spoke highly of the Democratic Senator, including both democratic presidential candidates, Senators Barack Obama and Hilary Clinton. As Washington regulars reflect on Kennedy's contributions during his more than 40 years in public service, U.S. employers may be interested in the initiatives that would have the greatest impact on the American workplace. 

Kennedy's Current Workforce Initiatives

Senator Kennedy is a major employee advocate and many of his initiatives are focused on this goal.  This passage from his senatorial website demonstrates Kennedy's perspective:

The minimum wage is at an all-time low, the Family and Medical Leave Act is under attack, and workers are being stripped of their overtime pay, unemployment insurance, and pensions. The United States must recommit itself to supporting working families to ensure a strong and prosperous America for future generations.

Specifically, Kennedy seeks to achieve these objectives through various proposals.  Here are five of Kennedy's proposals that would have the greatest impact on employers. 

1.   Union Rights

Senator Kennedy is a long-time union supporter.  On the agenda just this month was the Public Employer-Employee Cooperation Act, which focuses on collective bargaining rights for public safety employees.  Currently, 26 states permit public employees to form bargaining unions.  The Cooperation Act would require the other 24 states to do the same. 

2.   Minimum Wage

Kennedy is one of the Senate's most vocal advocates for an increased federal minimum wage. This subject is a sensitive one for most U.S. employers.  If the national minimum wage did increase, it would likely trigger at least some changes in the way employers look at immigration reform, which is also on the Senator's list of proposals.

3.   Immigration Reform:  Illegal Immigrants

Another one of Senator Kennedy's major initiatives is targeting immigration.  Last year, immigration-reform legislation was passed but, according to Kennedy, fell short of achieving the goals it was intended to address. Kennedy has continued to advocate for revisions to the legislation, focusing on these main points:

1. Tougher Border Enforcement.  These changes would include border-enforcement patrols double the current size.  It would also target illegal immigrants currently in the U.S.  Employers who hire illegal workers would be subject to increased enforcement, as well.
2. Earned Legalization.  This initiative would target illegal aliens already in the U.S., giving them opportunities to earn citizenship.  This effort is based on the argument that massive deportation would be seriously disruptive to communities and business in the States.

4.  Immigration Reform:  The Future for Foreign Workers

Temporary-Worker Program.  As many employers are fully aware, getting specialty workers from other countries is a daunting task.  This third prong of Senator Kennedy's proposal is forward looking.  In the future,temporary employees from abroad would be given easier access to come to the U.S. for temporary work with the goal of working towards permanent employment and citizenship. 

5.  IDEA Reform

Another initiative on Kennedy's agenda has been increased funding for the Individuals with Disabilities Education Act (IDEA).  The Senator's position is that, although the goals and purposes of the IDEA are on-track, the lack of federal funding has prevented it from being fully utilized by the states.

Information about these and other initiatives can be found on the Senator's official website.

The Third Circuit has ruled that attorney-parents cannot recover fees for legal services performed on behalf of their children in administrative hearings or judicial proceedings under the Individuals with Disabilities Education Act ("IDEA") .  Although the IDEA contains a fee-shifting provision for parents who are "prevailing parties," it does not apply to fees for parents representing their children in legal proceedings.  Previously, in Woodside v. School Dist. of Philadelphia Bd. of Educ., 248 F.3d 129 (3d Cir. 2001), the Third Circuit had held that parents serving as an attorney cannot recover fees for administrative proceedings under the IDEA.  The Pardini decision clarifies that the bar to fee recovery is equally applicable in judicial proceedings.

On appeal from a due process hearing decision, the federal District Court in Wilmington, Delaware ruled in favor of the Appoquinimink School District.

The court was asked to review the decision of a due-process hearing panel involving a parentally placed private-school student. The Panel had previously found that the District was obligated to pay for the student's American Sign Language (ASL) interpreter at a local private school, despite his status as a parentally placed private-school student.

The parents of the student initially alleged in their due process complaint that the student had been denied a free appropriate public education (FAPE), while enrolled at the Sterck School (Delaware School for the Deaf). They also claimed that there was no appropriate public placement available because their son required a small class size in order to access his education through an interpreter.

As a remedy, they sought a private placement at public expense, the provision of an ASL interpreter as a related service, and compensatory education.

The Panel rejected the parent's claims of Fair Appropriate Public Education (FAPE) and least-restrictive-enviornment (LRE). The court held that the student could receive a FAPE in one of several available public placements. However, the Panel determined that the School District's refusal to fund the interpreter as a related service was "an abuse of discretion," because the IDEA and Delaware state law did not expressly prohibit the District from funding the interpreter.

According to the Panel, "[i]n the rational exercise of discretion, [the District] should provide a sign-language interpreter as a related service, and liability continues over the parents' unilateral placement." (The full Panel decision can be found on the Delaware Department of Education's website, linked here: Appoquinimink Sch. Dist., DE DP 06-11).

The District Court gets it right

The School District and the Delaware Department of Education appealed the decision to the federal court, located in Wilmington, Delaware. The Honorable Joseph J. Farnan, Jr. decided the case on appeal. They argued that they were under no obligation to fund the student's interpreter because of the separate, more limited, set of entitlements given to parentally placed private-school students by the Individuals with Disabilities Education Act (IDEA).

Specifically, the IDEA obligates districts to spend a proportional share of their federal Part B funds on the provision of related services to parentally-placed students who attend private schools located with their boundaries. The nature of the related services provided is determined through meaningful consultations with representatives of the private schools, the point of which is to identify the greatest area of need.

The court agreed, concluding that the Panel committed an error of law by ordering the School District to fund the interpreter. "Where, as here, the District has provided the child with a FAPE and the parents elect to place the child in private school, no liability continues on the part of the District for the payment of that child's cost of education, including special education and related services," because parentally placed private-school students have no "individual right to receive to receive some or all of the special education and related services that the child would receive if enrolled in a public school." Judge Farnan's full decision can be found on the District Court's website.

The Court also noted that the costs of the student's interpreter were more than ten times greater then the entire amount of the District's proportional share of Part B funds.

Finally, the Court held that that the Panel exceeded its authority in holding the District responsible for the interpreter once it had determined that the student was parentally placed in the private school, because the IDEA expressly states that complaints concerning the provision of services to parentally placed private-school students are not subject to due process procedures.

This was a notable victory for Appoquinimink School District and will be important precedent for future Delaware cases involving special education and school law.

[Editor's Note: Mike Stafford, the author of this post, is too modest to to note that he and Scott Holt, a partner in the YCS&T Employment Law Department, represented the School District in this case and were instrumental in seeing the case to victory. Well done, Mike and Scott!!]

Governor Minner has signed House Bill 283 into law.

This bill amends the Delaware Public School Employment Relations Act. As a result, interest arbitration will now be used to resolve impasses in collective bargaining between Delaware public school districts and their organized employees. Binding interest arbitration replaces non-binding “fact finding.”

Under binding interest arbitration, an arbitrator determines the final terms and conditions of employment by selecting one of the parties’ “last, best, and final” offers. This process has been used in negotiations involving other Delaware public entities for several years.

The arbitrator looks at seven factors in determining whether to accept the employer’s or the union’s offer:

(1) The interests and welfare of the public.

(2) Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees with other employees performing the same or similar services or requiring similar skills under similar working conditions in the same community and in comparable communities and with other employees generally in the same community and in comparable communities.

(3) The overall compensation presently received by the employees.

(4) Stipulations of the parties.

(5) The lawful authority of the public school employer.

(6) The financial ability of the public school employer based on existing revenues, to meet the costs of any proposed settlements

(7) Such other factors which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, binding interest arbitration or otherwise

With the exception of paragraph (6) of above, no single factor in subsection, shall be dispositive.

The parents in the group might need to sit down for this story. . .

In a bizarre and frightening incident, a middle school girls’ softball coach at the Seaford School District apparently injected one of the girls on his team with an adrenaline-filled Epi Pen--not to save her life by combating an allergic reaction—but apparently in retaliation for lackadaisical play on the field.

The girl’s family is now suing the school district for failing to properly and thoroughly verify the coach’s background.

Hiring is one of the most important decisions any employer can make. A failure to carefully screen employees can not only result in adding underperformers to your workforce, it can result in exposure to theft, violence, and legal liability.

This recent incident in Seaford underscores the importance of a thorough and productive background check. But how do you get real, useful information in a world where many employers are advised to divulge only “name, rank, and serial number” of their former employees?

Tips for Conducting An Effective Background Check:

1. Get a release - the best way is to reduce the fear of a lawsuit. Get a release of liability from the applicant whose references you are checking, and provide it to the employer. Common sense dictates that the chance of a lawsuit will be substantially reduced when the potential plaintiff has already authorized the release and discussion of employment-related information.

2. Inform of Delaware’s reference check law - you should also tell your contacts about Delaware's reference check law, which gives former, current, and prospective employers immunity from a lawsuit for providing references in "good faith." Better yet, give them a copy of the law to review and provide to their legal counsel.

3. Say the password - most experienced HR professionals you contact will be just as frustrated as you are about the inability to get information about prospective employees. As a result, you might want to give them the opportunity to help you out and still sleep at night. Try asking whether the applicant is "eligible for rehire." A negative answer might be just what you need to steer clear of an individual.

4. Find a secret source - another way to get information is to go directly to the applicant's supervisor. That person will have the most information and will be more likely to provide it than the HR department. Of course, you want to prevent such a maneuver against your company, so make sure you constantly remind your own supervisors about your policies on background checks and that all inquiries should go through HR.

5. Go public - your high-school principal was right when he warned you that your youthful transgressions would be "on your permanent record." Criminal arrest and conviction records are a matter of public record. They are not only public but also easy to get, at least for offenses committed in Delaware. A visit to the prothonotary (clerk) in the state courthouse located in Wilmington, Dover, or Georgetown can get you free access to an applicant's arrest and conviction record free of charge.

6. Visit cyberspace - another source of information is the Internet. Search engines like Google can scour the Internet for websites, newspaper articles, and postings by applicants. Similar checks on social networking sites like MySpace and Facebook can provide useful information as well. Use of such searches is becoming common. A 2006 survey by CareerBuilder.com indicated that 26 percent of hiring managers have used the Internet to collect information on applicants. Half of those managers said they had accessed personal information on social networking sites.