NEW HANOVER COUNTY — The New Hanover County School district has revised two policies that drew criticism last year.
In October of last year, Port City Daily reported on complaints alleging that the New Hanover County School district (NHCS) followed a service-animal policy that violated the U.S. American With Disabilities Act (ADA), and that the school may have retaliated against a family who complained after the school denied a student’s service dog access to a school.
The same month, Port City Daily reported on the district’s internal investigation into allegations that a female teacher had inappropriately touched a female student. In addition to concerns about the teacher’s behavior, the student’s family was also upset that the daughter had been asked to sign a ‘stay away’ contract with the teacher — without a parent present. At the time, Superintendent Tim Markley said the district would review the practice.
Revised service animal policy
At the heart of the complaint about NHCS’s service animal policy, put in place in 2012, was that it contained several provisions that appeared to directly contradict federal law. These provisions including requiring advanced prior approval from the school, letters from health care providers, and specific information about how the animal would help the student — all of which, when put into practice, appeared to violate ADA regulations.
About a month after the complaint was made public, NHCS modified its policy and procedures, making them effective November 5, 2019.
In particular, two sections of the old policy that contradicted ADA regulations have been removed:
Students must have prior approval before bringing a service animal onto school property. The student’s parent or guardian must submit a request for the use of a service animal to the principal of the student’s school of attendance on the form provided. Such [a] request must identify and describe the need for the service animal in the school setting. The student’s parent/legal guardian must describe the manner in which the service animal will meet the student’s particular need(s). Individuals requesting the use of a service animal may be required to provide a letter from a physician or other health care provider regarding the need for a service animal.
Whenever possible, requests for the use of service animals on NHCS property must be made at least three (3) weeks prior to the proposed use of the service animal. Service animals will not be permitted in the school setting without prior approval. The criteria for reviewing requests for service animals and guidelines for the use of service animals at school are available at each school and on the district’s website.
The new policy hews much more closely to the ADA, removing the aspects that seemed to glaringly contradicted federal law — including that “[s]tudents must have prior approval before bringing a service animal onto school property” — and replacing them with protocol for accommodating the rights of other students, staff, teachers, or visitors with a “Service animal access plan.”
In complaints to both the Board of Education and the U.S. Department of Education Office of Civil Rights (OCR), there were also allegations of retaliation; the family claims that the student was moved out of her classroom into a detrimental environment following the complaint. Both NHCS policy and federal law prohibit this kind of retaliation and NHCS has denied taking any retaliatory action. The OCR case for both denial of service and retaliation was still open, as of late December.
‘Stay away’ contract
In the fall of 2019, both NHCS officials and the New Hanover County Sheriff’s Office investigated a Trask middle school special education teacher; school officials, including the district’s new Title IX coordinator, confirmed that the teacher had a “pattern of touching students’ on the head, shoulder, and stomach. While the district acknowledged it was reasonable for one particular student to feel this contact was sexually motivated — and to be made uncomfortable by it — school officials and law enforcement ultimately decided it did not meet the standards to be considered sexual harassment.
The family of the student objected to this finding, as well as to the middle school’s use of a ‘stay away’ contract; the contract is frequently used to mitigate fights between students, but in this case it was used between a student and the teacher accused of inappropriate behavior.
According to a NHCS spokesperson, “the District concluded that the form used in the Trask incident had not been approved at the District level but had been used in good faith by the School staff involved. All Schools have since been directed to use only the approved stay away directive in the future.”
There have also been broader complaints about the use of student forms or agreements that appear to be binding contracts, signed by students (who are minors) without parent or guardian representation. In response to previous questions, Markley had said no district form was intended to be interpreted as a binding contract.
In an email to at least one concerned party, a NHCS spokesperson issued the following response on behalf of the district:
New Hanover County Schools has discontinued the use of any stay away form/contract/agreement that students are required to sign which could be interpreted as a binding contract. Instead, in appropriate situations, students are asked to sign Stay Away Directives, which will instruct them to stay away from another person for safety reasons as the result of an allegation of misconduct involving the student. The document used is not a legally binding contract and the purpose of asking the student to sign is only to document that the student received and is aware of it.
[Editor’s note: The district has not yet confirmed when the other forms were discontinued. This article will be updated with info when it becomes available.]
The district confirmed to Port City Daily that there is only one form currently being used to separate students. However, while the district noted that parents or guardians are “often informed” before the forms are used, an adult representative is not required to be present when students sign the form. According to the district:
The only “stay away” form approved for use in the District is a Stay Away Directive, which is not a legal contract. Students are asked to sign only to document they received and are aware of the directive. Parents/Guardians are often informed before students are asked to sign the directive but they are not required to be present.
Below: The original 2012-2019 NHCS service animal policy and the revised version.
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