Articles Posted in Education Law


A national movement that aims to legislate how doctors, young athletes and coaches deal with concussion injuries is gaining momentum. At this year’s Super Bowl, taking place in Miami, Florida, Governor Charlie Crist will be announcing plans for a national initiative that would encourage all fifty states to adopt concussion legislation modeled after the Zackery Lystedt Law in Washington State. In 2006, Lystedt suffered a debilitating brain injury at the age of thirteen as a result of being allowed to return to the field too quickly after suffering a sports-related concussion.

The Washington law requires that athletes, parents and coaches receive education about the dangers of concussions, that children be removed from the game if they are suspected of having a concussion, and that children must be cleared by a medical doctor before returning to the sport. Oregon, California and Pennsylvania have adopted similar laws.

While no such law has been introduced in the Florida legislature, Crist’s planned comments at the Super Bowl would indicate that one may be soon. Currently the Florida High School Athletic Association advises trainers to follow the guidelines set forth in the sports medicine handbook of the National Federation of State High School Associations. Find out more about the proposed nationwide effort to protect youth athletes from brain injuries at Congressional forum to tackle concussion issue in NCAA, high schools.

SpecialNeeds.jpgWhen a Florida child enters the foster care system, he or she is supposed to be cared for or supervised by a large group of people including foster parents, case workers, and psychologists. Since foster children are already at risk of falling behind in school due to the stress in their home life, an undiagnosed or untreated learning disability can be disastrous for their chances of achieving success later in life.

In Florida and other states, judges have the right to appoint a surrogate parent to advocate for the educational needs of children in the foster care system who are suspected of having learning disabilities. These advocates can request testing and fight for extra help for these children in school. The main problem with the program so far is that there aren’t enough surrogates in the program to support all of the children who need help.

Surrogate parents are volunteers. Northeast Florida has been especially active in recruiting and training surrogates for Jacksonville, Florida area children. You can read more details of the surrogate parent program in northeast Florida at Surrogate parents fill needs of special-needs Jacksonville children.

Fingerprint.jpgAccording to the United States Bureau of Labor Statistics, nearly 62 million people volunteer at least one day a year. Those volunteering to work with the elderly, children or the disabled persons are likely to be screened for “red flags” in their criminal history, such as convictions for drugs, violent crimes, sex crimes and child abuse. The ability to use national criminal history checks to screen out volunteers with certain types of criminal records has been made possible by the National Child Protection Act, signed into law by President Bill Clinton in 1993.

In Florida, a state law requires schools to check volunteers against the sexual predator and offender database. A proposed law would also require youth sports organizations to check the backgrounds of coaches and referees. Some Florida volunteers who have been turned away from positions have hired a lawyer and plan to argue that the background checks violate their rights to privacy.

Checking someone’s background only costs few dollars. That seems like a small price to pay to be able to ensure parents and caregivers that their loved-ones will not be in the care of a person with a known or reported criminal history.

education%20school%20day%20care%20black%20chalkboard%20with%20letters%20capital%20and%20small%20letters.jpgAt Morningside Elementary School in Port St. Lucie, Florkda, a teacher (Wendy Portillo) was fed up with disciplinary issues she had been having with 5-year-old Alex Barton, decided to let the other children in her class vote to decide if the child should be thrown out of class. Alex, who is in the process of being diagnosed with Asperger’s Syndrome, was made to go to the front of the class and listen while each of his classmates was invited to say what they did not like about the boy. Alex lost the vote at 14-2 and was sent to the nurse’s office for the rest of the day.

The child’s mother, Melissa Barton, has filed a complaint, but the state attorney’s office has said that the incident did not meet the criteria for emotional child abuse, so no criminal charges will be filed. The Port St. Lucie, Florida Police have documented the claim but are no longer investigating it. Ms. Barton is considering legal action.

Asperger’s syndrome is a type of high-functioning autism. Children with Asperger’s often exhibit anti-social or disruptive behavior. Because of his disability, Alex has had disciplinary issues. Since the incident, Alex has refused to return to school.


Judge Harvey Schlesinger criticized school officials for teaching third grade students a religious song. Of course, there is a debate whether the son “Chatter with the Angels” is a religious song in violation of the U.S. Constitution. The song was previously approved by the Florida Department of Education; however, approval by one government entity does not mean that the teaching the song is constitutional. Judge Schlesinger stated that he is relying on the promise made by the school board that the song would not be taught for the rest of the year. Judge Schlesinger ordered that the school board post his rulings on the district website and / or make the orders available to staff members / employees.

On this and other issues, I would encourage school officials, parents, and teachers to review the policies and procedures for their respective school boards. There is wealth of information online for most every school district in the State of Florida.

You can read more about this story at Judge Raps St. Johns County Officials Over Angel Song.


A lawsuit was filed by the American Civil Liberties Union (ACLU) against the Nassau County Public School District. The district refused to allow students from Yulee Middle School to form a Gay – Straight Alliance on campus. The School Board amended the rules in 2008 to require groups to have a charter, constitution, and parental permission.

The lawsuit seeks to force the school district to allow the Gay – Straight Alliance on campus on school grounds. This case is not about whether a person supports or is against groups with gay students or a gay focus. It is about what the school district can allow and disallow on school grounds. It will be interesting to see how the judge / jury decides the issues in this case. You can read more about this story at ACLU Sues Nassau School District Over Banning of Group from School Grounds.


A Federal Judge ordered San Rosa County, Florida Schools to stop promoting religion in the public school system. A lawsuit was filed by the American Civil Liberties Union against the school district in August. The lawsuit claimed that school official were proselytizing and conducting other religious activities in the school system. Public schools in the State of Florida and its employees are prohibited from promoting religion in the public school. The Santa Rosa School District admitted to the allegations and offered to correct the unconstitutional practices that took place within the school system. You can read more about this story at Federal Judge Orders Schools in Santa Rosa County, Florida To Stop Promoting Religion.


Phyllis Musumeci is the founder of Florida Families Against Restraint and Seclusion and the National Families Against Restraint and Seclusion. Phyliss is also a mom on a mission to end restraints on special education / special need students. Unfortunately, many special education law students including those with autism, ADHD, cerebral palsy, and other disabilities, are unduly restrained in public and private schools in Florida and the rest of the United States. Phyliss was asked to speak by the National Disability Rights Network in Washington, D.C. A new report on the issue of restraints and seclusion of special education students show widespread use in public schools throughout the nation. Some child rights and education rights advocates believe that the restraints amount to abuse and neglect of these students. Furthermore, the use of these restraints often times causes serious personal injuries and the wrongful death of special education students.

Under Florida law, school officials can restrain a special education student who is deemed to be a danger to themselves or others in the school environment. Muscumeci and others believe that Florida law is too vague and that children are often restrained when there is no danger at all to themselves or others. In public schools, some students are restrained for convenience of the teacher or staff rather than for the safety and welfare of the student. You can read more about Phyliss Muscumeci’s efforts and the problems of restraints of special education students at Child Advocacy Groups and Mom Seek to End Restraints of Special Education Students in Florida and Other States.


Special needs students in public schools have every right to be educated and supervised based on these special needs. Close and consistent supervision are key ingredients to the safety and welfare of these students. A tragic sexual assault took place at the Kanapaha Middle School in Gainesville, Florida. While a teacher stepped out of the classroom leaving no other teachers or school staff in place for supervision, a 14 year old special needs child was raped. In fact, one boy raped the girl while another held her down. These criminal acts took place while in the Alachua County School System during the school day during day light hours. Certainly, this reprehensible act of violence and abuse of the 14 year old girl would never have happened with a teacher or other adult the classroom. The Alachua County School District is liable for the actions and inactions of its teachers. While the teacher did not want this event to happen, the teacher negligently created an unsupervised environment that the incident did happen. Under Florida Statutes, the Alachua County School Board can be placed on formal notice for negligence and related damages and personal injuries. Then after the expiration of the formal notice period, the Alachua County School Board can be sued.

It is unfortunate that the school, school board, and teacher learned a lesson out of this tragedy. That lesson is that 10 minutes of missing or neglectful supervision can leave to a traumatic event that a 14 year old girl will need to live with for the rest of her life.

You can read more about this story at Alachua County (Gainesville) Florida Special Needs Child Raped in Classroom by Another Student.

854122_back_to_school_1.jpgDo Florida children with ADHD (Attention Deficit Hyperactivity Disorder) qualify for Special Education under IDEA (Individuals with Disabilities Education Act)? Like many legal questions that I face as a child rights attorney every day, the answer is “it depends”. ADHD is not particularly listed as one of the conditions that could qualify a child / student for Special Education under IDEA. These conditions include the following:


Hearing impairment (which includes deaf children)