Legal Instruction
and Support for School Leaders
School e-Law Update
January 27, 2009
Volume 09-01
Headlines Links
(Click the header links below to
view full summaries)
Cases
and News Affecting North Carolina Schools
Civil Rights—Discrimination: U.S. Supreme Court rules unanimously that 1983 claim for
student sexual harassment not barred by Title IX
Special Education—IDEA: Parental placement of child must be evaluated yearly
according to Fourth Circuit Court of Appeals
Student
Privacy—FERPA: Updated FERPA rules effective Jan. 8, 2009
Charter Schools—Renewals: State set to revoke charters from two charter schools in
Special
Education—IDEA:
U.S. Supreme Court to hear special education reimbursement case
Constitutional
Law—Student Searches:
Strip search of
Legal
Updates: Other Jurisdictions
Civil
Rights—Free Speech:
U.S. Supreme Court refuses to consider case concerning hecklers veto
of anti-abortion activists
Students—Sexual
Harassment: Court
determines school district can be deliberately indifferent despite responding
to each of students claims of harassment
Charter
Schools—Finances: Charter school
funding provision unenforceable as against public policy
Constitutional
Law—Free Speech: Art teachers in-class mention of his for-profit
drawing class outside of school does not qualify for First Amendment protection
Special Education —IDEA: Failure of school district to perform
FBA when creating IEP does not violate IDEA
Other
News
School
Operations—Legal Issues:
Council of School Attorneys identifies 10 most pressing K-12 legal
issues
CyberSafety—Social
Networking:
Intervention aimed at encouraging more responsible use of MySpace shows
promise
Students—Transportation
Safety: Schools and
legislatures addressing incidents of students abandoned on buses
Cases and News Affecting North
Carolina Schools
In a
unanimous decision that clarifies a plaintiffs right to a remedy for sexual
harassment, the United States Supreme Court has determined that Title IX of the
Education Amendments of 1972 does not prevent an alleged victim of gender
discrimination in educational settings from bringing suit under Title 42 U.S.
Code Section 1983 (1983). Under 1983,
any individual whose rights are deprived by an action of the state is entitled
to have his/her claims heard by a court, provided he/she has followed the
appropriate procedures laid out in the statute (e.g., exhausting all
administrative remedies). Title
IX, on the other hand, contains no specific mechanism by which a victim of
discrimination gets his/her case into court; however, the Supreme Court has
recognized an implied private right of action by which individuals can gain
entry into court and obtain a remedy.
The case
before the Court involved a kindergarten student complaining about being
sexually harassed by older students on the bus. After investigations into the students claims by both
school and police officials failed to result in any disciplinary or criminal
action, the students parents brought suit against the school under both Title
IX and 1983. Both the District
Court and the First Circuit Court of Appeals dismissed the claims, ruling that
the comprehensiveness of Title IX precluded bringing 1983 claims as well.
In its
decision, the Supreme Court held that the First Circuit had misinterpreted a
series of Supreme Court cases in which 1983 claims were precluded by other
statutes. The Supreme Court stated
that when a plaintiff sues under a non-1983 statute that contains a
comprehensive remedial scheme, that plaintiff would be precluded from bringing
a 1983 claim. However, the Court
determined that because Title IXs primary remedy is the withdrawal of federal
funds to noncompliant institutions and the implied private cause of action did
not constitute a comprehensive remedial scheme, the students 1983 claim was
not precluded by Title IX. The
Court also refuted the reasoning of the First Circuit stating, we cannot agree
with the Court of Appeals that Congress saw Title IX as the sole means of
vindicating the constitutional right to be free from gender discrimination
perpetrated by educational institutions. Source: NSBA
Legal Clips, Jan. 23. 2009. Read the case.
In a case
arising under the Individuals with Disabilities Act (IDEA) involving a disabled
student who had been diagnosed with mental retardation, mild to moderate
autism, and a significant communication disorder, the Fourth Circuit Court of
Appeals ruled that a
The U.S. Department
of Education recently updated the enforcement regulations pertaining to the
Family Educational Rights and Privacy Act (FERPA) in the wake of the Virginia
Tech shootings and rising concerns about the online identity security of
students. The updated regulations
make crystal clear that schools [can] release student information to parents,
law enforcement [personnel], . . . school officials, and health officials.
As it
concerns student information stored on-line, the regulations encourage institutions
to use alternate identification numbers instead of Social Security numbers to
identify student records, thus decreasing the chance that a students identity
can be stolen if the institutions IT system is compromised. Source: e-School News.com, Jan. 12, 2009. Read the article.
North
Carolina State Board of Education officials are expected to vote to close two
predominately black charter schools in
The U.S.
Supreme Court has agreed to hear an
Schools
will receive more guidance on how to approach student searches after the U.S.
Supreme Court agreed to hear a case involving the strip search of a 13-year-old
Legal Updates: Other
Jurisdictions
(These cases are not binding in
North Carolina)
The Los
Angeles County Sheriffs Department was judged to have violated the free speech
rights of anti-abortion activists after ordering them to leave the vicinity of
a middle school where they had displayed large, graphic photographs of aborted
fetuses. Despite a
The Ninth
Circuit found the sheriffs department violated the so-called hecklers veto,
whereby free speech is banned because of the listeners reaction to it and not
because of any disruptive behavior, such as noise, physical obstruction, or
other disruptive conduct, on the part of the activists. Moreover, the Ninth Circuit declined to
carve out a minors exception to the hecklers veto for school settings,
despite the sheriffs departments claims that such a position substantially
limited the power of the government to protect the school environment. Source: Westlaw Watch, Jan. 17, 2009. Read the Ninth Circuit case.
The Sixth
Circuit Court of Appeals cleared the way for a former Hudson Area Schools (
The Court
found that in spite of the school district having dealt with each individual
incident of harassment, if further harassment continues, a jury is not
precluded by law from finding the school districts response is clearly
unreasonable. Consequently, the
court refused to shield the school from liability reasoning that if Hudson
knew that its methods [of preventing harassment against an individual student]
were ineffective, but did not change those methods, a reasonable jury could
conclude that at some point during the . . . period of harassment the school
districts standard and ineffective response to the known harassment became clearly
unreasonable. Source: NSBA Legal Clips, Jan. 15, 2009. Read the case.
The
Colorado Court of Appeals ruled that a contract between a school district and a
charter school violated public policy and was unenforceable. The contract provided that the schools
would pro rate the per pupil revenue (PPR) for students transferring into or
out of the charter school based on the number of school days spent in each
school. However, because state
statute required the public school district to base its funding on PPR as of
October 1 of each year, allowing adjustments after that date could destabilize
a school districts funding for non-enrollment dependent fixed expenses. Source: Westlaw Watch, Jan. 15, 2009. Read the case.
A high
school art teacher at a public school encouraged his students to enroll in a
for-profit art class he was teaching outside the school that included
instruction on drawing nude models.
The Second Circuit Court of Appeals held that the teachers statements,
which were made at school during class time, were made pursuant to his official
job duties as an art teacher, and therefore, were not considered speech on a
matter of public concern. Consequently,
the First Amendment did not prevent the teacher from being disciplined for
making the statements.
Source: NSBA Legal Clips,
Jan. 23. 2009.
A
Other News
The following
notice was recently published in a legal report. The cover story of the February 2009 issue of the American School Board Journal lists the top ten legal issues in
K-12 education identified by members of NSBAs [National School Boards
Association] Council of School Attorneys (COSA) in a survey conducted in
November 2008. The top ten issues, in order, are: (1) Employee
discrimination/termination; (2) Finance adequacy and equity issues; (3) Student
discipline; (4) Collective bargaining; (5) Employment issues related to changes
in the Americans with Disabilities Act and the Family Medical Leave Act; (6)
Private placement issues related to special education; (7) Disputes regarding
attorney fees in special education cases; (8) Free speech; (9) Educator sexual
misconduct; and (10) No Child Left Behind Act interventions. The answers
reflect how school districts struggle to deal—and at times comply—with
a maze of laws and regulations that is growing almost annually. An accompanying article also addresses some
[of] the issues that made or missed the top ten list and presents Tips on
Hiring a School Attorney. Both articles feature interviews with numerous COSA
members. Source: NSBA Legal Clips, Jan. 23. 2009. Read the story.
Two
investigations aimed at understanding how 18-20 year olds used the social
networking site MySpace yielded simultaneously startling and encouraging
news. The most startling aspect of
the research revealed that the MySpace pages of more than one-half of users in
this age group contained references, often explicit in nature, to risky
behaviors like sex, drinking, and violence. For example, researchers found public accounts of losing ones
virginity and how one could increase their chance of having sex with another
user (e.g., bring flowers and take me to dinner).
On the
other hand, researchers were encouraged by the responses they received to
simple email messages sent to MySpace users from Dr. Meg informing them that
their on-line references to risky behaviors had been noticed and suggesting
that the user reconsider making such information available to the general
public via MySpace. Three months
after sending the emails, 42% of recipients had removed the references to sex
or drinking or changed their profiles to private compared to just 29% of those
users who did not receive the emails.
Source: e-School News.com,
Jan. 7, 2009. Read the article.
School
officials across the country have renewed their focus on student transportation
procedures after reports of students being stranded in school vehicles have
garnered publicity recently.
Although no official statistics are compiled, and only a very small
percentage of the estimated 26 million students who ride the bus to and from
school daily are ever stranded, schools are nonetheless investing money in bus
alarms and cameras to prevent future occurrences. The state of
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