Children and the Law

2016

Juvenile Law & Education Legislative Update

21st Annual Robert E. Shepherd

Juvenile Law and Education Conference

May 13, 2016

S

Federal Education Legislation

Every Student Succeeds Act

(ESSA)

S On December 10, 2015,

President Obama signed the

Every Student Succeeds Act

(ESSA) previously known as

the No Child Left Behind

(NCLB) Act and the

Elementary and Secondary

Education Act (ESEA)

Every Student Succeeds Act

(ESSA)

• The ESSA leaves progress requirements up to the states.

• States must create a school rating system that includes multiple

factors:

• Standardized testing scores for all students and subgroups,

• High school graduation rates,

• Progress for English Language Learners toward English

proficiency,

• Another valid indicator of school quality (i.e. school climate,

safety, college readiness.).

Source: Leadership Conference Education Fund

Every Student Succeeds Act

(ESSA)

• Divisions must set aside federal dollars for parent engagement and

must have written engagement policies.

• There is funding for divisions under Section 4108 of the Act to

implement evidence-based practices to prevention the overuse of

exclusionary discipline.

• Full implementation of the ESSA begins in the 2017-2018 school

year.

Source: Leadership Conference Education Fund

S

State Education Legislation

S

School Climate

HB 1213

Allows students by way of their defense counsel to introduce IEPs, 504 Plans, Behavior Intervention Plans (BIPs), and Functional Behavioral Assessments (FBAs) as evidence of lack of intent or willfulness if:

(1) the case is in juvenile court,

(2) the offense is a misdemeanor,

(3) 10 days notice is provided to the Commonwealth’s attorney,

(4) copies are authenticated,

(5) Alleged offense occurred during school hours or on school property.

HB 487

Eliminates requirement (Va. Code Section 9.1-110) that school

resource officers whose positions are funded by state grants

“enforce school board rules and codes of conduct.”

Notable Failed Legislation

S HB 1132- Eliminates requirement that school principals report

numerous misdemeanors and non-crimes to law enforcement

from school. Died in House Courts.

S HB 1134- Eliminates disorderly conduct as a possible

delinquency criminal charge for students under 14? If the

conduct occurred on school property or a school bus or school-

sponsored activities. Died on the House Floor.

S SB 458- Prohibits out of school suspension unless all feasible

alternatives to suspension have been considered. Defeated in the

House.

Vetoed Legislation

HB 1234

Authorizes school security officers to carry firearms in performance

of duties if s/he:

(1) Is retired law-enforcement officer

(2) Annually participates in same firearms training and testing, and

meets training and qualification standards to carry firearms, as is

required of an active law-enforcement officer; and

(3) Is granted permission by a local school board

S

Curriculum & Instruction

HB 36

Each high school government course

must include program of instruction

on all concepts and information

contained in civics portion of U.S.

Nationalization Test.

HB 357

Requires at least 20 minutes of

physical activity per day or an

average of 100 minutes per week

during regular school year for

students in grades K-5. Starts in

2018-2019.

HB 659

Requires high school family life education

curriculums to incorporate age-appropriate

elements of effective and evidence-based

programs on prevention of dating violence,

domestic abuse, sexual harassment, and

sexual violence.

HB 831

Requires Standards of Learning (SOLs)

established by the Virginia Board of

Education and the program of instruction

for grades K-12 developed and

implemented by each local school board to

include computer science and

computational thinking, including

computer coding.

S

SOL Tests

Testing

HB 241/SB 538

Requires the Virginia Board of Education

to consider assessments aligned to the

SOLs that are structured and formatted in

a way that measures content knowledge of

students who are English language learners

and that may be administrated to such

students as an alternative to SOL end-of-

course English reading assessments.

HB 381

Requires the Virginia Board of Education

to prescribe alternative methods of

assessment for children with disabilities

who meet criteria established by the Board

to demonstrate achievement on the SOLs.

HB 436

Requires the Virginia Department of

Education to award recovery credit to any

student in grades 3-8 who fails an SOL

assessment in reading or mathematics,

receives remediation, and subsequently

retakes and passes such assessment.

SB 427

Prohibits Virginia Board of Education from

including in its calculation of the passage rate of

a SOL assessment for purposes of state

accountability any student whose parent has

decided to not have his child take such SOL

assessment, unless such exclusion would result in

the school's not meeting any required state or

federal participation rate.

S

Graduation Requirements

HB 895/ SB 336

Removes existing provisions related to

standard and advanced studies diplomas and

standard and verified units of credit. Requires

Virginia Board of Education, in establishing

high school graduation requirements, to

develop and implement, in consultation with

stakeholders, a Profile of a Virginia

Graduate.

S

“School choice”

SB 734

Makes several changes to provisions for establishment and operation of public charter schools, including:

S Applicability of various laws, regulations, policies, and procedures to public charter schools,

S Contents of charter applications,

S Procedure for executing charter contracts and the contents of such contracts

Vetoed Legislation

HB 518

Requires the Virginia Board of Education, starting

in 2017-18, to select 12 schools identified for

comprehensive support and improvement and

require such schools to provide all enrolled students

with option to transfer to another public school in

the division in accordance with relevant federal law

and subject to certain conditions and limitations

established by the relevant local school board

S

Other Notable Bills

HB 1377

Provides that any time the number of students in a class exceeds statutorily prescribed class size limits, the local school division must notify parents of each student in such class of such fact no later than 10 days after date on which class exceeded limits.

Vetoed Legislation

HB 516

Requires VBOE to establish policy to require each K-12 public school to:

S Notify parent of any student whose teacher reasonably expects to provide instructional material that includes sexually explicit content, as defined by VBOE

S Permit parent of any student to review instructional material that includes sexually explicit content upon request

S Provide, as alternative to instructional material and related academic activities that include sexually explicit content, non-explicit instructional material and related academic activities to any student whose parent so requests

SB 368

Authorizes Virginia Board of Education to review once every two years or once every three years the accreditation status of any school that is not on a triennial review cycle as a result of three consecutive years of full accreditation, provided that any school that receives a multiyear accreditation status other than full accreditation to be covered by a Board-approved multiyear corrective action plan for the duration of the period of accreditation

S

Juvenile Justice-

Related Legislation

HB 541

Allows the disclosure of law-enforcement records

concerning a juvenile who is referred to a court

services unit-authorized diversion program. The

bill prohibits further disclosure of such records by

the diversion program or participants in the

program. Law-enforcement officers may prohibit

disclosure to protect a criminal investigation or

intelligence information.

HB 784

Provides that an individual who was adjudicated delinquent

when 14 years of age or older of a delinquent act that would be

a felony if committed by an adult and has completed a term of

enlistment of no less than two years in the Armed Forces of

the United States and, if such person has been discharged from

the Armed Forces of the United States, received an honorable

discharge is not disqualified from obtaining a concealed

handgun permit and may possess or transport any firearm or

ammunition for a firearm, any stun weapon, or any explosive

material.

HB 1149

Provides that any costs paid by a person who petitions for the

expungement of police and court records related to a crime of

which the person was acquitted or the charge of which was

otherwise dismissed shall be refunded to such person if the

petition is granted.

SB 454

Specifies procedures to be used for adults under the age of 21 who are subject to the retained jurisdiction of the juvenile court for criminal offenses committed as juveniles.

The bill requires that a proceeding against such person be commenced by petition and that parents not be notified or involved.

The bill specifies dispositional alternatives and a maximum jail sentence. The bill increases the maximum jail sentence to 12 months for each offense, not to exceed a total of 36 months. Under current law, the maximum jail sentence is 12 months for a single offense or multiple offenses. The bill also states that such persons are entitled to good conduct credit. As introduced, this bill was a recommendation of the Virginia Criminal Justice Conference.

Juvenile Justice Budget Items

Re-investment – Item 415

The Department shall reallocate any savings from the reduced cost of operating

state juvenile correctional centers to support the goals of the transformation plan

including, but not limited to: (a) increasing the number of male and female local

placement options, and post-dispositional treatment programs and services; (b)

ensuring that appropriate placements and treatment programs are available across

all regions of the Commonwealth; and (c) providing appropriate levels of

educational, career readiness, rehabilitative, and mental health services for these

juveniles in state, regional, or local programs and facilities, including but not

limited to, community placement programs, independent living programs, and

group homes.

Juvenile Justice Budget Items

“There is hereby established a task force on juvenile

correctional centers comprised of the Secretary of Public

Safety and Homeland Security, and the Directors of the

Departments of Juvenile Justice, Corrections, and

Behavioral Health and Developmental Services, and the

Office of Children's Services, or their designees.”

Juvenile Justice Budget Items

“The task force shall consider the future capital and

operational requirements for Virginia's juvenile correctional

centers, including the construction of a new facility in the

City of Chesapeake, for which planning was authorized by

the 2016 General Assembly…”

Bond bill provides for funding for a new Chesapeake

Juvenile Correctional Center.

S

Child Welfare

SB 776

Allows child receiving kinship care from adult relative to enroll in school division where kinship care provider resides.

Allows local school divisions to require one or both legal parents and kinship care provider to sign affidavits detailing kinship care arrangement, as well as a power of attorney, authorizing adult relative to make educational decisions regarding child.

HB 600

Imposes certain mandates related to the protection and

encouragement of children, including a requirement that certain

information and options be given to a child in connection with foster

care plans, the imposition of certain age-appropriate restrictions, and

requirements of both the courts and the Department of Social

Services regarding foster care plans. The bill adds to the definition of

abused or neglected child any child who has been identified as a

victim of sex trafficking or severe forms of trafficking as defined by

the federal law.

SB 417

Allows designated non-attorney employees of a local department of

social services to (i) initiate a case on behalf of the local department

by appearing before an intake officer and (ii) complete, sign, and file

with the clerk of the juvenile and domestic relations district court, on

forms approved by the Supreme Court of Virginia, petitions for foster

care review, petitions for permanency planning hearings, petitions to

establish paternity, motions to establish or modify support, motions

to amend or review an order, and motions for a rule to show cause.

The bill also directs directors of local departments of social services

to designate non-attorney employees who are authorized to perform

such tasks. This bill is identical to HB 1207.

Fostering Futures Budget

Amendment

Provides for extended foster care services for youth ages

18-21 who were in foster care upon turning 18 or

immediately prior to commitment to DJJ and

transitioning from such commitment.

Also requires DSS to set out requirements for the

program, provide a format of an agreement that would

be signed by the local DSS and the youth, and guidance

setting out the requirements for local implementation

including 6 month review of each case and reasons for

termination of participation by a youth.

S

Recent Case Law

RMB v. Bedford County School

Board (W.D. Va. Case) (July 2015)

S 11 year old student long-term suspended for a crumpled leaf believed to be marijuana, but was found not to be when tested.

S RMB alleged that the defendants were in violation of the due process clause of the 14th amendment. The judge denied the defendants motion to dismiss.

S Court found RMB has a due process right to exculpatory evidence, “at least where such evidence is already within the school’s control.”

“[W]here exculpatory evidence exists and is not disclosed, the likelihood that administrators will impose unwarranted suspensions increases dramatically… Moreover, the value of requiring school officials to disclose such evidence is substantial: it brings transparency to the decision-making process and provides the student with a meaningful opportunity to meet the charges against him.”

O.S. v. Fairfax City School Board (Fourth Circuit Court Decision) (Oct. 2015)

S Fourth Circuit reaffirmed Board of Ed. of Hendrick Hudson

Central School Dist. Westchester Cty. v. Rowley standard that a

school division provides FAPE as long as the child receives

“some educational benefit, meaning a benefit that is more

than minimal or trivial, from special instruction and services”

G.G. v. Gloucester County

School Board(Fourth Circuit Case) (April 2016)

The Fourth Circuit reversed the district court and held that the

Department of Education’s interpretation of its own regulation

related “to restroom access by transgender individuals is entitled to

Auer deference and is to be accorded controlling weight…” The

Court reversed the district court’s dismissal of Grimm’s Title IX

claim.

On May 3rd there was a petition for a rehearing En Banc of this case

by the Gloucester County School Board.

Jeree Thomas, Esq.

JustChildren Program

Legal Aid Justice Center

123 East Broad Street

Richmond, VA 23219

jeree@justice4all.org

48