RAAI! September, 2018
September 2018.
In this installment of the Attorney’s Corner, we review two federal Court of Appeals decisions, a federal court decision, one administrative decision from the Office of State Review (“SRO”), and an advisory opinion from the U.S. Department of Education’s Office of Services and Educational Programs (“OSEP”).
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Amendments to Civil Service Law §75.
October 12, 2018.
This memorandum provides information about a new amendment to the New York State Civil Service Law that provides due process rights for certain labor class employees. Section 75 Protections
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Preparation for 2019 Annual Election and Budget Vote.
October 5, 2018.
The following provides an outline of pertinent election dates for the May 21, 2019 Annual Election and Budget Vote. Our annual election workshop will take place in mid January, at which time we will address all elements of the school district election process and review the latest Commissioner's decisions. We will also provide an update on the implications of the Department of Justice's ("Dal") investigation related to school district compliance with the federal Voting Rights Act ("VRA"). In the meantime, we would recommend that you begin the process of translating all election material related to voter registration and the election into Spanish.' We will notify you of the date and time of the workshop in early December.
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RAAI! August, 2018
August 9, 2018.
In this installment of the Attorney’s Corner, we review a circuit court decision, three federal district court cases, and an advisory letter from the U.S. Department of Education’s Office of Special Education Programs (“OSEP”). We start with a case from the U.S. Court of Appeals, Ninth Circuit that addresses what constitutes an appropriate response to bullying in an individualized education program (“IEP”). We follow with a decision by the U.S. District Court, Eastern District of New York that explores what sort of information is disclosable as ‘directory information’ under FERPA. This is followed by a decision by the U.S. District Court for the Eastern District of Pennsylvania discussing measurable annual goals, and how critical it is for a school district to monitor a student’s progress throughout the school year. We also examine a decision from the Southern District of New York which weighs the impact of a school district’s agreement to provide transportation services for a student to his nonpublic school in determining the student’s stay-put setting. We conclude with a letter from OSEP which discusses a school’s responsibility to provide make-up services following the administration of state assessments.
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Second Circuit Court Appeal – F.L. et al v. Board of Education of the Great Neck Union Free School Dist., Case No.: 17-2881.
August 24, 2018.
We are extremely pleased to enclose a favorable decision from the United States Second Circuit Court of Appeals, upholding the decision of Judge Feuerstein of the Federal District Court for the Eastern District of New York, and dismissing the above-referenced proceeding in its entirety.
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17-2881-Decision

Private School Transportation Requests - Students with Disabilities.
August 24, 2018.
Special Education Departments often receive a rush of transportation requests from families who have unilaterally placed their children in private, non-state-approved programs. To that end, this memo reviews the conditions under which transportation must be provided, as well as the information school districts should request from the family to make the determination of eligibility to receive transportation.
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ESSA 2018 Overview.
August 15, 2018.
The New York State Board of Regents recently adopted emergency regulations' to implement New York's plan for the implementation of the federal Every Student Succeeds Act ("ESSA") 20 U.S.C. 0301 et seq., which sets forth the conditions under which schools receive federal funding. ESSA requires that public schools implement challenging academic content and achievement standards, applicable to all students.
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Status Update - U.S. Department of Justice Review of Nassau and Suffolk County School District Elections for Compliance with the Voting Rights Act.
July 30, 2018.
As you are aware, virtually every school district in Nassau and Suffolk Counties has now received a letter from the U.S. Department of Justice ("DOJ") seeking information related to the May 2018 annual district election and budget vote. Through the document request, the DOJ is attempting to determine the extent to which school districts have complied with the federal Voting Rights Act ("VRA" ).1 DOJ has designated school districts as "political subdivisions" under Section 203 of the VRA, mandating that they provide registration or voting notices, forms, instructions, assistance, ballots or other materials or information related to an election in Spanish as well as in English.
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Dues Deductions after Janus v. AFSCME.
July 27, 2018.
Following the U.S. Supreme Court's decision in Janus v. American Federation of State, County and Municipal Employees, public employers may no longer deduct agency shop fees from employees who decline to join the union which represents their bargaining unit. The decision has placed a focus on what may be considered a ministerial function of school districts, namely, the automatic deduction of union dues from employees' paychecks.
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Guide – How to PWN.
July 24, 2018.
We are often asked to review prior written notice (“PWN”) letters following a particularly contentious CSE meeting. This past year, we have come across some consistent, problematic areas which would raise red flags if the PWNs were reviewed by an impartial hearing officer (“IHO”). To that end, this memo reviews the purpose of PWN and some helpful tips for your staff to use when drafting these documents
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The PWN Cheat Sheet

RAAI! July 2018
July 18, 2018.
In this installment of the Attorney’s Corner, we review three federal cases and a Question and Answer Guidance document issued by the Federal Privacy and Compliance Office. We start with a case from Northern District of New York that addresses IEP errors made by the school district in its attempt to address a student’s school avoidance. We follow with a multi-year challenge in the Southern District of New York which examines the steps a CSE must take to ensure meaningful parental participation when the parent of the student in question speaks English as a second language. We also review a second decision from the Southern District of New York, which examines the dangers associated with over-reliance on progress reports from the student’s unilateral placement. We conclude with a Frequently Asked Questions (“FAQ”) guidance document from the U.S. Department of Education’s Federal Privacy and Compliance Office describing the steps districts must take to ensure interested stakeholders have appropriate access to photo and video records.
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Newsday FOIL Request for Payroll Information.
July 13, 2018.
This memorandum addresses school districts' legal obligation to comply with the most recent Freedom of Information Law ("FOIL") request from Newsday, which seeks a substantial amount of employee data for a three year period.' Specifically, Newsday has requested employee payroll data, including each employee's full name, department, title, rate of pay, hire date, termination date, overtime compensation, termination/retirement compensation, and total compensation for each of the three years. A number of clients have asked whether it is necessary to comply with this request. The short answer is yes. A few caveats are set forth below.
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New Employer Obligations to Combat Sexual Harassment in the Workplace
July 09, 2018.
This memorandum is designed to introduce new obligations imposed on school district employers by legislation enacted in the 2019 New York State Budget to train staff about the prevention of sexual harassment in the workplace. These new mandates, which were signed into law by the Governor on April 12, 2018, impose several new obligations on New York employers, including school districts, to help prevent sexual harassment in the workplace. Among other things, employers are required to distribute a written sexual harassment prevention policy and provide annual sexual harassment training. These and other changes in the law concerning sexual harassment are detailed below.
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U.S. Department of Justice Review of Nassau and Suffolk County School District Elections for Compliance with the Voting Rights Act
July 03, 2018.
This week, each school district in Nassau and Suffolk Counties can expect a letter from the U.S. Department of Justice ("DOJ") entitled "Compliance with Section 203 of the Voting Rights Act." The letter seeks certain information related to your most recent annual district election and budget vote in an attempt to determine the extent to which school districts are complying with the federal Voting Rights Act ("VRA").
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US Supreme Court Decision: Janus v. AFSCME
June 28, 2018.
As you are no doubt aware, the United States Supreme Court has issued its long-anticipated decision in the matter of Janus v. American Federation of State, County and Municipal Employees ("AFSCME"), a case of great significance to public employee unions, as it eliminates public employee unions' right to collect a fee from non-union members, yet retains the unions' obligation to fairly represent all members of a bargaining unit, irrespective of their union membership.'
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New Legislation Prohibiting "Lunch Shaming"
May 21, 2018.
This memorandum provides guidance regarding a recently adopted provision of the Education Law which is intended to eliminate embarrassment to students unable to pay for meals at school, sometimes referred to as "lunch shaming." 1 The statute requires school districts to adopt a plan which, among other things, requires school districts to take affirmative steps to assist families to apply for federal or local programs which enable students to receive meals at school free or at a reduced price. It specifically prohibits school districts from implementing practices which single out children who cannot pay for a meal, and requires school districts to take affirmative steps to determine if a family is eligible to receive free or reduced price meals at school.
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New SED Policy Guidance for Homeless Students
April 12, 2018.
This memorandum provides important information about new policy guidance from the New York State Education Department (“SED”) regarding the education of homeless students under the McKinney-Vento Homeless Assistance Act (“McKinney-Vento”).
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Sample Local Educational Agency (“LEA”) Policy on the Education of Students in Temporary Housing1

Newsday FOIL Request – Settlement Agreements
March 22, 2018.
Newsday recently emailed a Freedom of Information Law (“FOIL”) request to a number of our school district clients asking for “a copy of all settlement agreements executed by the district in 2017.” In follow-up to questions regarding the scope of this request, Newsday subsequently clarified that it was seeking only those “settlement agreements executed by the district in the calendar year of 2017 to formally close civil lawsuits against the district.”
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Paid Leave for Cancer Screenings
March 14, 2018.
Effective March 18, 2018, school district employees will be entitled to an excused paid leave, not to exceed four (4) hours, for expanded cancer screenings. The purpose of this law is to encourage regular screenings for all types of cancers as a matter of improving public health.
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“Walkout” Scenarios and Student Speech Considerations
March 12, 2018.
This memorandum supplements our March 1, 2018 memorandum entitled, "Walkout" Scenarios and Student Speech Considerations" As you know, school districts across the country are anticipating a surge in student protests in the upcoming days and weks in response to recent events such as the tragedy in Parkland, Florida. This memorandum lists a few reminders to help districts respond in the case of a student walkout or other mass protest.
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"Walkout" Scenarios and Student Speech Considerations
March 01, 2018.
In the wake of the tragedy that occurred at Marjory Stoneman Douglas High School in Parkland, Florida, school districts across the country are experiencing student protest movements in response to school violence. This memorandum provides guidance to help districts respond in the case of a school "walkout" and other mass protests in the school setting.
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Reasonable Assurance of Continued Employment Following Recess Periods
December 15, 2017.
This memorandum is to inform you of a recent case regarding the eligibility of per diem emiployee for unemployment benefits during school recess periods, such as the Christmas, February and Spring recess periods. In Matter of Papapietro, 2017 WL 6043435 (3d Dept., 2017), the New York State Appellate Division, Third Department ruled that, in the absence of reasonable assurance of continued employment following the Chirtmas recess, a per diem substitute teacher who had worked in the week immediately prior to the recess period was entitlted to unemployment benefits.
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Annual District Election and Budget Vote Seminar - Save the Date
December 6, 2017.
This is to inform you that we will be holding our annual seminar on School District Elections for all Superintendents, Administrators, Board of Education members and District Clerk annual district who would like to attend. Topics to be covered will include pertinent dates for the 2018 annual district elections, legal notice requirements, submission of propositions, voter qualifications, absentee and affidavit ballots, campaigning and electioneering, budget issues, recent Commissioner's decisions and other quirky election-related items.
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Baseline Data and Measurable Annual Goals
November 2, 2017.
This memorandum provides information about a recent federal court decision addressing the critical importance of collecting data when drafting annual goals for a student's IEP. In Methacton Sch. Dist. v.D.W. and R.W.,o/b/o G.W,1, the Court found that a district's "failure to obtain any baseline data means that the goals themeselves were insufficient to provide guidance to teachers regarding Student's specific instruction [sic] needs."
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New York State Paid Family Leave Update
November 3, 2017.
This memorandum provides information for those of our public employer clients who have made Disability Insurance benefits available to members of any of their employee bargaining units thorugh the New York State Insurance Fund ("NYSIF"). As we have previously advised, such employers are not required to make Paid Family Leave ("PFL") available to these, or any other, employees. Rather, PFL can only be provided, by public employers, as a result of a negotiated agreement with individiual employee bargaiing unit(s).
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New Legislation Pertaining to Students With Dyslexia and Other Related Disorders
September 12, 2017.
This is to inform you of new legislation signed by Governor Cuomo on August 21, 2017, originally known as the “Dyslexia Bill.” The bill requires the State Education Department (“SED”) to issue guidelines for school districts to use when evaluating the eligibility requirements and needs of students with specific disorders—such as dyslexia, dyscalculia and dysgraphia.
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E-Cigarettes Banned on School Grounds
August 14, 2017.
This is to inform you that the New York State Education Department has published a new Procedural Safeguards Notice: Rights for Parents of Children with Disabilities, Ages 3-21 (“Notice”). Districts must begin using the amended Notice immediately. The revised Notice can be found at http://www.p12.nysed.gov/specialed/timely.htm and http://www.p12.nysed.gov/specialed/formsnotices/. The Notice now incorporates procedural changes to Part 279 of the Regulations of the Commissioner of Education relating to appeals of impartial hearing officer decisions to the State Review Officer (“SRO”). For example, the Notice now includes language to reflect that the SRO must issue a decision within 30 days of an appeal.
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E-Cigarettes Banned on School Grounds
August 2, 2017.
This memorandum provides information about a new State law that bans electronic cigarettes, or “e-cigarettes,” on school grounds throughout the State. Effective July 25, 2017, the State Public Health Law was amended to prohibit the possession of e-cigarettes on all school grounds. See id., §1399-o(5). As you may know, “school grounds” include any building, structure and surrounding outdoor grounds that are contained within the legal boundaries of any public or private pre-school, nursery school, elementary or secondary school. See id., §1399-n(6). The term “school grounds” also includes any vehicles that are used to transport children or school personnel. See id.
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Special Ed Presentation at 2017 NYSSBA Summer Law Conference
July 27, 2017.
In the seminal 1982 case, Board of Educaton v. Rowley, the Supreme Court held that, in order for a school district to meet its obligation to provide a free and appropriate public education (FAPE), a child's program must be reasonably calculated to confer an educational benefit.
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New York State Paid Family Leave
July 19, 2017.
This memorandum provides information about the newly enacted New York State Paid Family Leave (“PFL”) program. Effective January 1, 2018, amendments to the State Workers’ Compensation Law (“WCL”) will provide for paid family leave throughout New York State. However, it is important to note that, while PFL will be mandatory for virtually all private employers in the State, school districts and other public employers will not be obligated to participate.1 Any public employer that wishes to participate in the PFL program may do so voluntarily, or through collective bargaining in accordance with the Taylor Law.
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New SED Guidelines Regarding Immunization and Medication Management In Schools
July 13, 2017.
This is to alert you to a July 2017 document from the State Education Department (“SED”) which contains revised immunization guidelines for schools, and a May 2017 document from SED which contains revised medication management guidelines for schools1 . Please note that although the guidelines do not have the same force and effect of laws or regulations, it is suggested that they be followed. Moreover, a decision not to follow SED’s suggested guidelines which results in injury could result in additional liability for recklessness or gross negligence.
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Transition Planning for Students with Disabilities
May 25, 2017.
This is to inform you of a recent policy brief issued by the Office of Special Education division of the State Education Department ("SED"), regarding transition planning for students with disabilities. The policy brief reminds school districts of their responsibility under federal and State law to provide appropriate transition planning and services for students with disabilities.'
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Education Law §2053 Electronic Reporting for Legal Services
May 24, 2017.
This memorandum provides information about a new Portal available through the New York State Education Department (NYSED) which school districts must utilize when submitting annual reports for legal services rendered to school districts. Please note that for the current school year, annual reports must be submitted electronically through the e-filing system by June 30, 2017. Paper submissions will not be accepted.
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State Education Department’s Office of Special Education Revised Guidance and Procedures
May 24, 2017.
This is to inform you of recent revisions from the Office of Special Education division of the State Education Department (“SED”), regarding: (1) the administration of state assessments over multiple days to students with disabilities; (2) superintendent determination of graduation with a local diploma; and (3) application procedures for extended school year (“ESY”) programs.
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AT for Students with Disabilities - Attachment

Placement of Students with Disabilities in Residential Schools
May 23, 2017.
The following is a reminder of a school district's responsibility to submit timely requests for tuition reimbursement for New York State Education Department ("SED") approved residential placements.
SED has reissued prior guidance which sets forth the application procedure for reimbursement of tuition costs for in and out-of-State approved residential programs. The topics covered in the most recent guidance include:
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A Monthly Synopsis of Salient Cases in Special Education
April 12, 2017.
In this installment of the Attorney’s Corner, we review two decisions by the United States Supreme Court; two federal district court decisions, and a “Refusal to Investigate” by the Family Policy Compliance Office.
The United States Supreme Court issued its much-anticipated decision in Fry v. Napoleon Community Schools, which described the circumstances under which a family must exhaust administrative remedies in suits against school districts. Shortly thereafter, the Supreme Court issued its decision in Endrew F. v. Douglas County School District RE-1, holding that in order to provide FAPE, an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances[,]” establishing that the validity of an IEP will be determined based upon the needs and abilities of each child. We also look at two federal court decisions. The first analyzes the details important to the courts concerning how a district would implement a student’s IEP. The second clarifies that a committee on special education (CSE) is not required to consider increasingly restrictive program requests from the parent once an appropriate educational program has been identified. We also review an opinion by the Family Policy Compliance Office, which refused to investigate a parent’s request to challenge a child’s quarterly progress reports pursuant to – and the school’s refusal to hold a hearing under – the Family Educational Rights and Privacy Act (FERPA) statute.
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Recent Supreme Court Case - Educational Benefit Standard
March 23, 2017.
This is to inform you of a recent U.S. Supreme Court decision regarding the level of educational benefit that school districts must provide to children with disabilities to satisfy the free appropriate public education (“FAPE”) standard under the Individuals with Disabilities Education Act (“IDEA”). In Endrew F. v. Douglas County School District RE-1, No. 15-827 (March 22,2017), Chief Justice John Roberts wrote the unanimous decision which vacated and remanded the Tenth Circuit Court of Appeal's ruling. The Tenth Circuit decision established that the standard was that an Individualized Education Program (“IEP”) is sufficient if it is calculated to provide a child with some progress. The Supreme Court reversed the decision and ruled that in order to provide FAPE, an IEP must be “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” In doing so, the Supreme Court established that the validity of an IEP will be determined based upon the needs and abilities of each child.
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State Education Department’s Office of Special Education Revised Guidance and Procedures
March 15, 2017.
This is to inform you of recent revisions from the Office of Special Education division of the State Education Department (“SED”), regarding: (1) the administration of state assessments over multiple days to students with disabilities; (2) superintendent determination of graduation with a local diploma; and (3) application procedures for extended school year (“ESY”) programs.
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SED Special Ed Changes - Att.1
SED Special Ed Changes - Att.2
SED Special Ed Changes - Att.3

DASA Guidance and Resources
March 3, 2017.
This memorandum is to inform you that on February 27, 2017, the New York State Education Department (“SED”) issued a memorandum entitled Available Guidance and Resources to Combat Harassment, Bullying and Discrimination in Schools in Light of Recent Immigration-related Actions. 1 SED’s memorandum describes resources school districts may access to ensure the Dignity For All Students Act (“DASA”) is fully implemented across the state to foster and maintain a safe school environment.
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DASA Resources

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION MEMORANDUM
March 2, 2017.
This memorandum provides an update to our February 16, 2017 advice regarding the education of undocumented students, and summarizes a joint guidance document issued February 27, 2017, by NYS Attorney General Eric Schneiderman and Commissioner of Education Mary Ellen Elia.1 In a nutshell, the Attorney General and the Commissioner strongly reiterated that “[u]ndocumented children, like U.S. citizen children, have the right to attend school full time as long as they meet the age and residency requirements established by state law.”
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Undocumented Students

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