School Law Update
June 9, 2008
Volume 08-06
Headlines Links
(Click the header links below to view
full summaries)
Cases and
News Affecting North Carolina Schools
Employment
Discrimination
–Retaliation: Supreme Court upholds right of employees to sue for
retaliation under civil rights statutes.
Cyberlaw – Student Safety: U.S. Supreme Court upholds child porn
law provision.
Cyberlaw – Employee Speech: Fourth Circuit rules that employees
work e-mail forwarding civil rights materials is not protected speech.
School Operations – Student Assignment
&Schedules: Court rules Wake
County Schools may establish year-round schools and assign students accordingly
without prior parent consent.
Sexual Harassment: N.C. Court of Appeals rules that N.C. State
failed to take adequate corrective measures to address student harassment
complaints against professor.
Cyberlaw – Operations – Email
Retention: N.C. e-mail panel makes recommendations.
Cyber News – Student Safety: Wake County Schools aim to shelter
students from cybercrime.
Cyberlaw – Student Safety: N.C. teen cell phone law largely
unheeded.
Other
Jurisdictions
Cyberlaw – Student Speech: 2nd Circuit upholds discipline for vulgar blog comments
about school officials.
Employment
Discrimination
–Retaliation: Employee fails to show his nonrenewal was motivated by retaliation
for exercising free speech rights.
Personnel – Hiring Practices: Court upholds board policy prohibiting
employment of convicted felons as permanent teachers.
Cyberlaw – Religious Establishment: School
website containing link to anti-homosexuality websites was permissible.
Student Free Speech
and Access: Court allows student religious club
with faith-based membership requirements to proceed to trial.
Student Free Speech: School officials enjoined from
prohibiting "Be Happy, Not Gay T-shirts.
Religious
Establishment: Football coach participation in team
prayers violates First Amendment Establishment Clause.
Cyberlaw – Employee Privacy: Bus drivers
privacy rights not violated by installation of video camera on bus.
Cyberlaw – Student Speech: Court rejects conviction of student who
posts profane statements about principal on social networking site.
Cyberlaw – Copyright: Company not liable to
students for contract and copyright damages related to plagiarism software.
Cyberlaw – Student Privacy: School system
cell phone ban did not violate parents due process rights.
Cyberlaw – Religious Establishment: School
website containing link to anti-homosexuality websites was permissible.
Cyberlaw – Operations: Wisconsin law to
keep cyber schools running.
Other News
Cyber News – Student Safety: The naked truth
about teen photo distribution.
CyberSystems – E-mail: Spam celebrates 30 years
of clogging e-mail inboxes.
Cases and News Affecting North
Carolina Schools
Employment
Discrimination – Retaliation: Supreme Court upholds right of employees to
sue for retaliation under civil rights statutes.
Gmez-Prez
v.Potter, No. 06-1321 (May 27, 2008)
CBOCS West, Inc.
v. Humphries, No. 06-1431 (May 27, 2008)
In two separate
cases decided together, the United States Supreme Court upheld the right
of employees to sue for
retaliation based on their earlier discrimination complaints under a pair of
civil rights statutes even though the statutes do not explicitly afford such a
right.
According to one
news source, retaliation complaints are increasing, having doubled in the last
fifteen years, since it can be easier to prove retaliation than the initial
discrimination claim.
The decision is
similar to one issued in 2005 in which the court held that under Title IX,
barring sex discrimination by educational institutions receiving federal funds,
school officials may not retaliate against those who bring sex-discrimination
complaints. That statute, similarly, does not explicitly prohibit retaliation.
Source: National
School Boards Association, Legal Clips, June 5, 2008.
Cyberlaw–
Student Safety: U.S. Supreme Court
upholds child porn law provision.
U.S. v.
Williams, 06-694 (U.S. May 19, 2008)
The federal
PROTECT ACT prohibits "knowingly advertis[ing], promot[ing], present[ing],
distribut[ing], or solicit[ing] any material or purported material in a manner
that reflects the belief, or that is intended to cause another to believe, that
the material or purported material is illegal child pornography."
In a lawsuit
challenging that provision as unconstitutionally overbroad and vague, the Court
upheld the provision by a 7-2 vote in an opinion authored by Justice
Scalia. In doing so, the Court
upheld the applicable criminal penalties for promoting child pornography. It rejected concerns that the law would
overbroadly prohibit seemingly acceptable communications, such as widely-viewed
movies, classic literature, or even a grandparents e-mails describing her
grandchildren.
Cyberlaw–
Employee Speech: Fourth Circuit
rules that employees work e-mail forwarding civil rights materials is not
protected speech.
Bowers v.
Scurry(4th Cir. May 2, 2008) [unpublished]
A University of Virginia
human resource employee used her university e-mail to forward NAACP material in
opposition to a school pay restructuring plan. The university fired the employee contending that the e-mail
implied that it was an official HR communication, causing confusion to
employees. The university had a
policy that limited the sending of personal e-mails. In the employees resulting First Amendment
lawsuit, the Court upheld the university action. Although the employee had a legitimate interest in communicating
on a matter of public concern, the universitys interest in maintaining an
efficient workplace prevailed.
School
Operations – Student Assignment & Schedules: Court rules Wake County Schools may
establish year-round schools and assign students accordingly without prior
parent consent.
Wake Cares, Inc.
v. Wake County Bd. of Educ., NO. COA07-810 (N.C. App. May 6, 2008)
Reversing a
trial court ruling, the North Carolina Court of Appeals has ruled that the Wake
County School System has authority under state law to establish year-round
public schools and to assign students to those schools without prior parental
consent.
Sexual
Harassment: N.C. Court of Appeals
rules that N.C. State failed to take adequate corrective measures to address
student harassment complaints against professor.
Gonzalez
v. N.C. State, NO.
COA07-87 (Apr. 15, 2008)
Wood v. North
Carolina State University, COA-07-88 (Apr. 15, 2008)
In two companion
cases, the North Carolina Court of Appeals upheld decisions by the states
Industrial Commission awarding $150,000 to each of two sexual harassment
victims on the ground that the defendant, North Carolina State University, was
negligent in supervising and retaining one of its engineering professors. Rejecting an appeal by the University
challenging the Commissions decisions, the court reasoned that victims, not
just the plaintiffs, on numerous occasions had complained to school
officials. In spite of this, at
one point, the harassing professor was promoted. The school contended in part that the award was not
warranted because victims in some instances failed to help themselves by
reporting misconduct or filing formal charges.
Said the
court,"NCSU cannot, by turning a blind eye to reported misdeeds, hope to
escape liability based on subsequent victims' failures to report later bad
behavior. The court also
approved of the Commissions finding that sixteen-plus years of reported
misconduct and failure to address it adequately shows institutional
indifference and a lack of concern on NCSU's part. Also that [A] person of
ordinary prudence could have reasonably foreseen that such indifference could
lead to unreported sexual misconduct and the eventual injuries suffered by
plaintiffs.
Cyberlaw
–Operations – Email Retention: N.C. e-mail
panel makes recommendations.
A panel created
to examine the states e-mail retention policies has issued its
recommendations. The recommendations
still allow state employees to determine what records to keep as having
enduring administrative value and which to delete. The Chairman of the panel noted that you simply have to
trust employees at some level in exercising their discretion. Such a practice has been challenged in
a lawsuit by a group of newspapers and media organizations. Additional recommendations include:
v Requiring all state employees who handle
public records to complete a one-hour online training tutorial.
v Consolidate the eighteen different
archiving systems into one statewide archiving database to allow for easier
searching of stored records.
v Preserving back-up files for five years,
rather than 30 days.
Source: Raleigh News & Observer, May 16, 2008
Cyber News – Student Safety: Wake County
Schools aim to shelter students from cybercrime.
A recent news
report states Fears about sexual predators and online stalkers could force the
Wake County school system to cut the amount of information about students that
is posted on the Internet.
A new policy
that the Wake school board is scheduled to adopt Tuesday would impose
guidelines that call for student anonymity online, such as using pseudonyms and
not listing names with photographs.
It's part of a
trend, being urged by the state and the N.C. School Boards Association, to make
it harder for criminals to get personal information about children.
Source: Raleigh News & Observer, June 2, 2008
Cyberlaw–
Student Safety: N.C. teen cell
phone law largely unheeded.
A recent study
indicates students often ignore North Carolinas recent ban on teen driver cell
phone use. The news report
provides the following summary of the law.
Drivers under 18
years old are barred by North Carolina law from using mobile telephones while
driving. The ban took effect in December 2006. It also covers other wireless
activity including text messaging, e-mail, music and games.
Exceptions to
the ban allow teen drivers to use their phones to talk with:
v Parents, spouses and legal guardians.
v Police, medical and other emergency
personnel, regarding emergency situations.
The violation is
an infraction and carries a $25 fine. Driver's insurance points are not
affected. But a violation can delay a driver's ability to move from provisional
to full driving privileges under North Carolina's graduated license
program. A similar law, which
became effective in December 2007, bars school bus drivers from talking on cell
phones while their buses are rolling.
Source: Raleigh News & Observer, June 13, 2008
Legal Updates: Other Jurisdictions
(These cases are not binding in North
Carolina)
Cyberlaw – Student Speech: 2nd Circuit upholds discipline for
vulgar blog comments about school officials.
Doninger v. Niehoff, No.07-3885-cv (2nd Cir. May
29, 2008)
The Second
Circuit Court of Appeals upheld a ruling denying a student a preliminary
injunction and, consequently, refused to require her school to allow her to run
for class office. School officials
considered the students vulgar personal blog comments including statements
that school administrators were "douchebags" for refusing to hold a
band event at the desired time. Under First Amendment jurisprudence, the Court
concurred that the students conduct could create a foreseeable risk of
substantial disruption.
Source: Westlaw Watch,
June 7, 2008.
Employment
Discrimination – Retaliation: Employee fails to show his nonrenewal was
motivated by retaliation for exercising free speech rights.
Samuelson
v.LaPorte Cmty. Sch. Corp., No. 06-4351 (7th Cir., May 22, 2008)
The Seventh
Circuit Court of Appeals upheld a ruling rejecting a teachers retaliation
claim following the nonrenewal of his girls basketball coaching contract. The court also ruled also that
the district's "chain of command" policy was not a prior speech
restraint. The contract was not
renewed due to complaints by players, parents and coaches; poor and improper
fundraising and financial practices; and inadequate coaching skills. The
teacher claimed the action was in retaliation for raising concerns about
disparities in treatment of the girls' sports programs, and other hiring,
computer and redistricting issues.
The court determined that the plaintiff, to the extent his concerns
involved protected First Amendment speech about matters of public concern,
failed to prove that the systems reasons were pretextual (i.e., fabricated)
to mask retaliatory motives.
Source: National
School Boards Association, Legal Clips.
Personnel–
Hiring Practices: Court upholds
board policy prohibiting employment of convicted felons as permanent
teachers.
Crook v. El Paso Independent School Dist., No. 07-50968 (5th Cir. May 8, 2008)
The plaintiff
was an applicant for a teaching position. Having thirteen prior felony
convictions, he sued the school system because of its policy prohibiting
employment of convicted felons.
The Fifth Circuit Court of Appeals ruled that the systems policy did
not violate the plaintiffs due process rights because it reasonably served the
school systems legitimate interest of protecting children from physical danger
and corrupt influences.
Source: Westlaw Watch,
June 4, 2008.
Student
Free Speech and Access: Court
allows student religious club with faith-based membership requirements to
proceed to trial.
Truth v. Kent
School Dist., No. 04-35876 (9th
Cir. Apr. 25, 2008)
In a second
opinion by the Ninth Circuit Court of Appeals involving the same case, the
court, after withdrawing its prior ruling, allowed a student religious clubs
lawsuit to proceed under the First Amendment Free Speech clause and the Equal
Access Act (EEA). The
court concluded that the club has raised valid claims that merit a trial on the
issue of whether the school district applied its non-discrimination policy
arbitrarily based on religious content. In its earlier August 2007 ruling, the court ruled
that the district could refuse to recognized the Truth club under the
districts non-discrimination policy because the club required its members to
affirm certain Christian religious beliefs (e.g., to be committed to grow in
faith in Christ). During the
judicial proceeding, the club amended its charter to allow for three types of
memberships: voting members, non-voting members, and attendees. Once again, the district
refused to recognize the club. It
was the revised charter and school action that the court considered. The courts ruling only allows
the club to pursue a trial of its claims; it did not determine that those
claims should prevail.
Source: NSBA
Legal Clips, May 15, 2008.
Student
Free Speech: School officials
enjoined from prohibiting "Be Happy, Not Gay T-shirts.
Nuxoll ex rel. Nuxoll v. Indian Prairie
School Dist. # 204,
No.07-C-1586 (7th Cir. Apr. 23, 2008)
Following a Day
of Silence intended to promote toleration and protection of gay students, a group
of students opposed to homosexuality sought to wear T- shirts containing the
slogan "Be Happy, Not Gay.
The students sought a preliminary injunction preventing officials from
disciplining them for wearing the shirts, pending outcome of the case. The
Ninth Circuit Court of Appeals ruled that the students were entitled to the
injunction on the grounds that their legal claims were likely to succeed.
Religious
Establishment: Football coach
participating in team prayers violates First Amendment Establishment Clause.
Borden v. School Dist. of Twp. of East
Brunswick, No. 06-3890(3rd
Cir. Apr. 15, 2008)
A high school
football coach participated in pre-game team prayers when he knelt and bowed
his head during such prayers. The coach had organized, led, and participated in
team locker room and pre-game meal prayers for twenty-three years. The court concluded that the
coach was endorsing religion by such conduct, not just showing his respect.
Source:
WestlawWatch.
Cyberlaw–
Employee Privacy: Bus drivers privacy rights not violated by installation of
video camera on bus.
Goodwin v.
Moyer, 2006 WL 839342 (M.D.Pa. 2008)
A federal
district court ruled that a video camera installed on a school bus, unbeknownst
to the bus driver, did not violate the driver's Fourth Amendment privacy rights. The driver had no expectation of
privacy: he was in a public area where he could be viewed through the windows,
he was not engaged in any private acts, and the system had a compelling
interest to protect students and the driver.
Cyberlaw – Employee
Privacy: Teachers privacy rights not violated by proposed audio monitoring of
classroom.
Plock v. Bd.
ofEduc. of Freeport Sch. Dist. No. 145, 07-C-50060, (N.D. Ill. Dec. 18, 2007).
A federal district
court ruled that a school district's plan to audio record certain classrooms
did not violate a special education teachers Fourth Amendment claim because
the teacher had no expectation of privacy in her classroom. Given the information regularly disseminated
by students, plus the schools interest in classroom activities, a teachers
expectation of privacy would be unreasonable.
Cyberlaw
–Student Speech: Court
rejects conviction of student who posts profane statements about principal on
social networking site.
A.B. v. State, No. 67S01-0709-JV-373 (Ind. May 13, 2008)
The state of Indiana
prosecuted a student for felonious harassment for posting profane statements
about her principal after her friend was disciplined. The statements in question were posted on the friends
private profile on a social networking internet site. The state court ruled
that the state failed to prove, as required under state statute, that the
student intended to harass, annoy, or alarm her former middle school principal. According to the court, the student had
no subjective expectation that the principal would discover the comments.
Lex-IS Point:
North Carolina
has comparable criminal statutes; it is important to remember from this case
that intent is a critical component of a successful felony charge.
Cyberlaw–
Copyright: Company not liable to students for contract and copyright damages
related to plagiarism software.
A.V. v. iParadigms, Ltd. Liability Co., No. 07-0293 (E.D.Va., Mar. 11, 2008)
The defendants
software program, Turintin, enables schools to find instances of plagiarism by
evaluating the originality of student writing projects. The Turintin software
is used by over 7,000 schools and website receives 100,000 daily student
submissions. The program then
compares the written submissions to materials contained in the Turintin
database and in other databases of journal articles and writings and produces
an originality report for the teacher. The teacher can then determine if
there are plagiarism concerns. Students who submit their writings must agree to
create a profile and accept the user agreement (the clickwrap agreement),
which includes a limitation of liability clause.
Four students
from Virginia and Arizona school systems challenged the defendants archiving
of the students written materials. The students were required to submit their
written projects via the company website or receive a zero on the assignment if
they refused. When the students
submitted their written work, their documents contained a disclaimer stating
that they did not consent to having their works archived. The company, nevertheless, continued to
archive their works as part of their database.
The state court
ruled that, under Virginia law, the clickwrap agreement was valid and
enforceable, including the contracts indemnity clause the protected the
defendant from liability. The
students attempt to modify the contract with a disclaimer was not enforceable
because the contract prohibited modification: the original agreement was, in
essence, a take-it-or-leave-it offer.
The court also
rejected the plaintiffs duress claims: that they were coerced into signing
the agreement by the school system to avoid penalty. To the extent there was any duress, said the court,
such a claim must be asserted against the school system, not the software
company.
Furthermore, the
court ruled that defendants use of plaintiffs archived works did not infringe
federal copyright protections because such use fell under the fair use
exception of the law. The court
determined that the use was highly beneficial to the school and
transformative (i.e., used for a different purpose): the use of the materials
was for comparative (not expressive) purposes, was not a disincentive to
student creativity, and did not undercut any anticipated student revenue.
Cyberlaw– Student Privacy: School system
cell phone ban did not violate parents due process rights.
Price v. New York City Bd. of Educ., 2008 NY Slip Op 03512 (N.Y.A.D. 1
Dept., Apr. 22, 2008
The New York
City Education Chancellor issued a ban on student cell phones, which led to the
confiscation of thousands of such phones. Parents sued, alleging federal and
state due process violations. The
state supreme court ruled that the ban was a rational and legitimate exercise
of the schools power to maintain order and discipline in the schools.
Harper ex rel.
Harper v. Poway Unified School Dist. (S.D.Cal.)
A federal
district court in California has ruled that a school webpage that included
links to religious websites opposing homosexuality did not violate the First
Amendment Establishment Clause. The plaintiffs failed to prove that the links
did not fulfill a secular educational purpose or effect or that the links
excessively entangled the school with religion. The court noted that a student had previously been
disciplined for wearing an anti-homosexuality t-shirt, showing that the
district was not pursuing a religious agenda.
Source: Westlaw Watch.
Cyberlaw–
Operations: Wisconsin law to keep cyber schools running.
Wisconsin has
passed a law allowing online schools to qualify this fall for state aid, but
limits their enrollment and subjects them to program audits.
Source: Milwaukee
Journal-Sentinel, April 7, 2008.
Other News
CyberNews
– Student Safety: The naked truth about teen photo distribution.
A recent article
describes the alarming trend of students using cell phones and other electronic
devices to distribute nude and sexually explicit pictures of themselves or
others. Because of the ease and
anonymity of electronic communications, these communications can be distributed
widely and, in some cases, lead to great physical and emotional harm.
Teens who send
nude pictures of themselves or receive nude pictures from other teens may not
be aware of the legal risks. As
indicated in the article and according to the U.S. Department of Justice
(www.usdoj.gov):
v Any image of a child -- defined as anyone
under 18 -- engaged in sexually explicit conduct is illegal contraband.
v The legal definition of sexually explicit
conduct does not require that an image depict a child engaging in sexual
activity. A picture of a naked child may constitute illegal child pornography
if it is sufficiently sexually suggestive.
Source:
Raleigh News & Observer, June 5, 2008
CyberSystems–
E-mail: Spam celebrates 30 years of clogging e-mail inboxes.
A recent news
report reminds readers of the birth of e-mail spam 30 years ago when computer
salesman Gary Thuerk, on May 3, 1978, distributed a message on Arapanet, the
precursor to the internet, that read:
"We invite you to come see the [Computer System] 2020 and hear
about the DECSYSTEM-20 family at the two product presentations we will be
giving in California this month."
The message
produced a backlash from academic and government users of the system. The article cites Microsoft
founder Bill Gates 2004 prediction that spam would soon be eliminated. This year also marks the
10-year anniversary of the first Viagra spam e-mail; one such early message
offered a bottle of 30 pills for $500.00. Real spam, not the virtual kind, celebrated its 70thbirthday
last year.
Raleigh News & Observer, May 3, 2008 (from the Washington Post).
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