Lex-IS Services

Lex-IS Services

School e-Law Update

July 17, 2008

Volume 08-08

Headline Links

(Click the header links below to view full summaries)

Cases and News Affecting North Carolina Schools

Students – Testing – Accountability: U.S. Education Department requires N.C. schools to use new reading test results.

Cyberlaw – Safety: N.C. Appeals Court overturns cyber-stalking decision.

Students – Delinquency: Juvenile delinquency charge overturned by North Carolina Court of Appeals.

Students – Discipline – Weapons: North Carolina Court of Appeals upholds gun possession on school grounds charge.

Negligence – Transportation: School Board not liable for death of elementary student killed by school bus on school property.

(For North Carolina legislative updates, see the North Carolina State Board Legislative Report.)

Case Updates: Other Jurisdictions (cases not binding in North Carolina)

Personnel – Title VII: Superintendent’s personal staff exempted from Title VII protections.

Cyberlaw – Systems – Employee Privacy: Employees gain privacy protections in text messages.

Students – Harassment: Disabled student’s harassment claims against middle school denied.

Other News

Cyberlaw – Speech: Internet service providers walk free speech fine line.

Cyberlaw – Systems – Record Retention: New law requires additional attention to archiving email.

CyberNews – Safety: “Digital Disconnect” – Parents in the dark regarding children’s Internet use.

CyberNews – Safety: Police departments utilize text messaging to fight crime.

CyberNews – Schooling – Ethics: GMAT test cracking down on online cheaters.

CyberNews – Schooling – Instruction: Digital assessment use can be greatly improved.

CyberNews – Systems – Network Integrity: Computer hackers targeting school system computers to launch attacks

CyberNews – Schooling – Equity: Digital-equity gap troubling to educators.

Cases and News Affecting North Carolina Schools

Federal Regulation: U.S. Education Department requires N.C. schools to use new reading test results.

The U.S. Education Department (ED) denied North Carolina’s request to ignore the results of the state’s revamped reading test for purposes of satisfying No Child Left Behind (NCLB) benchmarks for this academic year. The decision is based on the concern that low-scoring students would not receive the help they needed to improve . The state’s new end-of-grade reading tests are expected to yield more failing scores than under the previous test, thus likely increasing the number of North Carolina schools required to provide tutoring services.

The ED also refused to allow North Carolina to use 5-year High School graduation rates instead of the more traditional four-year rates to determine school improvement under NCLB, reasoning that four years is the standard number of years high school students need to earn a diploma.

Read the story.

Source: Raleigh News & Observer, July 1, 2008

Cyberlaw – Safety: N.C. Appeals Court overturns cyber-stalking decision.

Ramsey v. Harman, No. COA07-1536 (N.C. App. June 17, 2008).

An on-line war of words between parents conducted over various blogs and personal websites resulted in the issuance of a civil no-contact order and an accompanying order to cease “cyber-stalking.” The underlying facts of this case suggest a long, deeply rooted disdain for one family harbored by another woman. The alleged cyber-stalker in this case exhibited her disdain by posting a series of messages on-line suggesting that the plaintiffs were bullies and that they were the reason other kids did not want to go to school. Additionally, the defendant’s website contained a voice recording of the late mother and grandmother of the plaintiffs; referred to the older plaintiff as a ‘crow,’ ‘idiot,’ and ‘wack’; and called her “one of the biggest bullies in this county.”

The North Carolina Court of Appeals, though, disagreed with a trial court that had determined the defendant’s on-line activities amounted to stalking as defined in North Carolina statute. The Appeals court held that while defendant had harassed the plaintiffs, she had not done so with the requisite intent to have “stalked” her. North Carolina’s stalking statue (G.S. 4.277.3(c)) requires repeated harassment with intent to: a) place the person in reasonable fear for his safety or the safety of his family, or b) to cause the person to suffer substantial emotional distress by placing him in fear of death, injury, or continued harassment. The Appeals court failed to find any evidence indicating that either plaintiff had actually suffered any emotional distress. Without this factor, the trial court was incorrect in finding that defendant had stalked the plaintiffs. In vacating the decision, the court stated, “the statute does not allow parties to implicate and interject our courts into juvenile hurls of gossip and innuendo between feuding parties where no evidence of any statutory ground is shown to justify entry of a no-contact order.”

Read the case.

Lex-IS Points:

· School officials and teachers, as well as students and parents, should have some familiarity with North Carolina’s cybercrimes, including “Cyberstalking” (G.S. 14-193.6, which establishes a broad definition that includes intentional and repeated “annoying” or “embarrassing” communications). Several of these provisions can be viewed online via the Lex-IS website.

· Pursuing or the threat of pursuing criminal and other civil remedies is one way to hold in check cyber misconduct by students and others.

· At the time of this Update, North Carolina proposed anti-bullying legislation (H1366) was held up in negotiations.

Students – Delinquency: Juvenile delinquency charge overturned by North Carolina Court of Appeals.

In re S.M., No. COA07-1373 (N.C. App. May 20, 2008).

The North Carolina Court of Appeals overturned a Nash County District Court decision, ruling that a high school student’s actions did not constitute delinquency. The student and a friend were found walking the halls during class time without permission. When confronted first by the principal, the two students “started ‘laughing and giggling,’ pulled up the hoods on their jackets, and went ‘running and laughing away.’” Shortly thereafter, the school’s resource officer was notified and he found the students still in the halls without permission. When they did not respond to his calls to stop, he chased them briefly (10-15 seconds), caught them, and brought them back to the office.

When analyzing the actions of the student in this case, the Court of Appeals could not find any evidence that the student’s actions had satisfied one of the three circumstances in which juvenile delinquency charges are generally upheld:

vulgar language,
aggressive or violent behavior, or
behavior serious enough to require a teacher to leave the class unattended in order to discipline the student.

As a result, the court concluded that the student’s behavior, “although no doubt an annoyance to the school administrator, does not rise to the level of criminal activity.”

Read the case.

Students – Discipline – Weapons: North Carolina Court of Appeals upholds charge of gun possession on school grounds.

State v. Hoilman, No. COA 07-736 (N.C. App. April 15, 2008).

A spectator at a high school football game was escorted from the stands for yelling at the coach and appearing intoxicated. Police officers on the scene searched the spectator, found a knife and gun on his person, and arrested him. Subsequently, the police officers asked the spectator’s wife for permission to search the couple’s car for more weapons. She granted permission and the search uncovered another gun in the glove compartment.

The spectator claimed his civil rights were violated because of procedural irregularities relating to the manner in which the police conducted the searches of his person and his wife’s vehicle, and the seizure of the three weapons. The Appeals Court, though, upheld his punishment and determined the police had not engaged in any improper activities.

Read the case.

Negligence – Transportation: School Board not liable for death of elementary student killed by school bus on school property.

Stacy v. Merrill, No. COA07-1466 (N.C. App. June 17, 2008).

Three brothers were riding their bikes home from school shortly after being dismissed when one of the boys fell off his bike and directly into the path of an oncoming school bus. Tragically, the boy was killed and both of his brothers witnessed the incident. Because the incident occurred on school grounds, the boy’s family sued the school district, among other things, for negligently failing to provide safe means to exit the school, failing to adequately train bus drivers, and failing to separate pedestrian, bicycle, and vehicular traffic on the property.

The suit was ultimately dismissed on procedural grounds because the North Carolina statutes require tort claims arising as a result of alleged negligence on the part of public school bus drivers to be heard by the North Carolina Industrial Commission. The Court went on to state that even if the suit was properly heard in a Superior Court, the school had not waived its sovereign immunity, so the suit was still improper. While it is possible for a school to waive sovereign immunity through the purchase of liability insurance under G.S. 115C-42, the Alamance County school board had not done so.

Read the case.

Legal Updates: Other Jurisdictions

(Cases not binding in North Carolina)

Personnel – Title VII: Superintendent’s personal staff member exempted from Title VII protections.

Saddler v. Quitman County School District, (5th Cir. May 16, 2008).

The Fifth Circuit Court of Appeals upheld a Mississippi District Court’s ruling in favor of a school board on charges brought against it by an employee who alleged the school’s superintendent sexually assaulted her. The administrative assistant brought charges against the school board under Title VII of the Civil Rights Act of 1964 when, after taking a leave of absence following the assault, she was transferred to a new job in an elementary school. She claimed “the transfer was a retaliatory demotion for her having reported the sexual assault and harassment.”

The school board prevailed for two reasons. First, under Mississippi state law, the superintendent has the power to “employ and discharge,” and the school board is limited to acting pursuant to the recommendations of the superintendent. Second, Title VII exempts from its purview the “personal staff” of elected officials. Thus, because the superintendent is an elected official and because the facts of the case indicated the superintendent “had the requisite power in fact: he created the job . . ., hired [the alleged victim] for it, did not interview anyone else, and hired [the alleged victim] outside the normal hiring process,” the “personal staff” exception of Title VII precluded the plaintiff’s claims.

Read the case.

Cyberlaw – Personnel – Privacy: Employees gain privacy protections in text messages.

Quon v. Arch Wireless, No. 07-55282 (9th Cir. June 18, 2008).

School cyberlaw is an emerging area of school law. When a federal appellate court issues a decision it is worth noting, even though it is outside North Carolina jurisdiction. A recent Ninth Circuit Court of Appeals decision makes it much more difficult for public employers within that jurisdiction to access the text messages sent by their employees through a private provider’s network because employees may have a reasonable expectation of privacy in the messages they send.

The case involved members of the Ontario (Cal.) Police Department (“OPD”) using their department-issued wireless pagers for personal text messaging in excess of their allotted usage plans. The OPD had purchased pagers for their employees with text-messaging capabilities and services (the “Plan”) from a private provider. Text messages were sent and received via the pagers and transmitted and stored in the provider’s computer network. City policy, under which the OPD operated, had no specific text-message or pager policy. Its “Computer, Internet, and E-mail Policy,” however, was broadly worded to include a number of computer and network-related equipment. That policy explicitly prohibited personal use of such equipment and notified employees of the city’s right to control, monitor, and search any device covered by the policy. It also stated that employees had “no expectation of privacy” and no right to confidentiality in their use. The OCD supervisors communicated to employees that use of the pager text messaging was considered “e-mail” under the city policy.

The plaintiffs, on several occasions, exceeded their pager use limits under the Plan. They were informed that as long as they paid the overage charges, the OCD would not inspect their pager messages to determine if the overages were a result of personal use. Eventually the OCD conducted its audit to examine the cause of the overages. The service provider, therefore, supplied a hardcopy to the OCD of plaintiffs’ text messages. Those records indicated that the plaintiffs used their pagers for extensive personal use, including the sending and receiving of sexually explicit content.

The plaintiffs sued the OCD, the city, several city officials, and the service provider, claiming that the city violated their Fourth Amendment protections against unreasonable searches and that the service provider violated the federal Stored Communications Act of 1986 – a part of the Electronic Communications Privacy Act – by disclosing plaintiffs’ pager use records to the city without the plaintiffs’ consent.

Regarding the Stored Communications Act claims, the court ruled that the service provider violated the law by not obtaining consent from the plaintiffs, despite the fact that the city was the account subscriber.

Regarding the Fourth Amendment claim, the court noted

The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means is a new frontier in Fourth Amendment jurisprudence that has been little explored.

The court declared that users have a reasonable expectation of privacy in their records stored on a private service provider’s network. Despite the city’s broadly worded e-mail policy, the court noted that the city had never previously monitored or audited pager text messages. In addition, the plaintiffs had always been allowed to pay their overage charges in lieu of having their messages audited. These practices instilled an expectation that such messages were private, despite formal policies and pronouncements to the contrary. Furthermore, ruled the court, the scope of the city’s search of records was also unreasonable since there were other simpler ways it could address the problem of Plan overages.

Finally, the court did rule that city officials were immune from liability in their individual capacities. Even though the plaintiffs’ rights were violated, those rights were not so “clearly established” that city officials could reasonably know that.

Read the case.

Lex-IS Points:

Remember, this case is not binding on North Carolina schools. Whether its employee-friendly and liberal constitutional interpretation would be upheld in this jurisdiction is highly questionable.
Such cases are very fact specific; even the court notes that its ruling can not be broadly applied.
The court’s ruling raises a number of practical concerns for government employers. For example, use of private electronic service providers may broaden an employee’s Fourth Amendment rights. Also, despite broad and explicit policies and pronouncements declaring no employee expectation of privacy in electronic communications, failure to periodically notify and implement monitoring efforts may increasingly create an “expectation of privacy.”
Unfortunately, the court’s ruling could lead employers, at least in the 9^th Circuit, to start monitoring and reviewing employee communications when there is no apparent need to do so simply to address the court’s point regarding an employer’s right to monitor and search: i.e., “if you don’t use it, you lose it.” In other words, an employer’s failure to do what it has the right to do – i.e., search employee communications – could lull employees into expecting privacy and therefore produce a Fourth Amendment right.
School attorneys should review school system policies and practices for consistency.

School Operations – Contracts – Tuition: Disabled student’s harassment claims against middle school denied.

S.S. v. Eastern Kentucky University, No. 06-6165 (6th Cir. July 2, 2008).

The Sixth Circuit Court of Appeals affirmed a lower court decision in favor of a Kentucky middle school on charges that it allowed a disabled student to be harassed at school. The Court held in favor of the school because the school had responded to every reported incident involving the disabled student and had utilized various intervention methods in an effort to prevent further incidents. Among other things, the school conducted individual and group interviews with fellow students, brought in outside speakers to talk about name-calling and taunting, separated students involved in altercations, held a mediation session between students, talked to students’ parents about incidents, and even utilized the police to talk to students.

Read the case.

Other News

Cyberlaw – Speech: Internet service providers walk free speech fine line.

According to a recent news report, Internet companies who offer popular social websites are becoming more vigilant in removing offensive content. While there are some universally accepted reasons for this (e.g., decrease spam, security threats, child pornography), many other censorship practices require a difficult balancing of competing interests. Some groups favoring free speech decry such practices, others favoring Internet safety, applaud the efforts.

Parties opposed to sensitive content on such popular websites as Facebook and MySpace sometimes complain to service providers and succeed in getting the content removed. This troubles many free speech proponents who argue that removal from MySpace or Facebook is functionally equivalent to removal from the Internet because of the extreme popularity of these sites and the lack of viable competitors. MySpace, though, says it does not engage in censorship and only removes content when it receives user complaints regarding spam or other abuses.

Read the story.

Source: Raleigh News & Observer, July 7, 2008

Cyberlaw – Systems – Record Retention: New law requires additional attention to archiving email.

A December 2006 change in the Federal Rules of Civil Procedure required school district email and instant messages to be included in the discovery process pursuant to federal lawsuits. Despite this change, recent studies suggest that as many as 90 percent of schools have not implemented appropriate digital archiving technologies to satisfy the discovery requests that would accompany a lawsuit in which the school was involved.

The Consortium for School Networking has released a paper that it hopes will enlighten school officials on what they should know, how they should approach digital archiving, and what other schools are doing to address the archiving requirements.

Read the story.

Source: eSchoolNews.com, July 2, 2008

CyberNews – Safety: “Digital Disconnect”—Parents in the dark regarding Internet use of their kids.

A recent report on the Internet usage of children in the U.S. revealed some startling statistics about how little parents actually know about the Internet habits of their kids. This so-called “digital disconnect” is evidenced by data suggesting kids spend ten times longer on the Internet (20 hours per month) than their parents think they do (2 hours per month). Additionally, while 25% of U.S. children have reportedly been asked to provide personal information over the Internet, less than 20% of parents think this has happened to their child. Despite this disconnect, 79% of parents are worried about the content their children can be exposed to on the Internet, though less than half place parental controls on their family computers. In October, the National Cyber Security Alliance will highlight child safety on the Internet and is encouraging schools to participate in the effort.

Read the story.

Source: eSchoolNews.com, June 27, 2008

CyberNews – Safety: Police Departments utilize text messaging to fight crime.

In an attempt to capitalize on the immense popularity of text messaging among American youths, police departments in over 100 communities have instituted anonymous text messaging systems. Based on the Crime Stoppers telephone model, the hope is that more American teenagers and young adults, for whom text messaging is a primary form of communication, will report criminal activity via text messaging than are currently doing so via phone.

Already, police departments have reported getting excellent information regarding drug deals, including specific details regarding time, place, and even license plate numbers.

Read the story.