As U.S. Attorney’s Panel Gears Up, School Lawyers Brace for Discrimination Claims

To read the original article at the Connecticut Law Tribune, please click here.

Jay Stapleton, The Connecticut Law Tribune

March 10, 2015

A new “working group” created to investigate complaints involving discrimination in schools, camps and day care centers has started spreading the word about the problem. And lawyers who represent such institutions are waiting for the next shoe to drop.

The Educational Civil Rights Working Group was formed by Connecticut U.S. Attorney Deirdre Daly after a series of high-profile discrimination settlements in recent months. The group is comprised of members of several organizations, including the Connecticut Department of Education, Commission on Human Rights and Opportunities, and African-American Affairs Commission. The 13-member group has already met twice, said member Cheryl Sharp, a civil rights lawyer and deputy director of the CHRO.

“We have a meeting scheduled at the University of Connecticut School of Law,” said Sharp. “We’re working with a student group to put together a series of public service announcements.”

While the public awareness aspect of the work group is clear enough, many lawyers who represent school boards and colleges said they are wondering whether the group will be given “teeth” to bring discrimination cases. A press release issued about the working group said it will develop “a strategic action plan to address civil rights violations through outreach as well as law enforcement actions.”

The promise of “action” was not lost on attorneys.

“It demonstrates that the U.S. Attorney’s Office and related federal agencies will pay increased attention to educational institutions’ compliance with laws related to their employees and students in 2015,” Peter Murphy, a Shipman & Goodwin associate whose practice includes advising school boards on employment and discrimination matters wrote in a recent column in the Connecticut Law Tribune.

William Connon, chairman of the school law practice section at Pullman & Comley, said his understanding is that education and enforcement are both part of the group’s action mission. “Until we see the actual plan, we can only speculate to what degree it will emphasize the enforcement aspect, but more complaints and lawsuits would appear to be a likely outcome,” he said.

Daly was out of the country last week and unavailable to comment on the new task force and how it will function. But one thing is clear: her office considers discrimination in schools to be a problem worth special attention. In a previously released statement, Daly said the new group was being formed “in response to an increase in the number of complaints about bullying, sexual harassment and racial segregation.” Her office, she said, “was hearing from more parents and caregivers regarding school discrimination, especially involving violations of the Americans with Disabilities Act.”

Many of the claims against educational institutions and camps concern the Americans with Disabilities Act, which, among other things, guarantees access to public accommodations such as schools and camps. Thomas Carson, a spokesman for the U.S. Attorney’s Office, offered three recent examples of those sorts of cases.

Earlier this year, Quinnipiac University agreed to settle allegations it violated the ADA when it removed a student who was suffering from depression from school and refused to refund her tuition. The settlement called for the private school in Hamden to give the student about $32,000 to pay off her college loan and for her pain and suffering. The university also agreed to implement a new policy barring discrimination against applicants or students based on mental health disabilities.

A second case involved a complaint lodged against The Learning Clinic, a private school in Brooklyn, Connecticut. The school agreed to pay $35,000 as compensation to a family for denying a child with a service animal access to the school. As part of the settlement, it agreed to train its employees and adopt new policies to ensure compliance with the provisions of the ADA.

The third case dates to 2012, when the town of Rocky Hill faced allegations that its parks department refused to accommodate a child in its Summerscape summer camp program. According to court records, the child was told she could not participate because she had juvenile diabetes and used an insulin pump. Under the settlement agreement, Rocky Hill agreed to implement policies to ensure that children with disabilities can participate in the camp program.

Another recent case involved a lawsuit filed in October against Milford Public Schools over the decision to bar a third-grader from Meadow­side Elementary over fears she had contracted Ebola during a trip to Africa with her father. The girl’s father and lawyer claimed she was being discriminated against because of a perceived disability. The lawsuit was quickly settled, with the girl being allowed to return to school.

Before the settlement was reached, several legal observers opined that school officials had crossed the line. After all, the girl displayed none of the symptoms of the fatal illness, which include fever, headaches, muscle spasm, vomiting or spontaneous, unexplained bleeding.

Although state and federal laws that prohibit schools from discriminating against students with disabilities have been in existence for more than three decades, it’s only recently that there’s been substantial litigation, said the CHRO’s Sharp.

She cited two basic reasons for the increase in complaints and subsequent litigation. One is an increase in the number of students with disabilities who are attending colleges and universities. The second reason, she said, is a steady expansion of the types of disabilities protected by the ADA and other anti-discrimination laws.

Sharp hopes the task force will go beyond ADA issues. “The most dire civil rights issue in schools from the CHRO’s perspective would be discriminatory bullying in schools and the schools’ failure to adequately address the discrimination,” Sharp said.

Media attention has also helped lead to more awareness about discrimination, and as a result, more complaints, according to Nina Pirotti, a New Haven lawyer who worked with renowned civil rights lawyer Gloria Allred to obtain a nearly $1.3 million settlement with the University of Connecticut last year over its allegedly poor response to sexual assaults on campus. The students had made a gender discrimination claim. “I’m not part of the task force, but it sounds like a great thing,” Pirotti said. “I like the idea of getting the problem on peoples’ radar.”

She said expanding training for “everyone in education” is one way to reduce the spread of discrimination that begins with “bullying in school and spills over into the workplace.”

“I think this task force is going to be a very important step toward raising awareness,” she said.

The expansion of ADA protections in educational settings have not been popular with everyone. Even though state laws allow schools and other targets of ADA complaints to recover damages when discrimination claims are unfounded, some say schools now face unfair burdens.

For instance, a Massachusetts lawsuit brought by the U.S. Department of Justice against Lesley University resulted in a determination by a judge that food allergies are recognized disabilities under the ADA. As a result of a settlement reached last year, Lesley—and other institutions that want to stay in line with the ADA—must develop individualized meal plans for students with food allergies; allow them to preorder meals; and provide a dedicated space in their dining halls to store and prepare foods to avoid cross-contamination.

As for the new working group, some attorneys that represent schools and colleges say that Daly’s decision to form a new working group is akin to “piling on.” Michael McKeon, a Pullman & Comley partner, said the U.S. Department of Education’s Office for Civil Rights, the Connecticut Department of Education and Connecticut’s CHRO already monitor discrimination issues in educational institutions. “I would challenge anyone to identify any public or private entity that is subject to more regulation and oversight by federal and state agencies than Connecticut’s public schools,” McKeon said.

His fellow lawyers at Pullman & Comley, Mark Sommaruga and Jonathan Orleans, have already begun advising clients on possible impacts the working group might have. In their Education Law Notes blog, Sommaruga and Orleans warned clients that the group is comprised of many representatives from public agencies that investigate discrimination complaints.

With the new group out there, they are advising that “every school, school district, college, or university to comprehensively examine and evaluate its educational and employment policies and to minimize risk from discrimination claims.”