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School e-Law Update

September 12, 2008

Volume 08-09

Headline Links

(Click the header links below to view full summaries)

Cases and News Affecting North Carolina Schools

· Operations – School Finance: NC School Boards Association wins long-standing lawsuit worth over $700 million for public schools.

· Operations – Annual Filing Requirements: NSBA resource available to assist school’s with annual Federal filings.

· Cybernews – Operations: Wake County’s $17,000 public records request.

Cases and News of Interest from Other Jurisdictions

· Cyberlaw – Safety: Child Online Protection Act struck down by Third Circuit Court of Appeals.

· Students – Discipline: School’s use of timeout room upheld.

· Students – Discrimination: Minnesota school district violated civil rights of student group members.

· Students – First Amendment: Florida Pledge of Allegiance statute partially invalidated.

· Cyberlaw – Operations – E-rate: FCC contemplates increasing types of technology eligible for E-rate funding.

Cyberlaw Note: We have previously reported that the number of school cyberlaw cases and newsworthy items is on the rise. For a more comprehensive summary that includes additional items not reported in this update, see our school cyberlaw update page at http://www.lex-is.com/docs/cyberupdate08.htm.

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Cases and News Directly Affecting North Carolina Schools

Operations – School Finance: Court ruling awards over $700 million for public schools.

NC School Board Association v. Moore, N0. 98-14156 (Sup. Ct. Aug. 8, 2008).

The latest development in a longstanding lawsuit between the North Carolina School Boards Association (NCSBA) and the state of North Carolina and treasurer Richard Moore involves a superior court ruling that the state owed nearly $750 million to fund North Carolina schools. The funds represent the revenues taken in by the state for civil fines and penalties from January 1, 1996 through June 30, 2005, which, according to the court, should have gone into the Civil Penalty and Forfeiture Fund and ultimately to North Carolina schools. The victory for schools, however, has been undercut by the legislature after redirecting funds previously budgeted for other education accounts to pay the award.

Read the case.

Read the story.

Source: Raleigh News & Observer, Aug. 13, 2008

Operations – Annual Filing Requirements: NSBA resource available to assist school’s with annual Federal filings.

The National School Boards Association (NSBA) published its yearly list of selected annual notices schools are required to file under Federal Law. In addition, this resource contains helpful links to model notices and filings that school administrators can use in formulating notices for their schools. Topics included in the list include No Child Left Behind, Individuals with Disabilities Act, and the Federal Educational Rights and Privacy Act.

Access the list. Source: National School Boards Association, Sept. 6, 2008.

Cybernews – Records: Wake County’s $17,000 public records request.

The Wake County School District recently endured a public records request from the Raleigh News & Observer that cost it an estimated $17,000, primarily in staff time spent hand sorting through approximately 3,000 emails looking for the 219 messages relating to the District’s assignment of over 9,000 students. Since this incident, the Wake County School District has purchased new software making similar searches in the future significantly less time-consuming and costly.

Read the story. Source: eSchoolNews.com, Aug. 1, 2006.

Legal Updates: Other Jurisdictions

(Cases not binding in North Carolina)

Cyberlaw – Safety: Child Online Protection Act struck down again by Third Circuit Court of Appeals.

ACLU v. Mukasey, No. 07-2539 (3d Cir. July 22, 2008).

The Third Circuit Court of Appeals ruled that the federal Child Online Protection Act (COPA) was unconstitutional because of First Amendment free speech violations. COPA dates back over a decade and has undergone much litigation. The United States Supreme Court previously overturned a 2002 Third Circuit ruling that COPA’s “contemporary community standards” was overbroad in determining if online materials were harmful to minors. Subsequently, the Supreme Court upheld a district court preliminary injunction preventing COPA’s enforcement because less restrictive methods existed to achieve its goal of protecting minors from harmful Internet content.

In the present case, the Third Circuit held that the federal government failed to satisfy its burden of proof “that COPA is a more effective and less restrictive alternative to the use of Internet filters…” in accomplishing its objectives. (In this instance the government must find the least restrictive means of doing so since free speech rights are placed in jeopardy.) Thus, despite the government having a “compelling interest” in preventing minors from viewing harmful material online, COPA was too broad and restricted online content that “adults have a constitutional right to receive.”

Read the case.

Students – Discipline: School’s use of timeout room upheld.

Couture v. Board of Education of Albuquerque Public Schools, No. 07-2133 (10th Cir. Aug. 7, 2008)

The Tenth Circuit Court of Appeals ruled in favor of a New Mexico school district rejecting a claim that it violated a special needs student’s Fourth Amendment right against unreasonable seizures. The child was six years old with a history of violent and threatening behavior towards teachers and fellow students. Consequently, the school placed him in a special education classroom and, with initial input from the student’s mother, created an individual education plan (IEP) intended to help the student control his behavior through a variety of methods including supervised timeouts.

However, after just two-and-a-half months of instruction under the IEP, the student’s mother sued the school system, principal, and teacher, because of their repeated use of the timeouts during which her child was placed in a small, empty, dimly lit room with the window covered at times to prevent the student from looking out and causing further disruptions. The court determined that “[t]emporarily removing [the child], given the threat he often posed to the emotional, psychological, and physical safety of the students and teachers, was eminently reasonable.”

Read the case.

Students – Discrimination – Equal Access: Minnesota school district violated civil rights of student group members.

Straights and Gays for Equality v. Osseo Area Schools-District No. 279, No. 07-3576 (8th Cir. Aug. 29, 2008)

A Minnesota High School student group, Straights and Gays for Equality (SAGE), prevailed in its civil rights claim under the Equal Access Act (EAA). The Eighth Circuit Court of Appeals held that because SAGE was a noncurricular student group, the school was required, under the EAA, to provide it with “the same access to school facilities and avenues of communication” as other noncurricular groups. Thus, while the school had not restricted SAGE from using the school for meetings, it had limited the group more than it had limited the cheerleading and synchronized swimming groups in violation of the equal treatment requirement of the EAA.

Read the case.

Students – First Amendment: Florida Pledge of Allegiance statute partially invalidated on its face.

Frazier v. Winn, No. 06-14662 (11th Cir. July 23, 2008)

The Eleventh Circuit Court of Appeals ruled that the state’s statute requiring public school students to stand at attention and to recite the Pledge of Allegiance was partially unconstitutional on its face (i.e., not as applied to specific circumstances). One part of the statute exempted students from reciting the Pledge if parents requested in writing such exemption. The other part of the statute, as interpreted by the court, required all ‘civilians’ to stand at attention during the Pledge even if exempted from having to recite it. The court ruled that this latter provision requiring everyone to stand threatened to violate the free speech rights of those whose parents chose to have their children not recite the Pledge. The court refused, though, to overturn the recitation portion of the statute because it allowed for the exemption by parental request. The court ruled that a parent has a “ right to direct the education and upbringing of one’s children.” Thus, the court determined that a parent’s interest may be greater than that of his/her child where participating in the Pledge at school is concerned. (The court refused, however, to rule on whether the recitation provision might be unconstitutional if applied to particular situations, such as when involving an older, more mature high school student who may have the right to refuse to recite the Pledge apart from parental permission.)

Read the case.

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

Saddler v. Quitman County School District, No. 07-60656 (5th Cir. May 16, 2008).

The Fifth Circuit Court of Appeals upheld a Mississippi District Court’s ruling in favor of a school board involving a claim under Title VII of the Civil Rights Act of 1964 brought by an employee who alleged the district’s superintendent sexually assaulted her. The administrative assistant claimed that after taking a leave of absence following an 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, not the board, to “employ and discharge,” and the school board is only 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 in Mississippi and because the facts of the case indicated only the superintendent “had the requisite power in fact [because] he created the job . . ., hired [the alleged victim] for it, did not interview anyone else, and [acted] outside the normal hiring process,” the “personal staff” exception of Title VII precluded the plaintiff’s claims against the board.

Read the case.

FCC contemplates increasing types of technology eligible for E-rate funding.

The Federal Communications Commission (FCC) is receiving comments on whether any additional types of services should be covered under the E-rate program. These include filtering software, additional telephone services, dark fiber, text messaging, firewall service, anti-virus/anti-spam software, scheduling services, telephone broadcast messaging, and certain wireless Internet access applications. The FCC also seeks comment on whether to retain interconnected Voice over Internet Protocol (interconnected VoIP) as an eligible service. Comments are due by September 18, 2008, and reply comments are due by October 3, 2008. The FCC proposed rule if found at 73 Fed. Reg. 48,352

Source: National School Boards Association (date unknown).

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