My Research Dashboard

• Stop Complaining About Charters — Embrace Them!

  

  Charter schools have become a major piece of the national school reform conversation. That they are not universally embraced was apparent at a conference I recently attended. One participant shuddered, saying that in her state, hundreds of charter schools open and hundreds close each year. The implication was that charter schools are educationally ineffective, poorly managed and a waste of time. Others said that charter schools were successful only because they took the best kids and did not have the difficult task of educating second language learners or students with special needs.

  All I could think of was, “WOW”. Twenty years ago this month, the Colorado legislature authorized the establishment of charter schools. My district (Denver Public Schools) currently has 40 charter schools, and, while there are some grumblings, our conversation is more about their role in our portfolio of school choices than whether they should exist at all. DPS’s charter schools have an average poverty level higher than that of the district.  They are largely successful. Of the fifteen distinguished schools on the district performance framework, seven are charter, and only one has a poverty level of less than 70 percent. This year, for the first time, charter schools have accepted host programs for severe needs special education students.

  One of the real successes for us has been what is called the Collaborative Council. The purpose of the Collaborative Council is to discuss and develop policy recommendations to improve the way that Denver Public Schools and its charter schools work together. The Council brings together district and charter personnel to discuss funding issues, choice, and best-practice dissemination across all schools.  We have programs that promote “principal pipelines” to both sets of schools.

  The next step in the collaboration is the inclusion of charter schools in major federal grant programs. Our recently awarded Teacher Incentive Fund grant will, I believe, become a model for how to incorporate charter schools into district initiatives in a way that preserves both the autonomy of charter schools and the integrity of the funding. One of the key performance instruments used in the work of the grant is the district’s teacher evaluation framework.  Charter schools do not have to use it.  In order to participate in the grant program, however, each charter school has to have a framework that is deemed to be “at least” as rigorous.  The conversations back and forth with the program officer on the terms will provide a pathway for charter inclusion in all district proposals.

  Charter schools are not the sole solution to the reform problems that plague public schools, but they can play an important part. They are an important incubator for models that can be scaled and practices that can be incorporated into traditional schools. Working together requires will and sometimes creative thinking. At a time when public schools are under attack for a lack of academic achievement, we should embrace what charters tell us about changes needed in traditional models.  It is time to quit thinking of them as nuisances and work with them for the future of all of our students.

  Nancy Connor is the director of federal programs for the Denver Public Schools.
• Kline in the Middle

  

  John Kline is not in an easy position. The Minnesota Republican took over as chairman of the House Committee on Education and the Workforce in 2011 – the position that used to belong to now-Speaker John Boehner (R-OH). Anyone else in that position might simply have chosen to warm the seat and defer to Boehner – and House Majority Leader Eric Cantor (R-VA), who has recently spoken out on a number of education issues – on needed action. But Kline has an ambitious legislative agenda. He has said that he wants to reauthorize the Elementary and Secondary Education Act (ESEA) and the Higher Education Act (HEA), among other projects, during this Congress – actions that may put him at odds with the more conservative arm of his own party, alienate party leadership and even put him on the side of Democrats in some instances. 

  Earlier this spring, Kline and other committee members reached out to states that had received waivers of the Elementary and Secondary Education Act (ESEA) to ask about the process. In a letter to State chiefs this April, the committee requested data on the number of meetings, phone calls, and teleconferences each State had with the U.S. Department of Education on their waivers, how many amendments had been requested, the monitoring process, and the challenges involved in implementing the changes required by the waivers. Such a broad request for information – an identical request was sent to Secretary of Education Arne Duncan – indicates an intent to put the waiver process in the spotlight, likely through oversight hearings in committee. 

  It’s no secret that Kline is not a fan of waivers. He has previously written to Duncan asking the secretary to provide legal justification for the waivers’ conditionality (their requirement that states adopt certain “principles for reform” in exchange for being granted flexibility) and asked the Congressional Research Service (CRS) to look into the same question. But with House Republican leadership engaging in repeated showdowns with the President on fiscal and debt issues, as well as the IRS, surveillance, and Benghazi debates, they don’t need the added distraction of a battle on ESEA flexibility. Boehner and Cantor, for their part, have remained relatively silent on the topic of waivers – suggesting that it’s not a topic they want to bring into the fray.

  Kline’s skepticism about the waivers has put him in some odd company. Though largely supportive of Duncan and the waivers generally, ranking committee member  George Miller (D-CA) has expressed concern that new accountability systems are actually lowering standards, allowing states to sweep poor subgroup performance and high school graduation rates under the rug.

  Kline’s politics have also attracted some strange bedfellows on appropriations. Kline has long been a vocal advocate for the Individuals with Disabilities Education Act (IDEA) and full funding for the program, saying that it is the federal government’s obligation to pay its fair share. But recently, this has meant bucking his party. House Appropriations Committee Chairman Hal Rogers (R-KY) released appropriations targets that would drastically slash funding for education spending (including a nearly 20 percent cut to IDEA) in order to preserve defense and homeland security spending. These targets are largely believed to have been crafted under explicit instruction from Republican leadership and with the help of Budget Committee Chair (and former vice presidential candidate) Paul Ryan (R-WI). But Kline, a former Marine One pilot and senior military aide for Presidents Carter and Reagan, wrote to appropriators asking them to level-fund IDEA. In his letter, Kline called cuts to IDEA funding “regrettable” and urged appropriators to “work toward meeting our basic obligation” on IDEA. 

  Notably, Kline was the only signatory on that IDEA letter.  A moderate Republican, he has found himself increasingly out on a limb as most of his party tilts severely to the right, especially on fiscal issues. This tilt is not without a price. As evidenced by shouting matches – and a Democratic walkout – in recent committee meetings, even Kline’s relatively moderate positions cannot spare the committee and its legislation from partisan tensions. 

  Ultimately, Kline’s success in driving his moderate agenda will depend on how the Republican Party views their electoral chances in 2014. If they believe the electorate and former Tea Party loyalists are inching back towards the center (evidenced, perhaps, by Michelle Bachmann’s recent announcement that she will not seek reelection), Kline’s priorities may have a chance – strange bedfellows and all.

  Julia Martin is the legislative director the Brustein & Manasevit law firm.
• Appropriations: The First Salvo

  

  Recently the House Appropriations Committee, chaired by Congressman Harold Rogers (R-KY), released their allocations for fiscal year 2014 (school year 2014-15).  These allocations, known as 302(b) allocations, provide a dollar amount for each appropriations subcommittee.  The appropriations subcommittee that contains education funding is Labor-HHS-Education-Related Agencies—referred to as “Labor H.” 

  The proposed Labor H allocation is 18.6 percent below fiscal year 2013, after sequestration.  While the Administration had hoped to reverse the effects of sequestration in the 2014 fiscal year, this proposal instead retains the sequestered spending levels and adds additional cuts.

  What does this mean for education?  In actuality, no one really knows.  This 18.6 percent cut could be applied across-the-board to all programs under the jurisdiction of Labor H, but this is unlikely.  Instead, appropriators would most likely propose cuts, increases, and level-funding for various programs in each of these departments. 

  But with the Administration and the House Appropriations Committee being so far apart on their expectations for fiscal year 2014 funding, what is the probable end game?  Crystal ball time!  Here is a possible scenario—

  Step 1: The Administration wants to reverse the effects of sequestration, evidenced by the President’s budget request to Congress. (http://www2.ed.gov/about/overview/budget/budget14/index.html?src=ct)

  Step 2: The House Appropriations proposed 302(b) allocations are significantly below sequestration levels. (http://appropriations.house.gov/uploadedfiles/05_21_13_fy_2014_report_on_the_suballocation_of_budget_allocations.pdf)

  Step 3: The Democratic Senate will likely not pass House appropriations bills that are passed along party lines (exceptions could be bills that contain funding for defense, homeland security, and other defense-related spending).

  Step 4: Congress will begin passing a series of continuing resolutions for the 2014-15 school year, similar to what they did during the last year for fiscal year 2013.

  Is this good or bad?  Anytime Congress is not thoughtfully considering appropriations and the implications of those appropriations on the program participants, we have lost an opportunity to improve the status quo.  On the other hand, a continuing resolution will most likely keep the appropriations within the levels specified in the Budget Control Act, avoiding another year of sequestered amounts and avoiding the significant cuts currently proposed by the House.

  Time will tell if this or another scenario actually occurs.  With respect to appropriations, count on it being another “interesting” Congressional session. 

  Michelle Doyle, a former top official with the U.S. Department of Education’s Office of Non-Public Education, is CEO of Michelle DoyleEducational Consulting.

  Photo credit: Rennet Stowe
• It's Toast!

  

  The prospect for a reauthorization of the Elementary and Secondary Education Act in this Congress (2013-14), that is.

  In the past week, we have seen three different ESEA reauthorization proposals introduced by key players in the House and Senate.

  Sen. Tom Harkin (D-Iowa), chairman of the Senate Committee on Health, Education, Labor and Pensions, introduced a bill that resembles the version he introduced in the last Congress, although he has deleted the provision that would require that teacher evaluations linked to student growth be used for personnel decisions. It would also retain the accountability structure established under the Obama administration’s ESEA Flexibility initiative.

  For his part, Sen. Lamar Alexander (R-Tenn.), the ranking minority member of the HELP committee, yesterday introduced a bill that would block-grant most of the ESEA and voucherize Title I.

  Over in the House, John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, has reintroduced a version of the bill he put forth last session. It would block-grant much of the ESEA and cap total ESEA funding at a level slightly above that enacted for FY 2013. Like Alexander’s bill, it would strip the U.S. Department of Education of much of its authority under the current ESEA.

  None of the introduced bills enjoyed bipartisan support; Harkin’s bill has no Republican sponsors, and Alexander and Kline’s bills likewise have no Democratic backers.

  The ideological gulf between the Democratic and Republican bills bodes ill for compromise. And anything resembling the House bill will inevitably be vetoed if it reaches the White House. After all, President Obama has largely imposed his agenda through the existing ESEA waiver provisions, in the form of ESEA Flexibility — why on Earth would he accept a diminution of his authority?

  The stage is set for a repeat of the stalemate that prevailed last year. Hence, I wouldn’t look for a reauthorization until and unless the 2014 elections radically change the political dynamic in Washington. So, it looks like the first realistic chance for an ESEA bill is 2015 — a pathetic eight years after the law came due for renewal.
• Technology and Learning: Another Study, Another Suggestion

  

  When I was growing up, school-age kids had few, if any, interactions with computer technology on a daily basis. Decades later that number of interactions is incalculably high. Kids have smart phones, tablets, and laptops of their own, and schools provide many device-centric opportunities during the school day. Yet we have seen little academic growth over 30+ years in NAEP, SAT, or ACT scores.

  I began programming on an Apple II computer in 1977. I loved technology then and have made it a significant part of my personal and professional lives ever since. When I was a kid with a computer, I would have bet anyone that by now technology access alone would have dramatically improved student achievement.

  But I would have been wrong.

  Yet another study has reached this conclusion. In “Experimental Evidence on the Effects of Home Computers on Academic Achievement among Schoolchildren”, The National Bureau of Economic Research concluded the following:

  “Although computer ownership and use increased substantially, we find no effects on any educational outcomes, including grades, test scores, credits earned, attendance and disciplinary actions.”

  But Larry Ferlazzo, teacher, author, and education expert, wrote recently that the folks at NBER missed an important point:

  “Without training or accountability, it doesn’t seem to me that schools should put much effort into getting technology into the hands of students at home.”

  I believe Mr. Ferlazzo is correct. But I’d like to reframe his terminology. He suggests that training and accountability are the key. But those are tough terms to define. What training do people need? What model of accountability works best?

  Recently, I posted a piece on this site that suggested something similar to Mr. Ferlazzo’s hypothesis. I wrote that we were only using half of what technology had to offer, that we were focused on technology products and services, but that we paid little or no attention to technology process and culture.

  I propose the idea here that common processes used in the technology industry be our guide for training and that common aspects of technology culture provide the framework for accountability that Mr. Ferlazzo asserts is so important.

  In these days of the “lean” enterprise, technology processes are all about learning. Recently, I attended a talk by a senior executive at PayPal who proclaimed over and over that today’s market demanded constant learning and that he would be introducing well-known processes specifically for that purpose. “Everything we do from now on,” he said, “will be all about learning.”

  Later in the day, I gave a slightly different presentation at PayPal but with the same theme: technology processes would improve learning in our schools whether we applied them directly to technology use or to teaching practice.

  To Mr. Ferlazzo’s point about accountability, tech culture also shows us the way to bring accountability into tech use in schools in a simple and purposeful ways. In tech culture, technology is a means to an end, not an end in itself. That end is increased productivity aligned with organizational goals.

  But it is access to technology that matters so significantly to kids and using it for academic purposes is likely a low priority in most cases; kids’ goals for tech use are not often aligned with our goals for their use. Therefore, when we give kids technology with learning in mind, we should define accountability explicitly in terms of increased academic productivity. Kids need to know that we expect them to use technology to learn new things and also to demonstrate learning in ways that are consistent with academic goals.

  To many of us—even technologists like me—smart phones, tablets, computers, software, and the Internet still seem magical. But I don’t think they will work magic in our schools until we bring key aspects of the process and culture of professional technology use into schooling.

  Photo Credit: Wolfgang Wedenig

  Steve Peha is the Founder of Teaching That Make Sense, an education consultancy focused on literacy and leadership.

More

• June 19, 2013

  Title I Monitor Roundtable: Part III

  In our final installment of our three-part roundtable on homeless education, experts take the issues of transportation and a more recent phenomenon, sex trafficking among the homeless student population. Parts one and two are available here and here.

  The panel comprised Diana Bowman, director of the National Center for Homeless Education; Barbara Duffield, policy director for the National Association of Homeless Children and Youth; Cathy Haller, director of prevention services for the Mesa County School District in Grand Junction, Colo.; Zib Hinz, liaison for homeless and highly mobile students for the Minneapolis Public Schools; Jennifer Pringle, project director for the New York State Technical and Education Assistance Center for Homeless Students; and Barbara Wand James, project director for the Texas Homeless Education Office at the University of Texas at Austin’s Charles A. Dana Center.

  In late May, they spoke with Andrew Brownstein, editor of the Title I Monitor.

  Monitor: At the national level, there have been a number of attempts through appropriations bills to use Title I funds to provide transportation to homeless students. What happens with those bills in Congress? Is there a reluctance to move them?

  Duffield: It has nothing to do with the content of the provision. It’s just, as you all know, the divide between House and Senate is huge. Because the two parties are so far apart, they end up with continuing resolutions. I can probably say the same thing with the Elementary and Secondary Education Act, where the provision also appeared. It seems like a breakdown in the political process where compromise is not possible and the two sides are ideologically very far apart, so nothing gets done.

  The Department of Education could make this change single-handedly. It’s their interpretation of the Title I supplement-not-supplant provision that’s caused the problem. ED believes that because McKinney-Vento requires LEAs to transport homeless children to their schools of origin, it would be supplanting to use Title I for this purpose — even though the Title I language specifically authorizes “educationally related support services” for homeless children. They admit it’s an interpretation. It’s not in the law. We think we have an equally valid counter-interpretation. So, if the Department of Education wanted to provide more flexibility to school districts to help meet the transportation mandate, they could.

  Monitor: And I assume that you’ve pressed this issue with the Education Department.

  Duffield: Oh, yeah. Memos, letters, meetings.

  Monitor: And, thus far, no traction?

  Duffield: No.

  Pringle: It’s really unfortunate, because it just denies flexibility to districts when they’re struggling so much to meet the needs of kids.

  Human Trafficking

  Monitor: One of the things that was brought up when we first convened in 2011, almost as a footnote, was human trafficking, which was just then beginning to emerge as a fairly big issue in the homeless education community. Since then, there seems to be a lot more discussion around this issue. Is it just an expanded awareness, or was there more of this going on in the past two years?

  James: We’ve been pretty active working on that. We’ve got some areas in Texas that are crossroads. San Antonio is one of the crossroads for human trafficking, and so is Houston. Our liaisons have actually found kids in the school who are being used to recruit other kids. In fact, Waco Independent School District, which is on the I-35 corridor, has actually started doing training of all school personnel. They’ve got a whole community- based effort set up around human trafficking because they’re finding it to be such an issue in the school district.

  So, it’s real. It’s there. People really do need to be able to recognize the signs of kids that are being trafficked. A lot of times people would think, “Well, they’re not really attending school.” But, they actually are. They’re so brainwashed by the people who are trafficking them, they will do anything. These kids are trading sex for food and a place to stay.

  Hinz: Here we are, at the top of the I-35 corridor. There is a great deal more awareness here about this. [Editor’s note:The I-35 corridor runs from the Mexican border at Laredo,Texas to Duluth, Minnesota.] There are several agencies that are developing some particular expertise, at least within the city of Minneapolis. Native American young women are particular targets. It’s just hideously bitter.

  Bowman: Our homeless youth are probably the most vulnerable kids to being involved in trafficking. One of the research studies estimated that within 48 hours of being out on the street, almost one-third teen runaways are likely to be involved in prostitution. When information like that starts getting out to our field, all of the sudden people are just really tuned in to how vulnerable these kids are.

  Monitor: Well, as we near the end, there are a ton of issues that we didn’t get to. But I wanted to give all of you a chance to chime in with anything that you didn’t get chance to say. Anyone?

  Bowman: We’ve been spending lots and lots of time on getting kids into school, immediate enrollment, and getting them stable in school. But there’s more and more discussion on how can we make them successful in school. It’s a logical evolution. A larger piece of the program is slowly starting to look at what kind of things we need to do to create resilience in homeless students to make them successful in school?

  Duffield: I am increasingly struck that there’s such compelling science about the importance of early childhood brain development — how an adverse experience in childhood will affect adults later. There’s compelling data about how education then helps people’s wages in our economy, about the number of jobs that are there that require a college degree or more, and how we have to have an educated populace if we want to make sure that our economy is competitive.

  We have all this research and data on early childhood brain development, education and the workforce. Yet the federal homeless policies are still focused on adults, not children. So there’s a disconnect between the push for early childhood education on the one hand, which we all know is valid and which we believe is the best way out of poverty and homelessness, and what we’re doing with homelessness at the federal level, which is targeting the dollars toward single adults, and not really doing much at all on the education front to combat future homelessness.

  Haller: I can’t agree more about our really screwed-up priorities in terms of dollars. Because, when you look at any system, the research is clear about prevention versus intervention. We have lots of partnerships that allow us to serve families as well as students, with our community giving programs. And we can sink dollars and dollars and dollars into the adults in a family and see very little come out of that. But if you even sink one-tenth of those resources, whether they’re human or financial, into the youths, you will see a difference immediately. Prevention is where you get the biggest bang for your buck.

  Pringle: I want to echo the point about access to early childhood education. Here in New York, the application period for what we call pre-K — for the four-year-olds — is in the spring, which puts it out of reach for many children in temporary housing, because they’ve moved to a different district come fall.

  Hinz: I just would say that we are moving very much more this coming year into issues around academic supports for kids we’ve identified as homeless. And I’ve just come out of a staff planning meeting devoted much to that. So I expect some changes here.

  James: I just continue to sometimes think I’ve fallen down the rabbit hole and wonder what in the world is going on here. But then there will be good things that happen. For example, we had a liaison who made sure that all 36 of her seniors graduated. The homeless kids in her district actually had a higher percentage graduation rate than the non-homeless peers. Those are the kinds of things make my day and make me realize there is still some hope.
• June 18, 2013

  Title I Monitor Roundtable: Part II

  In part one of our roundtable on homeless education, experts focused on the aftermath of the recession and the impact of natural disasters like Hurricane Sandy. In today’s installment, they discuss their struggles to gain recognition for programs under the McKinney-Vento Homeless Assistance Act and the intersection of their work with other federal programs like foster care.

  The panel comprised Diana Bowman, director of the National Center for Homeless Education; Barbara Duffield, policy director for the National Association of Homeless Children and Youth; Cathy Haller, director of prevention services for the Mesa County School District in Grand Junction, Colo.; Zib Hinz, liaison for homeless and highly mobile students for the Minneapolis Public Schools; Jennifer Pringle,project director for the New York State Technical and Education Assistance Center for Homeless Students; and Barbara Wand James, project director for the Texas Homeless Education Office at the University of Texas at Austin’s Charles A. Dana Center.

  In late May, they spoke with Andrew Brownstein, editor of the Title I Monitor. The final part of this discussion will appear Wednesday.

  Monitor: Barbara, you’ve previously talked about a different problem -— that some districts were reluctant to identify certain situations as homelessness. What’s happening there?

  James: There’re always people out there who are very reluctant to recognize homelessness. We ran into one just this week, a principal at a campus. Unfortunately some of them can’t be convinced in Texas. We have independent school districts here.

  There are the good districts, and there are those that are struggling. And it just goes with the territory. We’re never going to have everybody trained because it’s just an impossibility. Our territories are too large. What warms my heart is when a liaison from one district will contact me about a problem she might be having with another district. She knows McKinney-Vento chapter and verse and isn’t saying, “Aren’t I right about this? Aren’t I right? Isn’t that the right thing to do?” That tells me that our training has paid off when we have situations where liaisons can educate each other.

  Hinz: I would add that another confusion along the way with staff is that they tend to get confused with the special ed requirements — thinking that they need to get a parent’s agreement or signature to state that the student is homeless. It’s just a reflex on their part because they’re so well-trained in special education requirements. So, that’s one of the first kind of miscues that I try to address with this constant training. It’s something that we have to repeat over and over. McKinney-Vento is not special ed law.

  Haller: Zib, we have that problem. Another issue: Sometimes people perceive, when people are living in a car, that the children are automatically neglected, so we have to be real careful.

  Hinz: Or the parents worry about being reported. No one’s going to report them in that way, but the parents are so, so anxious.

  Foster Care Problems

  Pringle: One thing that we are starting to see with more frequency here in New York State is tension with regard to the role of the school district in serving kids in foster care. How does McKinney-Vento play into that? That is something that we on a state level are working on with the State Education Department and our state Office of Children and Family Services, which oversees child welfare, and the courts.

  It’s very, very challenging because there’s no similar program to McKinney-Vento for kids in foster care. Often times departments of social services are looking to fit their kids into the McKinney-Vento bucket so they can get transportation from the school district rather than having the Department of Social Services do it. [Editor’s note:McKinney-Vento requires school districts to provide homelesschildren with transportation to their “schools of origin.”]

  Duffield: This has become, over the past six to seven years, a growing issue. You’ve got part of a McKinney definition that covers some children in foster care. And then Fostering Connections, the legislation that Zib referred to, has very minimal requirements for child welfare agencies to provide for the education of children in foster care.

  Hinz: Painfully minimal.

  Duffield: Yes, painfully minimal. And what happened was a huge push from all child welfare agencies and advocates to squeeze as many kids as possible into McKinney-Vento in an effort to require schools to pay

  for transportation and, in my opinion, evade accountability for their own system and, worst of all, not really pay attention to the root causes of mobility for kids in foster care, which is housing placement changes.

  Kids in foster care and kids who are homeless have a lot of similarities in terms of their need for stability, an immediate home, etc. But the big difference between the two populations is that kids in foster care have an agency that is legally responsible for their wellbeing, and that actually plans where they live, when they move and how far from school they are. I can count a number of states, where rather than paying attention to how we place this child close to school and how we recruit more foster parents in the school district, they’re instead coming down on the school district liaison, saying, “I need a bus.”

  In order to deal with this, several states have really limited their interpretation of which kids in foster care are covered by McKinney-Vento and which are not. But fundamentally, we have two systems that are not collaborating. Frankly, that has not been good for kids in foster care or for homeless kids. It has caused a lot of liaisons to have to shift their time and energy away from homeless kids who don’t have any agency that is legally responsible for them, who don’t have any control over where they happen to land and really for whom the school community is their only safety net.

  James: We struggle with that as well. As a temporary stopgap until we can get something else, we’ve worked in collaboration with our Child Protective Services department. We’ve created a matrix where we’ve got all of the potential situations that could come up with descriptors about kids in foster care. And, then we’ve got another column that says “McKinney-Vento eligible” or “not McKinney-Vento eligible.”

  That has saved my bacon many times. When people have called up who have said, “That kid’s in foster care,” I just go through that continuum and I start asking them questions. And then I can say “Yes, this child can meet the definition,” or “No, this child doesn’t.” So, it’s been really helpful.

  The third and final installment of the Homeless Education Roundtable appears here. Part one is available here.
• June 13, 2013

  Title I Monitor Roundtable: Part I

  Almost two years ago, the Title I Monitor convened a lively expert panel to discuss many of the toughest issues facing educators who serve homeless children and youths. At the time, school districts were still grappling with the effects of a historic recession, mitigated somewhat by extra stimulus funding provided under the McKinney-Vento Homeless Assistance Act.

  In some parts of the country, those issues have faded somewhat. In others, they are more urgent than ever. In several Northeastern states, for example, the impact of Hurricane Sandy exacerbated a problem that was a crisis before the storm ever hit. The combined issues have led to increased partnerships — and some new problems — between school districts and other public and private agencies, as well as amongst the various federal bureaucracies that cater to homeless students.

  To help navigate these issues, the Monitor reconvened the expert panel — including some new names. The discussion covered a wide range of issues, including the budget crisis, transportation, foster care and the growing problem of sex trafficking of homeless students

  The panel comprised Diana Bowman, director of the National Center for Homeless Education; Barbara Duffield, policy director for the National Association of Homeless Children and Youth; Cathy Haller, director of prevention services for the Mesa County School District in Grand Junction, Colo.; Zib Hinz, liaison for homeless and highly mobile students for the Minneapolis Public Schools; Jennifer Pringle, project director for the New York State Technical and EducationAssistance Center for Homeless Students; and Barbara Wand James, project director for the Texas Homeless Education Office at the University of Texas at Austin’s Charles A. Dana Center.

  In late May, they spoke with Andrew Brownstein, editor of the Monitor. This is part one of a three-part series.

  Monitor: Many parts of the country are still dealing with the aftermath of the recession. But states like New York and New Jersey have had to deal with the added devastation of hurricane Sandy. How have homeless students and families in those areas been coping?

  Pringle: The hurricane exacerbated an already tremendous homeless population in New York City. Just from the 2010-11 to the 2011-12 school year, we saw a 9 percent increase. We are up to over 96,000 students identified in homeless situations in the state in 2011-12. The overwhelming majority were in New York City. We had almost 70,000 kids identified by the New York City Department of Education.

            New York City has an extensive family shelter system that has had unprecedented demand. There were over 48,000 people sleeping in the family shelter system two nights ago. That’s just a nightly sum, not even taking into account the numbers for the whole year. And that’s just the family shelter system, which doesn’t count the single adult shelter system, the runaway and homeless youth and the domestic violence shelter systems.

            The numbers that preceded hurricane Sandy were quite enormous. On top of that, we now have all of these displaced families because of the storm. Not surprisingly, many of the folks who are still in homeless situations are the most vulnerable: the renters who were living in illegal basements. A whole class of low income housing was wiped out as a result of the storm. It wasn’t a sanctioned type of low income housing, but it was a de facto low income housing. Folks are in very precarious situations right now in terms of their living arrangements.

            Because the pace of our building is quite slow, there are real questions as to how and when they will achieve permanent housing. We still don’t have the final numbers. But we think that there were roughly 10,000 school-age kids who were displaced.

            For a lot of these families, the social service provider is the school. That’s where they go to get food and clothing. The schools have proven to be a tremendous source of support not only for those immediate needs, but also the social and emotional needs of the kids. Parents have said how important it was to them that their children were able to stay with the same friends and teachers, even though the family had lost their housing. It helped them tremendously despite all of the chaos that was going on outside of the school doors.

            Even though the storm was six months ago, our community is still very much in the midst of recovery. Schools are doing a tremendous job trying to support those families, but I have to say it was a little disappointing that there wasn’t any funding available to districts as a part of the Hurricane Recovery Bill. Schools had tremendous costs associated not only with damage to facilities, but the transportation costs bringing displaced students back to the district. We estimated it cost over $4 million dollars just in the first six months. These are all unanticipated costs. Especially for the smaller districts, the effect is very, very significant.

  Disaster Response

  Monitor: How far are you from being out of crisis mode?

  Pringle:  There are still approximately 500 households who have FEMA housing vouchers, who are in motels and other types of temporary housing. Those were set to expire a couple of weeks ago, and there was an extension. There’s also a real question mark about how the city, state and federal government will rebuild. As in all natural disasters, some folks are frustrated at the pace.

  Monitor: From a national perspective, is there a sense now, with the frequency of natural disasters we've seen from Hurricanes Katrina to Sandy, that this is more of a chronic issue?

  Bowman:I would say very definitely. Hurricane Katrina was the first really big disaster that put the homeless education program on the map. We learned a lot, but then we sort of moved on. And we thought, "Boy, I hope that never happens again."

            Then it happened again and again, not necessarily on the scale of those particular hurricanes, but with fires and floods and tornados. There's been a realization that natural disasters just happen as a matter of course. Every year, really horrible things happen.

            The change for us has been to look very systematically about how to prepare for disasters, to act during the disaster and to put things in place after the disaster. We started compiling good practices. And we share with other people. We have more and more presentations at conferences. We have more and more opportunities to bring folks together to connect with each other in dealing with disasters. This has become a real integral part of the whole picture of homelessness.

  Impact of the Recession

  Monitor: More generally across the country, how have your states and districts emerged from the recession in terms of their homeless education communities?

  Hinz:  The school districts in Minnesota are coping fairly well. We haven’t felt the immediate effects of sequestration. But the really big news is that the Minnesota state legislature has approved an additional $33 million in housing and human services for children, families, youths, and adults who are homeless. This involves some capital funding, different kinds of rental subsidies, some housing rehab loans and supportive services for families, adults and homeless youth.

  Duffield: Just out of curiosity, how much of that money is actually going to get to schools?

  Hinz:  There will be very little that goes to schools. Remember, the Minneapolis-St. Paul metropolitan area has a housing vacancy rate second only to Manhattan. There is very little rental housing and less affordable rental housing.It's kind of extreme here. Right now, lots of kids are staying in the exurbs where they don't really want to be and they don't have any support. They are on buses for long periods of time coming and going. The funding would mean that families who choose to stay closer in to the metro area are no longer sent quite as far out into the exurbs.

            These kinds of resources that can be immediately implemented to assist with housing are just huge for these families. And it’s huge for us as school staff. The bottom line is that we’ll be better able to focus our attention on the educational environment and not feel like we’re spinning in circles trying to find housing or helping to just keep the stress level down because they haven’t found housing.

  James:  In Texas, individual cities are stepping up to the plate. In Houston, for example, there’s a new initiative in housing, where the local homeless coalition housing providers are actively working with school districts to provide housing for 100 families with children. That will be starting up in the fall.

            We’re also seeing a lot more students identified as homeless from Head Start, which is really big, because in the past we haven’t had so many kids in Head Start. In other local communities, we’re starting to see leadership with health care providers. We know that health care is one of the real challenges that students face in going to school and staying in school. If they don’t feel well, they can’t be successful. A lot of our liaisons have been able to partner with physicians, dentists and mental health providers so that homeless students get the care they need. [Editor’s note: The McKinney-Vento Homeless Act requires all school districts to appoint a liaison responsible for identifying, enrolling and supporting homeless children in school.]

  Haller: We also have just amazing collaboratives that allow us to get lots of things accomplished that a school-only kind of program wouldn’t be able to do.

            We have a new housing collaborative to house between 30 and 50 of my families that I’ve identified through the school district. The top qualification has to be that they have children in the school district. And the most exciting piece of it is that their funding is dependent upon student outcomes. That’s a model in our state.

            We are really in a community that is all about leveraging resources and not duplicating services. With all of the funding losses, we've actually increased our commitment to partnering because that’s the only way to get things done.

  Post-Secondary Hand-Off

  Duffield: In another interesting partnership, Colorado has taken the McKinney–Vento Homeless Act model for K-12 and basically laid it on top of the higher ed system. So, now every college campus in Colorado has a single point of contact (SPOC). They function as counterparts to the liaison, only in higher education. This has sparked a tremendous increase in youth not just getting into college, but staying in college.

  Haller:  The ability to have a warm hand-off to these unaccompanied youth to post-secondary is critical. It's been amazing. Kids who have said, "There’s no way I can do this," are going to college because they have a person who is supporting all aspects of their entering into and being successful in college. That’s been beautiful.

  Monitor: In terms of the recession’s aftermath, statistics are pointing toward job growth, but are they the types of jobs that are lifting people out of homelessness?

  James: We’re seeing a lot of service jobs created — food service types of jobs and other lower-paying jobs. When you look at someone that’s making minimum wage —sometimes they don’t even make that in the restaurants at $2 an hour, plus whatever they can get in tips — we’re finding that people cannot afford apartments. In Austin, for example, the fair market rent for a two-bedroom apartment, which a family would need, is anywhere between $750 on the very, very low end all the way up to $1,000 a month. When you do the math, you can see that an $8.25 an hour job just won't begin to pay those costs.

            Zib said these families are being forced out into the exurbs. We’re finding that too. People might have jobs downtown, maybe in janitorial work or other very low-paying jobs, and they’re having to move way out of Austin in order to find a place to live. If they're lucky enough to have a vehicle, just the commuting costs take a day’s wages to get back and forth to work for a week. They're caught between a rock and hard place. There’s just no place for them to be. We’re seeing more and more folks like this.

            We also look at the people who are coming out of youth correctional facilities. It’s very difficult for them. Employers are reluctant to hire them. A lot of them are becoming teen parents. So it’s a vicious cycle. When you get into that downward vortex, especially as a young family or an unaccompanied homeless youth, it’s really hard to lift yourself out of that if there’re no good educational and other support systems in place. If there’s no supportive housing or medical services, if they can’t get a high school diploma and then get into some kind of a program, that’s a real issue.

            There’re a lot of families where the parents work, but they’re still homeless. That’s a hard message to convey to people because the average person believes that if you’ve got a job in this country, then certainly you have housing. And nothing can be further from the truth. You could have two jobs sometimes and still not be able to afford housing.

  Inadequate Wages

  Hinz:  We see the very same things up here in Minnesota. We thought we had a three-legged stool to advocate about housing, jobs and child care. Transportation has become like the fourth leg.

  Haller: We have about 87 percent of our homeless families that are working at least one if not two jobs in single and double parent households. When every other aspect of the market crashed, our housing market kept the rents at the same levels that they were.

  We’ve calculated that a person has to work 60 hours a week at a $14-an-hour job to afford a two bedroom apartment. In Grand Junction, there are no $14-an-hour jobs.

  Duffield:We have to be very concerned about the funding question. Even though we’ve got very positive collaborations — we’ve got faith-based and civic organizations, and others that are supplementing the effort — if there is not some political will found, there are going to be cuts to all these programs. I’ll just give you one example. I got an email yesterday from the Connecticut State Head Start program. One of their great Head Start programs was doing the best at reaching homeless families, doing extreme outreach. All six of its staff members were laid off because of sequestration. That program, essentially, is no more.

  We’ve been a little bit buffered thus far, because education is forward funded. If you take 5 percent of a $62 million program, it doesn’t seem like a whole heck of a lot. But housing, for example, is looking at a 9 percent cut across-the-board. So, I am very concerned about the potential for sequestration in the other cuts that are anticipated by 2014.

  Look next week for parts 2 and 3 of the Homeless Education Roundtable.
• June 9, 2013

  You Can't Do More With Less - So Let's Do Better!!

  At our Spring Forum in May, Phil Maestri from the U.S. Department of Education’s (ED) Risk Management Service made a critical statement that has stayed with us since that time (though we paraphrase it here).  Referencing upcoming budget cuts, Maestri said that we can’t always do more with less, but we can try to do better – and we couldn’t agree more.  Instead of thinking that, under sequestration, compliance is not possible, children will not be educated, the sky is falling and the world is coming to an end… let us instead find the silver lining.  Federal education laws have exceptions, waivers and other planning tools for a reason.  This is a great time to strengthen internal controls, look at all available flexibility and help your agency do better with less!

  The Bad News – Cuts Are Inevitable

  Congress continues to debate (and debate and debate) everything – including how, and how much, to slash federal spending.  Like most other Congressional debates in recent memory, this one seems interminable and, at the moment, has no clear outcome.  But one thing has become clear: more funding cuts are on the horizon for federal education programs.  For states and school districts (aka local educational agencies or LEAs), the pool of available funds will shrink for a couple reasons. 

  First, and most obvious, is everyone’s new favorite word: sequestration.  The automatic, across-the-board funding cuts will start to affect day-to-day operations for most ED grantees with the July 1 funding allocations (though many grantees, especially those that receive funding under Head Start or Impact Aid, have already begun to feel the pain).  Sequestration will also be responsible for additional cuts to the 2013-14 school year funding, most likely taking effect in October 2013. 

  In fact, as currently written, the sequestration cuts would last through 2021. The good (or bad) news is that this cut depends on how Congress structures appropriations and whether ED again delays cuts until the July 2014 allocation, as it did in FY 2013.  Though the answer of whether Congress will actually complete appropriations bills at all this year is still up in the air.

  As sequestration continues into federal FY 2014, the exact effect on specific federal programs is very unclear.  House Republicans have proposed budget allocations that would trim nearly 20 percent from education programs in the interest of preserving funds for Defense and Homeland security operations.  Meanwhile, Senate Democrats would attempt to only marginally trim spending on domestic social programs and would offer a $100 billion stimulus for activities including school modernization. 

  With such different perspectives coming to the negotiating table, what do we think will happen?  In a word: nothing.  Congress most likely will not be able to compromise and will end up passing yet another temporary continuing resolution (CR). If the total does not fall within the caps established by the Budget Control Act, this could mean more across-the-board cuts rather than the  nuanced, considered cuts that grantees have been told to expect in sequestration years beyond FY 2013.  So yet again, the amounts of the cuts remain unknown.  If Congress does pass a CR, the most likely method of trimming the budget will be with yet another round of across-the-board spending cuts.  While according to calculations from the U.S. Office of Management and Budget (OMB), non-defense discretionary spending like education must be reduced by 7.3 percent to meet the requirements of the sequester, it is likely that Congressional Republicans will attempt to shift more cuts over to domestic social programs in order to preserve spending for defense and homeland security.

  At this point, the best-case scenario for education programs may be complete Congressional gridlock.  If Congress does not enact legislation cutting spending by the required amounts by the time they adjourn for the year in December (or, if they give up early, in late November), automatic, across-the-board budget cuts will be implemented – likely in the range of that 7.3  percent number. While we wouldn’t necessarily cheer for inaction, it may end up resulting in smaller cuts.

  The Good News – Keep Your Head Up!

  We know that funding cuts do not bring fiscal flexibility, but this is a great opportunity to review your current processes, to make smarter and more thoughtful choices, and to utilize the available exceptions, waivers, and other wiggle room so that you can remain in compliance and use your funds in the most efficient way possible.

  Planning, Set-asides and Carryover

  States and districts should sit down and look at their grant applications as if completing them for the first time.  Resist the urge to copy and paste.  Break away from the pattern of doing what you have always done (which in itself could be an internal control weakness!).  Look at your planning process and ask: Where are our priorities?  What are our largest areas of weaknesses and how do we address those needs first?  Make sure that every dollar of your budget has been placed in a line item after a thoughtful process to determine where the needs of your agency are.   If you continue to carry over funds in the same budget categories, move those funds (to the extent possible) to other areas where you are lacking funds. This in itself strengthens your internal control process and will help you use each dollar the best way possible! 

  Many grant programs contain both optional and mandatory set-asides.  Grantees should note that while funding cuts do not change mandatory set-aside requirements, they could alter discretionary set-aside options.  Luckily, many mandatory ESEA set-asides (such as choice and supplemental educational services) are waived in states with ESEA waivers, providing eligible states and districts greater flexibility over the use of their ESEA funds.  Use optional set-asides with caution so that funds are going more to the schools and less to ancillary activities, such as professional development. Also, remember that optional set-aside dollars do not need to remain in that same set-aside category in the carryover year – so throw them back into the general pot of funds and move forward.  Also, keep in mind funding flexibility available in some programs, such as ESEA consolidated administration and schoolwide pooling.  If you had not considered these options in the past – maybe now is the time!

  Fiscal Requirements and Flexibility

  While programmatic fiscal requirements remain unchanged, there are ways to take advantage of exceptions, exclusions, and waivers so that you can remain in compliance!

  Let’s start with supplement, not supplant. Requirements that grantees use federal funds to supplement and not supplant state and local (and sometimes federal) dollars will remain in place despite reductions in federal funding.  Grantees should carefully document funding decisions, and should keep in mind that activities funded with non-federal dollars during years when the federal government’s support is low normally will be expected to keep that funding source even if the availability of federal dollars improves.

  Grantees should remember that there are three situations which trigger the presumption of supplanting:

  1. If an LEA uses federal funds to provide services that the LEA was require to make available under federal, State, or local law;
  2. If an LEA uses federal funds to provide services that the LEA provided with non-federal funds in the previous year; and
  3. If an LEA uses Title I funds to provide services to children participating in a Title I program that the LEA provided with nonfederal funds to children not participating in Title I. 

  The first presumption has a high bar as far as rebutting goes, but the ESEA waivers have provided some relief (as discussed in a previous article by Leigh Manasevit).  There is, however, flexibility regarding the second and third presumptions; under certain circumstances, these presumptions can be “rebutted.”  Just be sure to document this financial decision, which means more than simply showing budget decreases.  The key to rebutting supplanting is proper (and prolific!) documentation.

  Next, we have maintenance of effort requirements in the ESEA, the Individuals with Disabilities Education Act, Part B (IDEA), and other statutes.  Grantees must consider new expenditures or funding carefully, as they will be expected to maintain the same level of fiscal support from non-federal sources even if federal funding rebounds.  But almost all the MOE requirements have either an available waiver or available exceptions that can help a state or district reduce their current requirements.  Now is the time to closely look at those options and try to take advantage of any way to reduce the current amounts that a state or district must meet!

  So what does all this mean?  Well, it’s no secret that school and district administrators are tearing their hair out over the upcoming loss of federal funds.  Those budget cuts will mean making tough choices about programs, projects, and personnel that will affect your schools, students, and communities.  But they can also present an opportunity to reexamine and streamline your expenditures and maximize your federal, state, and local dollars to do better – even if you have to do it with less.  So hang in there… and keep watching for those silver linings!

  Julia Martin, Esq., is legislative director for the law firm of Brustein & Manasevit. Tiffany Winters is a partner with the firm.
• June 4, 2013

  Sen. Tom Harkin Introduces ESEA Reauthorization

  Sen. Tom Harkin (D-Iowa), chairman of the Senate Health, Education, Labor and Pensions Committee, has just submitted a bill to reauthorize the Elementary and Secondary Education Act. The still-unnumbered bill will be “marked up” — that is, given a line-by-line review with possible amendments — next Tuesday.

  This represents the first positive action in the 113^th Congress to renew the ESEA, which has been scheduled for reauthorization since 2007. Similar measures have been introduced each Congress since then, but have always foundered on partisan disagreements. Given the conservative ascendance in the House, this new effort will face similar obstacles.

  One item in the measure that stands out immediately is that the bill would adopt the “priority” and “focus” school accountability structure being implemented under the Obama administration’s ESEA Flexibility initiative.

  It would also do more to ensure equity in resources across schools, including reforming the Title I comparability provision.  In particular, school districts would have to ensure Title I schools receive funding comparable to non-Title I schools, measured by actual dollar expenditures, not proxies like “full-time equivalent” positions. The bill would also eliminate the longstanding exclusion of seniority pay from comparisons of teacher salaries.

  The HELP Committee has posted a summary of the bill here.
• May 30, 2013

  ED Reconsidering SIG Mandate to Fire Principals

  The U.S. Department of Education is considering loosening a controversial School Improvement Grant (SIG) mandate that requires firing principals in long-troubled schools.

  The requirement is part of SIG’s turnaround and transformation models, meaning it applies to most of the schools receiving SIG funds.

  Noelle Ellerson, assistant director for policy analysis at the American Association of School Administrators, noted the possible move in a recent speech at the National Association of Federal Education Program Administrators in Washington, D.C.

  “We anticipate that the department of education will announce that it soon will be opening up the SIG regulations to consider that strict requirement that you have to fire the principal to require that you perform an evaluation before you are forced to fire your principal,” she said.

  If it comes to pass, the change would not go into effect until the 2015-16 school year, reflecting FY 2015 SIG funds, Ellerson said.

  This would further align SIG with ESEA Flexibility requirements. ESEA Flex requires that you either fire the principal or make a formal evaluation that the principal is capable of leading reform.

   

More

• June 18, 2013

  HUD, DOJ Release Joint Guidance on Accessible Housing

  Two federal agencies have joined forces to remind builders that certain housing must be designed and constructed with accessibility in mind.

  In Accessibility (Design and Construction) Requirements for Covered Multifamily Dwellings Under the Fair Housing Act, the U.S. Department of Justice and the U.S. Department of Housing and Urban Development reinforce builders’ responsibility to build multifamily housing so it is accessible to individuals with disabilities.

  The Fair Housing Act requires that covered housing built for first occupancy after March 1991 have accessible design and construction features.

  The guidance was created to “assist design professionals, developers and builders in understanding and meeting their obligations,” according to HUD. “This new guidance promotes access and helps developers construct housing that complies with the Fair Housing Act from the start so they don’t have to retrofit later,” said HUD Assistant Secretary for Fair Housing and Equal Opportunity John Trasviña in a press release.

  HUD and DOJ teamed up in releasing the guidance because they share responsibility for enforcing FHA. HUD investigates individual complaints of discrimination; DOJ takes legal action when it believes someone is engaged in a pattern or practice of discrimination.

  HUD reports that since January 2009, along with its partners, it has investigated and either conciliated or charged 300 cases that alleged violations of FHA. Also since that time, DOJ has filed 141 cases to enforce FHA, 19 of which have alleged discrimination based on a failure to design and construct multifamily housing in compliance with the law.

  The following questions and answers are adapted from the guidance document. Visit HUD's website for the full guidance.

  Q: What types of housing do FHA’s design and construction requirements cover?

  A: FHA requires all “covered multifamily dwellings” designed and constructed for first occupancy after March 13, 1991, to be readily accessible to and usable by persons with disabilities. In buildings with four or more dwelling units and at least one elevator, all dwelling units and all public and common use areas are subject to FHA’s design and construction requirements. In buildings with four or more dwelling units and no elevator, all ground floor units and public and common use areas are subject to the law’s design and construction requirements. This can include condominiums, cooperatives, apartment buildings, vacation and time share units, assisted living facilities, continuing care facilities, nursing homes, public housing developments, transitional housing, shelters designed as a residence for homeless persons, dormitories, hospices, extended stay or residential hotels and more.

  Q: What are the accessible features FHA requires?

  A: FHA requires that in covered multifamily dwellings, the public and common use areas be readily accessible to and usable by persons with disabilities. Additionally, all doors designed to allow passage into and within all premises of covered dwellings must be sufficiently wide to allow passage by persons with disabilities, including persons who use wheelchairs. All dwellings must also have:

  • an accessible route into and through the dwelling unit;
  • light switches, electrical outlets, thermostats, and other environmental controls in accessible locations;
  • reinforcements in bathroom walls to allow the later installation of grab bars; and
  • usable kitchens and bathrooms such that an individual using a wheelchair can maneuver about and use the space.

  Q: Do FHA’s design and construction requirements, or any other laws mandating accessible design, apply to detached single family homes?

  A: Detached single family houses as well as duplexes and triplexes are not covered by FHA’s design and construction requirements. Condominiums that are not detached are covered.

  However, any housing (including single family detached homes) constructed by federal, state or local government entities or constructed using any federal, state or local funds may be subject to accessibility requirements under laws other than FHA. These laws — particularly Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and the Architectural Barriers Act — have requirements for accessibility that exceed those contained in the Fair Housing Act. In addition, state and local building codes may contain accessibility requirements for detached single family homes and other housing.

  Q: Do FHA’s design and construction requirements apply to the alteration or renovation of residential properties designed and constructed for first occupancy on or before March 13, 1991?

  A: No. Alterations, rehabilitation or repair of pre-existing residential buildings are not covered because first occupancy occurred before the effective date of FHA’s design and construction requirements.

  Q: What is an accessible route?

  A: An accessible route is a continuous, unobstructed path connecting accessible elements and spaces in a building or within a site that can be negotiated by a person with a severe disability using a wheelchair, and that is also safe for and usable by people with other disabilities. Interior accessible routes may include corridors, floors, ramps, elevators and lifts. Exterior accessible routes may include parking access aisles, curb ramps, walks, ramps and lifts.

  Q: Does FHA permit covered multifamily dwellings to be designed and constructed in a manner that requires persons with disabilities to use an indirect or circuitous route to enter a building or unit or to use locks or call buttons that are not required of other persons?

  A: No. Individuals with disabilities must be able to enter their dwellings through the same entrance that is used by other persons to enter their dwellings. In addition, routes to the primary entrances of buildings and dwelling units are public and common use areas and must be readily accessible to and usable by people with disabilities. Furthermore, the accessible route to the primary entrance must not place special conditions on persons with disabilities such as a special key, an attendant or additional waiting periods that are not imposed on others.

  Q: How many entrances to a covered multifamily dwelling must be accessible?

  A: At least one accessible entrance to each covered dwelling unit and to buildings containing covered dwelling units is required unless it is impractical to do so.

  Q: If I follow my state or local building code, am I safe from liability if a building does not comply with the Fair Housing Act’s design and construction requirements?

  A: No. FHA’s design and construction requirements are separate from and independent of state and local code requirements. If a state or local code requires, or is interpreted or applied in a manner that requires, less accessibility than FHA’s design and construction requirements, FHA’s requirements must still be followed.

  Q: When would both Section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act apply to the same property and which standard would apply in this situation?

  A: If housing was built for first occupancy after March 13, 1991, and federal financial assistance is involved, both Section 504 and the Fair Housing Act apply. The accessibility standards under both laws must be used.

  Q: What if the Americans with Disabilities Act and the Fair Housing Act requirements both apply to the same property?

  A: In cases in which a development is subject to the accessibility requirements of more than one federal law, the accessibility requirements of each law must be met.

  Properties FHA and ADA both cover must be designed and built in accordance with the accessibility requirements of both laws. To the extent that the requirements of different federal laws apply to the same feature, the requirements of the law imposing greater accessibility requirements must be met.

  For example, a hotel may allow both residential and short term stays. In that case, both ADA and FHA will apply to the facility. Covered multifamily dwellings that are funded or provided through programs operated by or on behalf of state and local entities (for example, public housing and homeless shelters) also are subject to the requirements of ADA’s Title II. Moreover, a rental office in a multifamily residential development, a recreational area open to the public or a convenience store located in that development would be covered by FHA and ADA’s Title III.
• June 12, 2013

  Employer Narrowly Avoids Penalty for Enforcing ‘Without Restrictions’ Return-from-Leave Policy

  Employers should steer clear of enforcing a “without restrictions” return-from-leave policy because it constitutes a violation of the Americans with Disabilities Act.

  But if an employee cannot prove that she suffered from a disability of which her employer was aware at the time of her termination, an ADA claim will not hold up in court. Nor will an employee’s FMLA claim, and its proximity to firing, be enough to insulate her from a pending dismissal.

  These findings by the U.S. District Court for the Middle District of Tennessee, Columbia Division were enough for the court to award a summary judgment for the employer in Dunavant v. Frito-Lay, 2013 WL 816673 (M.D. Tenn., March 5, 2013).

  Facts of the Case

  Donna Dunavant worked for more than 11 years as an at-will employee at Frito-Lay’s food processing and manufacturing plant in Pulaski, Tenn. Frito-Lay fired Dunavant on June 29, 2010, for repeatedly failing to perform her job responsibilities as a carton-packing system operator. Dunavant claimed in court that she was terminated because of her disability. In her last year of employment, Dunavant received several oral and written warnings about her work performance, including a final notice on Feb. 16, 2010 that any further performance problems could result in either a suspension or termination.

  On April 5, 2010, Dunavant took approved FMLA leave and returned to work on June 7, 2010 with her health care provider’s written clearance, which said she could work full-time and with no restrictions.

  Dunavant claimed that her doctor wrote “without restriction” on the form as an accommodation to her because Frito-Lay has a requirement that employees return to work from a leave of absence “100 percent healed” or “without restriction.”

  Dunavant also claimed that her doctor told her that she was still “extremely ill,” and that if she did not continue to take her prescribed medicine and was subjected to stress, she would have a relapse that would require immediate medical intervention.

  During the second shift on June 27, 2010, Frito-Lay discovered that Dunavant failed to properly code cracker boxes. Proper coding is important, Frito-Lay said, because the company uses the codes to track the causes of manufacturing problems if there is a consumer complaint or quality issues arise. Following a one-day suspension and investigation, Frito–Lay determined that Dunavant failed to properly monitor and change the code dates, which led to the incorrect printing of production information on roughly 144 cases of packaged product. Because Dunavant had already been issued a final warning for poor job performance on two previous occasions in the past year, Frito-Lay fired her.

  Court Weighs in

  While it is true that “100 percent healed” policies can constitute a per se violation of ADA because they do not provide for an individualized assessment, “a 100% ruleis impermissible [only] as to a disabled person” and “one must first be disabled.” (Henderson v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001))

  The Tennessee district court ruled that Dunavant could not advance her ADA and Tennessee Disability Act claims because she failed to present evidence that: (1) she was suffering from a disability at the time of her termination; and (2) her employer was aware of that disability.

  Dunavant asserted that her doctor returned her to work without restrictions only because Frito-Lay had a “without restrictions” policy. But the court ruled that Dunavant’s “recitation of what her doctor allegedly told her is hearsay…[and] not supported by competent evidence.”

  The court also dismissed the relevance of a coworker’s supportive testimony because it did not indicate when the alleged statements by a human resource representative about a “no restriction” policy were made, or even if they were made at a time close to when Dunavant took FMLA leave.

  Finally, it did not persuade the court that Dunavant’s termination occurred just 22 days after returning from FMLA leave because her “documented performance issues began well before she used FMLA leave.”

  Employer Takeaways

  Poor performance is an obvious and legitimate non-discriminatory reason for an employer to take adverse employment action against an employee. Hence, employers would be wise to document all job performance issues so that there is a recorded history that supports a termination decision.

  In Dunavant, Frito-Lay practiced what appeared to be patience and fairness in dealing with an employee who was allowed multiple chances to cure her performance woes.

  Frito-Lay’s “Progressive Coaching Policy” demonstrated to the court that the company attempts to treat all employees equitably by following a discipline system that includes counseling, oral warnings, written warnings, and what it calls “Decision Making Leaves.”

  Frito-Lay generally issues DMLs as an alternative to discharge after an employee has received a written warning. Those given a DML are sent home so that they can “decide whether they want to commit to changing their behavior and continue working at Frito-Lay.” By instituting this type of language in your employee handbook, you would provide a clear message to your employees (and the courts, if necessary) that your company does not take firing an employee lightly.
• June 7, 2013

  New DOJ Disability Rights Chief Signals More Vigorous Enforcement Activity

  Now we have it from the person in charge: the U.S. Department of Justice will not only continue its strong enforcement of the Americans with Disabilities Act, but also venture into new arenas that affect people with all types of disabilities, various types of public accommodations, and state and local governments.

  Rebecca Bond, who became chief of DOJ’s Disability Rights Section in March and formerly served as a deputy chief of the division’s Housing and Civil Enforcement Section, made her first public presentation in that capacity as keynote speaker at an April 15 conference. The conference, hosted semi-annually by the National Association of ADA Coordinators, offers ADA training and insights from current and former officials from DOJ and the U.S. Equal Employment Opportunity Commission, as well as attorneys, architects, risk management officials and current and former ADA coordinators.

  Education and Technology

  Heralding a “critical juncture” between technology and people with disabilities and pledging to actively increase DOJ’s profile in K-12 and secondary education settings, Bond recounted several recent developments:

  • DOJ filed a brief in the successful appeal by a student with a hearing impairment in the 8th Circuit case of Argenyi v. Creighton University (703 F.3d 441 (2013)). DOJ supported the right of a student with a hearing impairment to be provided Communications Access Real Time Transcription and interpreters — his preferred means of communication — by a medical school. DOJ argued that the ADA and Section 504 of the Rehabilitation Act require covered entities to provide auxiliary aids and services to enable individuals with communication disabilities to participate fully and equally in their programs.
  • The department entered into an agreement with Lesley University about its mandatory meal plan, under which the university will provide ready-made gluten- and allergen-free food options for students.
  • DOJ entered agreements with two private schools (one about the alleged failure to admit a child with Down syndrome and other about the alleged failure to provide reasonable modifications to permit a child with bi-polar disorder and other disabilities to attend a private school accompanied by his service animal).
  • Six colleges agreed not to require the use of e-book readers unless they are accessible.
  • DOJ argued in NAD v. Netflix that the website and the “Watch Instantly” service (streaming video) of Netflix is a public accommodation subject to Title III of the ADA, even if it has no physical structure where customers come to access its services.

  Individuals with Epilepsy

  Bond promised a “heightened focus” on the rights of people with epilepsy, which some courts had not considered a disability before the ADA Amendments Act. She illustrated this focus with a DOJ agreement with the University of Medicine and Dentistry of New Jersey, concerning the alleged rescission of admission of two individuals to two medical schools because they had Hepatitis B, based on “wrong assumptions” about what they can do as part of the curriculum.

  Health Care

  Touting DOJ’s Barrier-Free Health Care Initiative, Bond also pledged that the department will step up activities to ensure effective communication by health care providers and physical access to their facilities and equipment.

  She cited 15 agreements already reached through this nationwide effort — with current participation by more than 40 U.S. Attorney’s offices. Most recently, three health care providers agreed to make changes as a result of allegations about their failure to provide interpreters for people who are deaf.

  Other Public Accommodations

  DOJ also is continuing its efforts to ensure access to other types of public accommodations. For example, the U.S. Attorney’s office of the Southern District of New York is reviewing 50 top-rated restaurants for compliance with the barrier-removal provisions of Title III of the ADA.

  The Future of Project Civic Access

  An April 19 agreement with the City of Jacksonville, Fla., brings to 204 the number of agreements reached under Project Civic Access, the department’s comprehensive reviews of the programs and activities of towns, counties and cities. Bond said that transportation facilities soon will be included in the reviews and reminded the audience that recreation facilities are newly regulated under the 2010 ADA accessibility standards for new construction and alterations, hinting that existing recreation facilities such as swimming pools, playgrounds, parks and golf courses also may be examined.

  Expanding Olmstead Principles

  DOJ has moved to intervene as a plaintiff in a case alleging that Oregon’s reliance on sheltered workshops, at the expense of integrated employment services for people with various disabilities, violates the ADA’s integration mandate as interpreted in the Supreme Court’s Olmstead decision. This move follows a letter from DOJ to the state in the summer of 2012, finding that Oregon's reliance on sheltered workshops violated Olmstead. Bond also noted DOJ’s intention to apply the “integrated setting” provisions not only to state-operated psychiatric institutions but also to privately-run institutions that are covered by the ADA.

  Rulemaking

  In July 2010 DOJ issued advance notices of proposed rulemaking on four issues: accessibility of web information and services; movie captioning and video description; accessibility of next generation 9-1-1; and equipment and furniture.

  DOJ has taken no public action on any of these, and little was mentioned as part of the NAADAC presentation. But Bond did note that DOJ has urged compliance with the effective communication provisions of the statute and regulations as to websites (for example, in the Netflix brief) and predicted publication of a proposed rule on web accessibility in 2013.

  The Upshot

  So what do those covered by the ADA need to know? Expect stronger enforcement across the board — from health care to education, from technology to barrier removal in existing facilities — from both the Disability Rights Section and U.S. Attorney’s offices on the more local level. Don’t be surprised if recreation facilities soon come under DOJ’s watchful eye. And continue to keep up with developments in application of the ADA to technology and the internet. In particular, watch for proposed rules on web accessibility in 2013, which in the first round will most likely be limited to state and local governments, as opposed to public accommodations.

  For more information

  For details on DOJ’s Disability Rights Section, visit www.ada.gov. For more information about NAADAC and its conferences, visit http://askjan.org/naadac.

  Irene Bowen is President of ADA One, LLC, a consulting firm she formed after she served as a deputy chief of the Disability Rights Section at DOJ, as well as deputy federal counsel of the U.S. Access Board, during her 30-year federal career. She has authored several ADA guides, including one for non-profits published by the Chicago Community Trust, and provides training and consulting services. She is a member of the NAADAC Board of Directors. She can be reached at IreneBowen@ADA-One.com.
• June 5, 2013

  Stakeholders Urge Supreme Court to Clarify IDEA Tuition Reimbursement

  The National School Boards Association has asked the U.S. Supreme Court to overturn a 10th U.S. Circuit Court of Appeals ruling that granted tuition reimbursement to parents who unilaterally placed their daughter in a private treatment facility.

  The 10th Circuit created its own tuition reimbursement test in the Individuals with Disabilities Education Act case, arguably furthering a split among the circuit courts on the issue.

  The case, Jefferson County School District R-1 v. Elizabeth E. (702 F.3d 1227 (2012)), involved a student with bipolar disorder and other conditions who received special education services as part of an individualized education program  When Elizabeth was in eighth grade, her parents questioned whether the school district was providing her with a free, appropriate public education  as required by IDEA. Eventually, the school district agreed to pay for her to attend private school, as long as it could convene an IEP team meeting and evaluate Elizabeth.

  Her parents agreed, but before the evaluation could take place, they placed her in an out-of-state residential psychiatric hospital because her behavior had deteriorated. They provided written notification to the school district that she would be there for six to eight weeks. The district replied that it no longer had any obligation to pay Elizabeth’s private school tuition. The agreement was moot, the school district claimed, because Elizabeth's parents had placed her in another state. “As such,” the school said, “Elizabeth is not a District student, and the District has no on-going responsibility to Elizabeth under the IDEA.”

  The parties eventually ended up in the U.S. District Court for the District of Colorado, which explained that reimbursement would be appropriate if:

  1. the school district violated the IDEA by failing to provide Elizabeth a FAPE;
  2. the private school placement was appropriate;
  3. the parents gave 10 days’ advance written notice to the school district before Elizabeth’s removal from the public school;
  4. the parents made her available for an IEP evaluation; and
  5. the parents acted reasonably.

  The lower court found that Elizabeth’s parents met all of those requirements.

  On appeal in the 10th Circuit, the school district argued that an out-of-state private school was not an appropriate placement under the IDEA and that her psychiatric conditions — not her educational needs — were the primary factors in her parents’ decisionmaking.

  In considering whether this allegation had any merit, the court turned to other circuits in search of a test, as the question had not yet been addressed in the 10th Circuit.

  The 3rd Circuit requires reimbursement for a residential placement if it is necessary for educational purposes or if it “is a response to medical, social or emotional problems that are segregable from the learning process” (Kruelle v. New Castle County School District, 642 F.2d 687 (3d Cir. 1981)). The 4th, 6th and D.C. Circuits have all adopted this test. The 9th requires reimbursement for such a placement if it is “considered necessary for educational purposes or ... a response to medical, social, or emotional problems that is necessary quite apart from the learning process” (Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635 (9th Cir. 1990)).

  The 5th Circuit, however, requires tuition reimbursement only when a placement is essential for the child to receive a meaningful educational benefit and primarily oriented toward enabling the child to obtain an education (Richardson Independent School District v. Michael Z, 580 F.3d 286 (5th Cir. 2009)). Likewise, the 7th Circuit says that the “essential distinction is between services primarily oriented toward enabling a disabled child to obtain an education and services oriented more toward enabling the child to engage in non-educational activities. The former are ‘related services’ within the meaning of the statute, the latter are not” (Dale M. v. Board of Education of Bradley-Bourbonnais High School District No. 307, 237 F.3d 813 (7th Cir. 2001)).

  The school district urged the court to adopt the 5th and 7th Circuits’ tests. The parents argued that it should use the 3rd Circuit’s.

  The court instead used IDEA’s statutory text to create a new four-step test.

  According to the 10th Circuit, a court must take the following steps in deciding whether tuition reimbursement is appropriate:

  1. Determine whether the school district provided or made a FAPE available to the disabled child in a timely manner; if it did, the unilateral parental placement is not reimbursable.
  2. Determine whether the private placement is a state-accredited elementary or secondary school; if not, the placement is not reimbursable.
  3. Determine whether the private placement provides special education, that is, “specially designed instruction . . . to meet the unique needs of a child with a disability”; if the placement provides no such instruction, it is not reimbursable.
  4. If the private placement provides additional services beyond specially designed instruction to meet the child’s unique needs, determine whether such additional services can be characterized as “related services” under the act, that is, “transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education,” excepting medical services which are not for diagnostic and evaluation purposes. If the additional services cannot be so characterized, they are not reimbursable.

  Under that new test, Elizabeth’s parents were still entitled to reimbursement, the 10th Circuit concluded. Now, the school has petitioned the Supreme Court, asking it to clarify when tuition reimbursement is appropriate.

  NSBA, in its amicus brief filed in support of the school district, says that the 10th Circuit went too far.

  “Residential placements like the one in this case, which separate a child from his or her public school peers, should be a last resort under [IDEA’s least restrictive environment] mandate,” the association said. “Yet the Tenth Circuit’s test allows residential placements in a broad range of cases — practically as a first resort. The conflicting statutory obligations leave schools and parents without clear guidance about when a residential placement for treatment of a student’s mental health issues is appropriate and reimbursable under the IDEA.”

  The High Court will decide June 20 whether to deny or grant certiorari. The Court generally announces such determinations on the Monday after it arrives at them.
• May 30, 2013

  Old ‘Disability’ Definition Applies to Employee’s Injury, so Claim Fails, Says 10th Circuit

  There is a growing legal precedent regarding when courts can evaluate an Americans with Disabilities Act claim under a new, broader disability definition: the adverse employment actions at issue must have occurred after the Jan. 1, 2009, effective date of the ADA Amendments Act.

  For an employee who allegedly was discriminated against in 2008, this meant his ADA claim failed. The 10th U.S. Circuit Court of Appeals affirmed a lower court’s dismissal of ADA and Family and Medical Leave Act claims against his employer. The employee, a field claims adjuster, had sued the employer when he lost his job after injuring his knee so badly that he said it prevented him from climbing ladders and performing roof inspections, two essential functions of his job. The case is Wehrley v. American Family Mutual Insurance Co., 2013 WL 1092856 (10th Cir., March 18, 2013).

  Because the facts in the case took place before the ADAAA’s enactment, the court applied the law as it stood in 2008, when a more-limited definition of “disability” existed that the employee could not meet. By following the letter of the old law, the court aligned with its sister circuits in concluding that the ADAAA does not apply retroactively. (See ADA Amendments Act Is Not Retroactive, 4th Circuit Finds, Agreeing with Other Courts.)

  Facts of the Case

  Scott Wehrley worked for nine years as a field claims adjuster for American Family Mutual Insurance Co. While investigating a roof claim in June 2007, Wehrley fell from a ladder and injured his knee and back. He filed a workers’ compensation claim, and his supervisor assigned him to desk work until he could walk without crutches.

  Six months after the fall, a doctor removed all of Wehrley’s work restrictions. However, Wehrley challenged the health care assessment and underwent a separate, independent medical examination. This second exam resulted in restrictions that prevented Wehrley from performing field claims that involved roofs or ladders.

  In July 2008, a physician determined that Wehrley needed knee surgery, but Wehrley postponed the July 30 knee operation because AFMIC’s workers’ compensation insurer, Sentry, declined coverage. Wehrley told his supervisor on Aug. 6 that he planned to apply for FMLA leave once he heard back from his personal insurance company concerning coverage for surgery.

  AFMIC informed Wehrley on Aug. 22 that his job would be in jeopardy if he could not return to roof claims. His supervisor told him that “climbing roofs” was an important part of the job and Wehrley’s failure to perform roof inspections had increased the work of other adjusters.

  One week later, AFMIC fired Wehrley and cited his inability to perform roof inspections as a reason for the termination.

  Courts Weigh in

  Rather than deciding whether Wehrley was entitled to reassignment, the circuit court said it took the same tack as the district court and considered whether Wehrley was disabled under ADA at the time of his termination. The pre-2009 U.S. Equal Employment Opportunity Commission regulation defined “substantially limited” for ADA disability purposes as being:

  • unable to perform a major life activity that the average person in the general population can perform; or

  • significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity.

  Wehrley did not introduce enough evidence to overcome summary judgment on whether he was substantially impaired in a major life activity, the circuit court ruled. “The medical report said only that prolonged walking or standing caused [Wehrley] knee pain. It does not say the injury restricted [his] ability to walk or stand in the ordinary course of a day,” the circuit court said.

  Wehrley’s assertions did not suggest that AFMIC fired him for asserting his ADA rights. Instead AFMIC fired him for his inability to perform the functions of a field claims adjuster, the circuit court ruled. The company’s failure to reassign Wehrley to a different position and its unwillingness to rehire him did not undermine the company’s asserted justification for the firing, the circuit court said. “These facts might have been relevant to [Wehrley’s] ADA discrimination claim if we had concluded [he] was disabled under the ADA,” the court said.

  Regarding the FMLA retaliation claim, the court determined that none of the evidence suggested that AFMIC was opposed to Wehrley taking FMLA leave.

  Employer Takeaways

  Under the ADAAA, employers must construe the term “substantially limited” broadly and in favor of expansive coverage, which may have strengthened Wehrley’s argument had that language applied to his claim. Furthermore, mitigating measures may not be taken into account when determining whether an employee has a disability. He or she must be evaluated in an unmitigated state.

  Employers have a duty, in certain circumstances, to reassign a disabled employee to a vacant job within the company. But an employer is not required to reassign an employee who is: (1) unable to perform the essential functions of his or her current job; and (2) not disabled as defined by ADA.

  To request reassignment, an employee need not use “magic words,” but must convey to the employer a desire to remain with the company despite his or her disability and limitations.

  Because Wehrley was not considered “disabled,” it did not matter to the court that he may have been qualified to perform the essential functions of another position.

  FMLA requires an employee to provide his employer “not less than 30 days’ notice” before taking leave for foreseeable medical treatment. See 29 U.S.C. §2612(e)(2). This notice of intent to take FMLA leave is considered a “protected activity” for purposes of an FMLA retaliation claim.

  The Wehrley court, however, did not view the proximity of the firing to the leave notice as suspicious because the supervisor not only supported his employee’s FMLA leave request, he suggested it.
• May 22, 2013

  Feds to Step up Enforcement of Pregnant Worker Job Rights

  True or False: An employer is free to fire a pregnant employee once she has exhausted all her leave under the Family and Medical Leave Act.

  The most accurate answer: It depends.

  The FMLA requires covered employers to provide up to 12 weeks of job-protected leave for the birth of a child.

  On the other hand, the Americans with Disabilities Act Amendments Act increased employers’ obligation to accommodate any worker with an impairment that substantially limits one or more life activities. "Leave," says U.S. Equal Employment Opportunity Commission Chair Jacqueline A. Berrien, “is often the reasonable accommodation that permits a person with a disability to remain gainfully employed.”

  Recently EEOC officials identified pregnancy discrimination under the ADAAA as an “emerging issue” and are making enforcement of job protections for pregnant women a priority. So we decided to take a closer look at how the rules apply.

  No favorites

  Employers become vulnerable to a discrimination claim by treating pregnant workers differently than other, similarly situated employees. The Pregnancy Discrimination Act prohibits such disparate treatment.

  For example, an employer that allows an employee with a temporary back injury to take disability leave or leave without pay, or to do less strenuous work, is required under the PDA to allow the same for an employee with temporary lifting restrictions due to pregnancy.

  Likewise, the PDA prohibits an employer from requiring a pregnant worker to take leave if the same is not required of another worker with a similar condition. The law applies regardless of whether the mother-to-be has a genuine impairment — for instance if her doctor orders bed rest because of a serious pregnancy-related condition like preeclampsia (a form of high-blood pressure) — or if the employer simply believes a woman is no longer up to the job because she is pregnant.

  “I think the thing employers should do is not make judgments that aren’t informed judgments about a person’s ability to work during pregnancy,” said Christopher J. Kuczynski, an EEOC assistant legal counsel, who spoke by phone with HR Compliance Expert.

  In one recent case, a Jackson, Miss. restaurant agreed to pay a server $20,000 and provide other relieve to settle a suit in which the EEOC had charged that the worker was removed from the weekly schedule and fired because of her pregnancy.

  According to the claim, the restaurant terminated the mother-to-be without warning and without prior disciplinary action, telling her when it took her off the weekly schedule, "The baby is taking its toll on you." The server, who was four months pregnant with her first child, had not cut back on her shifts and was under no medical or working restrictions when she was fired.

  Accommodation obligation

  Employers also can run into problems by failing to accommodate an employee with a serious pregnancy-related impairment, according to Kuczynski.

  Pregnancy is not a disability. But under the ADAAA’s broadened definition of disability, some pregnancy-related conditions that would not have triggered an employer’s obligation to provide an accommodation before 2008 now do.

  The number of pregnancy-related discrimination complaints made with the EEOC is growing, despite the broadened protections. Complaints lodged with the EEOC alleging PDA violations have increased by more than 35 percent over the past 10 years. There are no statistics for pregnancy-related disability claims, but EEOC’s caseload in this area is expanding.

  In an ongoing case filed last fall, the EEOC accused a Laredo, Tex., oil and gas testing firm of illegally firing a worker who requested leave for a pregnancy-related complication. The company bolstered the discrimination charge with a letter to the Texas Workforce Commission mentioning that it hired the worker believing she was unable to conceive. When the employee became pregnant and was absent for several days, the company wrote, "thinking she would have to stay home for some time, she was replaced after five days off or more."

  The EEOC also is suing a Las Vegas government services contractor that allegedly repeatedly denied the requests of an administrative worker who wanted to work closer to the restroom because she suffered from severe nausea and vomiting arising from her high-risk pregnancy. The worker already had fallen at least twice while going down two sets of steep stairs to reach the restroom, according to the EEOC.

  In another pending case, EEOC is suing a Houston debt collection agency on behalf of an account representative who allegedly was not allowed to return to her job after she had taken less than three months of maternity leave. Although her job had been held open for her, company officials changed their mind upon learning the worker planned to express milk, according to the suit. The EEOC contends that the mother’s pregnancy and childbirth, and specifically her status as a lactating female, motivated the employer’s decision to fire her.

  Compliance challenge

  Employers can unwittingly set themselves up for a disability discrimination lawsuit in various ways, warns Michael Barnsback a partner with LeClairRyan in Alexandria, Va. who advises companies on pregnancy-related claims.

  Automatically denying additional leave to pregnant workers who run out of FMLA leave is a common pitfall, he said. “HR is focused on FMLA issues. They don’t think about the ADA.”

  A California shipping company learned this lesson the hard way earlier this year when a state appeals court reversed a lower court’s ruling in Sanchez v. Swissport, Inc., and concluded that a pregnant employee who was prescribed bed rest for her high-risk pregnancy was illegally denied an accommodation when her employer fired her after she used up all her leave.

  The Sanchez ruling is based on California law. But the decision is a reminder of the risks faced by any employer that refuses to accommodate pregnant worker with a disabling condition. The court held that Sanchez was entitled to the protections afforded any other disabled employee: a reasonable accommodation that does not impose an undue hardship on her employer.

  Employers also must recognize that, because of the ADAAA’s broadened definition of disability, an increasing number of pregnant workers may qualify for accommodations — simply because a far broader spectrum of pregnancy-related impairments may now qualify as disabilities. Among them:

  • pregnancy-related sciatica, which could limit how much a mother-to-be can lift;
  •  pregnancy-related carpal tunnel syndrome, which can cause pain and numbness in the hand, wrist and arm and limit fine motor tasks;
  • gestational diabetes, requiring a woman to modify her break schedule so she can eat every few hours to control blood sugar levels; and
  • preeclampsia, which might require bed rest.

  Congress deliberately made it difficult for employers to prove that an accommodation, including extended leave, is unreasonable or an undue burden. A savvy employer will take into account the fact that an increased number of pregnant workers may qualify for extended leave as an accommodation and take steps to guard against a staffing shortfall. Some employers line up contingent workers and cross-train staff to ensure they can maintain productivity in the event workers take extended leave for any reason.

  Timing isn’t everything

  The ADAAA stipulates that an impairment lasting fewer than six months can be substantially limiting. Still, many employers stumble when it comes to applying this rule to pregnancy-related impairments.

  “Employers are very aware that pregnancy is a protected status,” Christine Walters, a human resource and employment law consultant said. “But they are learning that that these short term conditions can be a disability.”

  A well-drafted position description can help an employer make informed decisions about whether an accommodation is reasonable and may help fend off discrimination claims, says Walters.

  Employers also should ask an employee’s doctor to review the position description to determine if a disabled employee is up to the job.

  “Let the doctor tell you if the employee is able to work,” she said. “We’re not the medical experts.”

  She also recommends that employers look at a various accommodations before assuming a worker temporarily disabled during pregnancy is unable to do her job. Technology, and the ability to work from home, has broadened the options for many people with disabilities, including pregnant women.

  “Don’t assume that just because an employee is limited to bed rest she can’t do any work at all,” she said. “Let the physician make the decision.”
• May 16, 2013

  Despite Duncan’s Assertion, Federal Appeals Courts Can Review Certain ED Decisions

  Federal appeals courts have jurisdiction to review certain U.S. Department of Education decisions, despite department claims to the contrary, the 4th U.S. Circuit Court of Appeals ruled in South Carolina Department of Education v. Duncan, No. 12–1764 (4th Cir. April 26, 2013).

  When ED denied South Carolina a hearing that the state believed it was entitled to under the Individuals with Disabilities Act, the state took the department to court. ED protested, saying that IDEA doesn’t give the court permission to get involved.

  Facts of the Case

  IDEA provides federal funds to states for the education of students with disabilities (see ¶917 of the Handbook). To receive the full amount of federal funding available, each state must contribute funds for the same purpose. Each year, states must match or exceed their contribution from the previous year (¶918).

  If a state falls short of this “maintenance-of-effort” requirement, the Secretary of Education has to reduce federal funding to the state by the amount of the shortfall. He has the option, however, to grant a waiver of the MOE condition if the shortfall was “due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the State.”

  Citing “severe and precipitous” reductions in state tax revenues, South Carolina requested a MOE waiver for about $67.4 million for fiscal year 2010. ED Secretary Arne Duncan granted the waiver in part, withholding only $36.2 million from the state’s federal allocation.

  South Carolina requested a hearing on the decision, but Duncan said that IDEA does not provide for such a hearing.

  South Carolina petitioned ED’s Office of Hearings and Appeals anyway, but it denied the request. The department explained that while IDEA provides for notice and an opportunity for a hearing “prior to … issuance of the Department’s final agency decision rejecting the eligibility of a State for IDEA grant funding,” the agency’s partial denial of South Carolina’s request was not a decision rejecting eligibility.

  Because South Carolina was not challenging the conclusion that it did not meet MOE conditions (only requesting a waiver from the conditions) and because the state was never deemed ineligible for a grant, this was not a case of an agency decision rejecting eligibility, ED said.

  South Carolina asked the 4th Circuit to review this decision and ED filed a motion to dismiss, arguing that the court did not have jurisdiction to consider the state’s petition because no eligibility question was involved.

  ED said that its waiver decision was a final agency action subject to review only in a district court under the Administrative Procedure Act, not in a court of appeals under IDEA.

  4th Circuit

  The court said it had two questions to answer: (1) whether the court has jurisdiction to consider South Carolina’s petition for review, and (2) whether South Carolina is entitled to an opportunity for a hearing on ED’s determinations.

  Jurisdiction

  Arguing that the federal courts of appeal do have jurisdiction over ED decisions, South Carolina pointed out that IDEA authorizes a state to file a petition for review in a court of appeals when the “State is dissatisfied with the Secretary’s action with respect to the eligibility of the State.” (emphasis added) (20 U.S.C. §1416(e)(8)(A))

  The question, then, said the court, is whether the MOE waiver determination was an action regarding eligibility.

  South Carolina argued that MOE is one of several eligibility requirements for federal funding and therefore, by not waiving the MOE condition, ED found South Carolina ineligible for a grant.

  ED disagreed, arguing that South Carolina was not ineligible for a grant under IDEA because, had it been ineligible, it would not have received any funding.

  The court ultimately agreed with the state’s arguments, pointing out that South Carolina requested a waiver under IDEA’s §1412, a section titled “state eligibility.” ED’s waiver determination was, therefore, a decision on whether to remove an eligibility condition.

  Because removing an eligibility condition is an “action with respect to the eligibility of the State,” the 4th Circuit determined that federal appeals courts have jurisdiction to consider states’ petitions for review.

  Waiver Review

  After finding that it had jurisdiction to review the matter, the 4th Circuit then considered whether IDEA allows South Carolina to seek a hearing to review ED’s waiver determination.

  IDEA states that “[t]he Secretary shall not make a final determination that a State is not eligible to receive a grant under this subchapter until after providing the State (A) with reasonable notice; and (B) with an opportunity for a hearing.” (emphasis added) (20 U.S.C. §1412(d)(2)) This notice and hearing opportunity must take place “[p]rior to withholding any funds under this section.” (20 U.S.C. §1416(e)(4)(A))

  Like the jurisdiction ruling, this question turned on whether ED was considering a state’s eligibility.

  The court said it was. The partial denial of the MOE waiver “not only provides us with jurisdiction … but also amounts to a ‘determination that a State is not eligible’ for funding,” the court said.

  Therefore, South Carolina is entitled to notice and an opportunity for a hearing before a final determination is made, the court concluded, citing 20 U.S.C. §1412(d)(2).

  Funding

  While South Carolina is entitled to a hearing on the merits of its waiver request, the court said it couldn’t complete the review itself. “Because we conclude that South Carolina is entitled to an opportunity for a hearing on the waiver determination, it is premature for us to address its challenge to the Secretary’s decision to deny a full waiver,” the court said.

  It did note, however, that because the decision could not be final until the state received an opportunity for a hearing, South Carolina remains eligible for its full funding until a final decision is made. This also means that ED cannot distribute the funds earmarked for South Carolina to other states until the decision is final.

  ED, however, has already made the cuts. But according to South Carolina’s department of education, schools were not affected because the state legislature made up the difference while the department pursued legal action.

  ED now must provide South Carolina with an opportunity for a hearing. But even if the funding cuts ultimately stand, the reductions only will be in place for as long as the state failed to meet its MOE requirements. The cuts would have been permanent but Congress prohibited this would-be “perpetual penalty” during appropriations earlier this year, according to the state’s department of education. See sidebar, Congress Puts an End to ED’s Permanent IDEA Penalty Controversy, for more information.

  Congress Puts an End to ED’s Permanent IDEA Penalty Controversy In allocating funding for special education earlier this year, Congress put an end to controversy about permanent funding penalties the U.S. Department of Education says it can impose on states that fail to meet “maintenance-of-effort” requirements. IDEA provides federal funds to states for the education of students with disabilities. To receive the full amount of federal funds available, each state must contribute funds for the same purpose. Each year, states must match or exceed their previous year’s contribution. If a state fails to at least match its contribution from the previous year, the department must reduce its own contribution by that much, or grant a waiver. Any cuts made would remain forever, regardless of whether the state stepped up its contribution in following years. Congress has now put an end to this permanent penalty. States that fall short of the MOE requirement once will suffer cuts only once, legislators made clear in this year’s funding legislation. Once states return to their original funding level, so will ED. Senator Tom Harkin, D-Iowa, added the provision to Congress’ 2013 continuing appropriations resolution. South Carolina Superintendent of Education Mick Zais called the move “common sense,” in a press release. The legislation “repeals the absurd perpetual penalty that withheld $36,202,909 in funds used to provide services to students with disabilities,” he said, referring to cuts his state suffered when it failed to meet MOE requirements (see Despite Duncan’s Assertion, Federal Appeals Courts Can Review Certain ED Decision, above).

More

• ADA Guidance
• Cross-Cutting ESEA Guidance
• English Learners Guidance
• ESEA Flexibility Guidance
• Grants Management Guidance
• Homeless Education Guidance
• IDEA Guidance
• Migrant/Neglected & Delinquent Youths Guidance
• School Improvement Grant Guidance
• Section 504 Guidance
• Title I Guidance
• Title I Dear Colleague Letters
• Title II Teacher Quality Guidance
• Waiver Authority Guidance

• What's New in Title I of the ESEA?

  A 15-20 minute overview of recent developments in Title I and President Obama’s “ESEA Flexibility” initiative, by two of the co-authors of the just-published 8th edition of The New Title: The Changing Landscape of Accountability. The speakers address the sweeping Title I changes introduced by ESEA Flexibility waivers as well as other new policy amendments implemented in the two years since the last edition of the book.
• Federal Reporting Requirements for Education Grants – “Cloud” Accountability Has Arrived!

  Grant recipients have seen a dramatic increase in reporting requirements as part of a push for public transparency. Reporting requirements under the American Recovery and Reinvestment Act (ARRA) and the Federal Financial Accountability and Transparency Act (FFATA) have added new layers of complexity to the numerous financial and performance reporting requirements. In this 90-minute webinar, Bonnie Little of Brustein & Manasevit will help you untangle the complexities surrounding reporting requirements for education grants. Ms. Little will identify the various sources of reporting requirements; discuss current trends in reporting, data collection and data usage; and provide attendees with practical advice on complying with reporting mandates.