Third Circuit Court Expands Potential Recovery Under IDEA

In a precedential decision issued on September 22, 2015, the Third Circuit Court of Appeals resolved what had been a matter of confusion and dispute among lower courts and administrative hearing officers. In G.L. v. Ligonier Valley School District Authority, the Appeals Court applied the most expansive possible interpretation of potential recovery under the Individuals with Disabilities Education Act (IDEA).

The source of the confusion was two seemingly conflicting provisions of the statute: one that requires IDEA claims to be filed within two years of the date on which the parents knew or should have known of a violation, and one that describes a due process complaint as asserting claims for an injury that occurred not more than two years before the reasonable discovery date.

The District argued, and the Hearing Officer agreed, that those provisions permitted relief only for injuries that occurred in the two years preceding the filing of a complaint. On appeal, the District Court held that the statute was properly interpreted to allow relief for injuries occurring up to two years prior to the reasonable discovery date, so long as a complaint was filed within the two years following reasonable discovery. In other words, under the District Court’s theory, a student might be entitled to a maximum of four years of relief, extending from two years before the discovery date until two years after discovery.
In the Court of Appeals’ analysis, it cited the broad remedial scheme of the IDEA in rejecting even the more expansive reading of the statute provided by the District Court. The Court’s precedential holding is that:

“. . . once a violation is reasonably discovered by the parent, any claim for that violation, however far back it dates, must be filed within two years of the “knew or should have known” date. If it is not, all but the most recent two years before the filing of the complaint will be time-barred; but if it is timely filed, then, upon a finding of liability, the entire period of the violation should be remedied (emphasis supplied).”

Compensatory education is now clearly available for a period equal to the term that a student is shown to have been deprived appropriate services, so long as a complaint is filed within two years of the parents’ discovery of the deprivation.

For school districts, the Court’s decision reinforces the need to have robust and effective child-find procedures in place and to ensure that staff are effectively implementing those policies. The failure to identify and service eligible students will certainly be more costly in the aftermath of G.L.


This post was written by Zachary E. Nahass. It was included in the October 2015 edition of CGA Law Firm’s School Law News.

NLRB Expands Joint Employer Status

In a ruling that has many employers and attorneys predicting that the days of using temporary employees or subcontracting work may be over – at least as we know it – the NLRB in Browning-Ferris Industries of California, Inc. expanded the joint employer standard to allow two or more otherwise unrelated employers to be considered a joint employer under the NLRA if they “share or co-determine those matters governing the essential terms and conditions of employment.” The Board lowered the standard, and instead of requiring that a joint employer exercise actual authority over employees’ terms and conditions of employment, will consider whether the entity has the right to control along with actual control.

Given that the PLRB generally adopts NLRB rulings – it is likely that if tested, the same standard will apply to Pennsylvania school districts and companies that provide contract services to them, such as bus companies, food service providers, etc. This could expose districts to unfair labor practice charges related to these third party arrangements or could allow unions attempting to organize these outside companies to draw the districts into negotiations. Essentially, the decision means that in any situation where a district contracts with a third party to obtain services provided by workers who are in any manner under the actual or even potential control of the district – the district may be a joint employer. Some of the key factors considered by the NLRB included whether the user of services has authority to dictate terms such as wages and hours, the number of workers to be supplied, scheduling, overtime, assignment of work, and the manner and method of work performance. As has always been the case, the more direct the influence and control, the more likely a joint employer relationship will result – but this decision eliminates the requirement that such power be exercised directly, immediately and not in a “limited and routine” manner.

As such, this ruling has the potential to expose districts to joint employer liability in situations where it had previously taken adequate measures to avoid such liability. If your district has existing or potential contracts with third party service providers, now would be an excellent time to review these contracts to determine what changes may be required to further minimize the risk of joint employer liability under this new framework.

This post was written by Christine Nentwig. It was included in the October 2015 edition of CGA’s School Law Newsletter.

Video Recordings in School Districts

In today’s technological society most, if not all, school districts are equipped with video cameras within and outside school buildings. Questions have risen as to who has access to view these video recordings.

Recently, two court cases have been decided which shed some light on whether or not individuals have the ability to access these video recordings. Pursuant to these two decisions, parents would be permitted to have access to these videos under the Family Educational Rights and Privacy Act (FERPA) and under the Pennsylvania Right to Know law.

In regard to the video surveillance being subject to FERPA, the Utah Court of Appeals found a video is protected under FERPA and can only be disclosed under the requirements of this law. In Bryner v. Canyon School District, 2015 UT App 131 (May 29, 2015), the defendant filed a complaint in the trial court seeking to compel the school district to produce a copy of a video surveillance recording taken by a security camera at a school. The district determined that the video constituted an education record and the disclosure requirements of  FERPA prohibited release of the record to the plaintiff without the consent of the parents of the other students shown in the video. The plaintiff filed a motion for summary judgment seeking a ruling that the video was not an education record within the meaning of FERPA.

The court denied the plaintiff’s motion,  ruling the record sought was an education record, that it contained the personally identifiably information of other students, and that the video was therefore subject to disclosure requirements of FERPA. The trial court also ruled that the district had to produce a redacted version of the video, but only if the plaintiff paid the cost of the redaction. The plaintiff challenged this ruling on appeal. The Utah Court of Appeals agreed with the trial court that the video was subject to FERPA and the plaintiff’s motion for summary judgment was thus correctly denied. Because FERPA forbids release of the unredacted video, the court also agreed that the district may produce only a redacted copy and the plaintiff should bear the cost of that redaction. The Court went on to state in its analysis that due to the fact that the Family Policy Compliance Office of the United States Department of Education (which implements and oversees compliance with FERPA) determined that images of students involved in an incident caught on video do constitute education records of those students. Therefore, the video is nothing more than a record of the actions of the students involved in the video and therefore the students’ images in the video constitute information identifying the students. Accordingly, the video contained information “directly related to the students involved in the incident.”  Since it was determined by the court that the video constituted information identifying the student, the protections were afforded under FERPA for disclosure.

School districts need to realize that parents do have the right to view videos of their children when the child is involved in an incident captured on video. However, under the ruling out of Utah, districts will also need to understand that, should  a request from a parent and/or an outsider for release of information on a video surveillance is filed, the district may have to supply the video with redacted images for use. Without the redaction of certain parts of the video surveillance, which would identify other students, then the restrictions on disclosure under FERPA should be followed and parental permission is required in order to release the video in its entirety.

Recently, the Commonwealth Court of Pennsylvania decided in Pennsylvania State Police (PSP) v. Grove, No. 1146 C.D. 2014 – July 7, 2015, that a request by an individual for a video from the PSP should be provided. The Court concluded that such recordings of a police stop are not exempt from disclosure. The Court affirmed that the Office of Open Records Order requiring the PSP to provide a copy of the video recording, which contains no audio component, should be provided and that redaction of exempt information from the audio component of that recording should also be provided. This same interpretation can be used in the video surveillance for school districts.

The reason that this case is important is that a school district, like the Pennsylvania State Police, is a public agency. If you have a video recording of an incident, it may be subject to the Right To Know law, however school districts will need to evaluate the specific video and determine if redaction of that video is allowed to be released pursuant to the exemptions under the law. School districts can no longer flat out deny a request for a copy of a video recording. Districts will need to carefully evaluate the specific recording and determine if there is any need for redaction based on the protections under the law.

To summarize these cases, video recording of incidents occurring within school districts may be subject to disclosure and/or protections under the law. If the video recording is an incident involving a student, the district will need to determine if, pursuant to FERPA, permission is going to be needed to release the video and/or if the video can be released with proper redactions. Furthermore, a Right To Know Request for a video recording must be evaluated by the Right To Officer of the school district and the Right To Know Officer must determine if redaction is necessary under the exemptions afforded under the law. It is advised that if any school district receives a request for a copy of a video recording that the school district contact its solicitor.


This post was written by Benjamin L. Pratt, chair of CGA Law Firm’s School Law Practice Group. It was included in the October 2015 edition of CGA’s School Law Newsletter.