The Bernice Bicep Case Jennifer L. Marks and Carol McMillan

Overview Bernice Bicep is a probationary middle school special education teacher who also teaches a social studies class in the regular curriculum. Ms. Bicep was informed by the district special education supervisor that three special education students from the resource room program would be attending her regular education social studies class. Ms. Bicep warned the students that appropriate behavior was necessary to remain in the social studies class. After repeated warnings to the principal and several verbal warnings to the students to correct inappropriate behavior, the students were subsequently returned to the resource room. Ms. Bicep refused to reinstate the students. A written reprimand was placed in her file and she was informed that she would not be rehired.

Initial Claim The plaintiff filed a grievance and a complaint to the office of Civil Rights. Bicep alleged that she was never given a hearing for non- renewal of her contract, which violated her constitutional rights by depriving her of her liberty and property interest without due process of the law.

Legal Process Legal path of a grievance: The plaintiff filed a grievance with the principal within 30 days receiving her written reprimand. The principal schedules a conference within five days with a view to arrive at a mutually satisfactorily resolution. Ms. Bicep or a union representative may present the grievance. The union rep may be given the opportunity to state the views of the union. Within five school days after receiving the complaint or within five school days after the conference whichever is earlier the principal will communicate his/her decision orally or in writing to any union representative who participated in the process. If the grievance is unresolved a mediator shall be assigned within three school days to assist the parties in resolving the complaint. If the dispute is not resolved within three school days following the assignment of the mediator the grievance may be appealed to the next step. If the grievance is not resolved at Step 1, the aggrieved employee or the Union may appeal by forwarding the grievance in writing to the appropriate Cluster Leader within five school days after he or she has received the Step 1 decision.

Legal Process (continued) The Cluster Leader will conduct a grievance hearing with the aggrieved employee and his or her Union representative, each of whom shall be given at least two school days’ notice of the hearing. The aggrieved employee shall be given the opportunity to be present at the hearing. The Principal or applicable administrator may also be present at this hearing to state his or her views. For grievances filed at Step 2, a mediator shall be used if requested by both parties.

Legal Process (continued) The Cluster leader shall issue a written decision on the grievance as soon as possible, but no later than ten school days after hearing, whichever is earlier. A copy will be sent to the aggrieved employee and the Union. A decision at Step 2 may be appealed in writing by the employee or the Union to the Superintendent of Schools within ten school days after the decision by the appropriate administrator at Step 2 has been received. The Superintendent or a designated representative shall meet with the aggrieved employee and the Union representative will receive at least two school days’ notice of the meeting and shall be given an opportunity to be heard. Superintendent or designated representative communicates written decision with supporting reasons to the aggrieved employee no later than 10 school days after receipt of the appeal or five days after conference, whichever is earlier.

Legal Path of Civil Rights Complaints The plaintiff filed a complaint with the Office of Civil Rights (Massachusetts Commission Against Discrimination). The Office of Civil Rights sends the complaint to the school. The school admits to or denies the allegations contained in the complaint and sets forth the defendants’ views about why the plaintiff’s claims are legally unfounded within 21 days. Office of Civil Rights sends Ms. Bicep a copy of the school’s response. The plaintiff must respond within 21 days The Office of Civil Rights investigates the alleged complaint to determine a basis for a lawsuit or cause of action.

Team Evaluation and Avoidance Solution In order to inform all parties of the existing Public Law that governs special education in which all children must be given a free and appropriate education. Administration schedules a meeting with Ms. Bicep, resource room teacher the districts special education supervisor and parents to develop/discuss an inclusion plan. The resource room teacher should provide the team with documentation of student work to establish the appropriateness of placement in Ms. Bicep’s Social Studies class. Upon Ms. Bicep initial claim of students’ inappropriate behavior a manifestation determination should be assessed. The team should meet to determine whether the misbehavior was a function of the disability. To further assist Ms. Bicep a functional behavioral assessment is performed by the IEP team. If the inappropriate behavior persist Ms. Bicep, resource room teacher the districts special education supervisor and parents develop a behavior intervention plan which may result in a change of placement. (COP)

Team Evaluation and Avoidance Solution A final step to avoid litigation with Ms. Bicep would be to solicit an Alternative Dispute Resolution (ADR) mediation arbitration To avoid legal action an administrator could settle out of court through an alternative dispute resolution program. One way is to sit down with a mediator, a neutral third person to negotiate an agreement. The other basic type of ADR is arbitration usually used to resolve labor management disputes. A trained arbitrator acts as the third party. The arbitrator’s decision could be binding or nonbinding depending on the State law.

Impact on School District Bicep’s case would impact a school district because Public Law mandates free and appropriate education for all disabled children and schools must adhere to this law. Another significant implication that a case like this could have on a school district is loss of federal funding. Public Law section 504 would cut off federal funds from schools that discriminate.