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School e-Law Update
April 17, 2009
Volume 09-02
Headlines Links
(Click the header links below to
view full summaries)
Federal,
U.S. Supreme Court, and 4th Circuit News (affecting schools in North
Carolina, Maryland, South Carolina, West Virginia)
Personnel—Discrimination: U.S. Supreme Court decision offers employees increased right to sue for retaliation under Title VII.
Personnel—Qualified Immunity: Two-step test for qualified immunity tempered after recent U.S. Supreme Court decision.
CyberSafety: Overturned law intended to protect children from online pornography
rejected by Supreme Court.
Special
Education—IEPs: Court
required to evaluate adequacy of current IEP and may not consider retrospective
evidence in analysis.
Operations—Funding:
U.S. Education Secretary Duncan addresses federal stimulus funding and NCLB
issues.
North Carolina
Cases and News
Operations—State
Governance: North Carolinas
State School Superintendent sues State to force clarification of executive
structure.
Students—First Amendment: Wake County judge orders public
schooling for three home schooled students in Raleigh.
School
Operations—Tort Liability:
Injured elementary school student and parent entitled to recover
interest on damage award against school district.
Charter Schools—State
Funding: North Carolina
charter schools win suit to get share of state education funding.
Cases
of Interest from Other Jurisdictions
Students—Free Speech: School district policy restricting religious groups from participating in school open houses violates Free Speech clause.
Personnel—Free Speech: First Amendment does not protect employees speech when primary purpose of speech is to keep ones job.
Personnel—Free Speech: Sixth Circuit upholds school districts order requiring teacher to cease communicating with colleague.
Independent Schools—Discrimination: Expulsion of homosexual students by private religious high school upheld by California Appeals Court.
Personnel—Defamation: Former Detroit Public School principal failed to prove defamation by former employer.
Independent Schools—Operations: Private Schools English-only rule upheld by Kansas court.
Students—Free Speech: Schools ban on clothing featuring Confederate flag upheld by Eight Circuit as reasonable under circumstances.
Disabled Students: ADA claim allowed to proceed for student with learning disabilities in Washington D.C.
CyberSpeech—First Amendment: California community college may restrict Internet use on library computers to educational and employment uses.
CyberSpeech—Employee Privacy: Connecticut court determines principal had reasonable expectation of privacy in her school email account.
CyberSpeech—Students: Fake teacher and school administrator
MySpace pages posted by students not protected as parodies.
CyberSystems—E-Mail: New Jersey court bars school board candidates from soliciting support via school system e-mail.
CyberSafety—Sexting: Court precludes criminal charges against student for sexting pictures through her cell phone.
Other
News
Selected Federal, U.S. Supreme
Court, and 4th Circuit News
(Affecting North Carolina, Maryland,
South Carolina, Virginia and West Virginia)
The United States Supreme Court unanimously overturned the Sixth Circuit Court of Appeals and held that employees who participate in response to an employers internal investigation into discrimination claims and then allege they were harassed as well, are entitled to the protections of the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. The Court, in an opinion authored by Justice Souter, refused to uphold what it called a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question. The Court feared employees would be in a Catch-22 where an employee who responded to the internal investigation would be barred from bringing a claim, and if she refused to participate in the investigation and later brought a Title VII claim, the employer could argue it had taken reasonable care to prevent discrimination, but the employee did not take advantage of the opportunity presented previously. Source: NSBA Legal Clips, Jan. 29, 2009. Read the case.
The
qualified immunity analysis that has existed since 2001 to protect school
districts and their employees from lawsuits has required courts to determine
whether (1) a constitutional right of the plaintiff was violated, and (2) if
so, whether the right was clearly established at the time of the defendants
misconduct. The Supreme Court in
January unanimously declared that while the analysis remains often appropriate,
it should no longer be regarded as mandatory in all cases.
Influencing
the Courts decision was the fact that lower federal courts have struggled to
apply the two-step analysis consistently and as a consequence, the procedure
create(s) a risk of bad decisionmaking because the Constitutional issues in
many cases are not entirely elucidated when immunity is asserted. Source: NSBA Legal Clips, Jan. 29, 2009. Read the
case.
The Child Online Protection Act (COPA), created and approved by Congress over 10 years ago, was intended to prevent minors from accessing harmful content via the Internet. In early 2009, though, the Supreme Court effectively quashed COPA by refusing to hear an appeal from the Third Circuit Court of Appeals which struck down the Act as unconstitutional. The Third Circuit determined the law was a violation of the First Amendment and that Internet filter and other parental-control technologies constituted less restrictive means and, therefore, of less threat to free speech to protect children from online harm. Read the 3rd Circuit decision.
The
Fourth Circuit Court of Appeals determined that when evaluating Individualized
Educational Programs (IEP) under the Individuals with Disabilities Act (IDEA),
courts are required to focus on the current adequacy of the IEP at the time of
creation and may not engage in retrospective analyses of IEP adequacy. Thus, in the case before the court, the
lower court was incorrect to consider evidence of a students 10th grade IEP to
evaluate the adequacy of his 8th grade IEP. Source: Westlaw
Watch, Feb. 4, 2009. Read the case.
The following report was
contained in the April 9, 2009 Legal Clips, published by the National School Boards Association:
The Associated Press reports that Education Secretary Arne Duncan has released the first $44 billion in economic stimulus money directed to schools but said strings will be attached to the next round of aid. "This is an historic opportunity, a once-in-a-lifetime opportunity, to lay the groundwork for a generation of education reforms," Duncan said. The Obama administration on Wednesday made available half of the dollars for federal programs that pay for kindergarten through 12th grade and special education. In addition, Duncan will provide applications for states to get money from a special fund to stabilize state and local budgets. However, loopholes created by Congress could let states and school districts spend the money on other things, such as playground equipment or new construction. It also could let lawmakers cut state aid and replace it with stimulus dollars, leaving school districts with no additional aid as local tax revenues plummet. Duncan said last week he will "come down like a ton of bricks" and withhold the second round of funds from anyone who defies Obama's wishes. Duncan outlined a series of steps that states must take to get the next round of dollars. States must report on: (1) Teacher quality and evaluation systems; (2) School restructuring under the No Child Left Behind law and also on charter schools; (3) Scores on state and national tests to show whether state standards are rigorous enough; (4) How many high school graduates go on to earn college credits; and (5) Their establishment of sophisticated data systems to track student performance. Duncan intends to use the information to make the case for states to adopt common standards, a controversial issue on which previous presidents trod lightly. States and districts will also have a chance later this year to compete for money from a $5 billion fund solely for innovations that raise academic standards.
Cases and News Affecting North
Carolina Schools
State School Superintendent June Atkinson has sued the state of
North Carolina in an effort to clarify her authority to lead the State
Department of Public Instruction (DPI).
Despite being elected for her second four-year term in November,
Atkinson has never had clear and unrestricted authority to lead the DPI. In Atkinsons first term under
then-governor Mike Easley, to the Deputy Superintendent essentially managed the
agency. Recently Governor
Beverly Perdue appointed, with Board approval, William (Bill) Harrison to
fill the newly established position of Chief Executive Officers as well as to
serve as Chairman of the State Board.
The
confusion over the role of the State Superintendent of Public Instruction stems
from confusion over the relationship of the North Carolina Constitution and
state statute setting forth authority of the Board and the Superintendent.
Supporting Atkinsons case is the North Carolina Institute for Constitutional
Law, Directed by former North Carolina Supreme Court Justice Robert Orr. Orr maintains the state Constitution
requires the Superintendent to run the DPI. Furthermore, he warns of the danger in allowing the
legislature to strip cabinet level positions of their powers—if the State
School Superintendent can be stripped of its power, he asks, what is to stop
the legislature from stripping authority from the Attorney General or Insurance
Commissioner? Source: Raleigh News & Observer, April 3,
2009. Read the story.
A Wake County judges decision to mandate public school
attendance for three home-schooled Raleigh children was met with public
criticism. Their mother, who was
going through a divorce, had home schooled the three children since July
2005. Their father maintains that
the children will be sheltered and will fall behind their peers socially if
allowed to continue being home schooled.
The judge in the divorce proceedings agreed with the father, stating the
best interests of the children was for them to go to public school next year
so that they may challenge some of the ideas that [their mother has] taught
them, and they could learn from that.
Opponents of the decision called the Court, created websites
advocating the removal of the judge from the case, and contacted other media
outlets. Conservative analyst Alan
Keyes commented on the decision on his website, writing, if [the judges] idea
of socialization includes the need to challenge the Christian ideas their
mother has taught them, then he not only interferes with her natural right to
raise up her children, he tramples on one of the most important elements of the
free exercise of religion.
Source: Raleigh News &
Observer, March 13, 2009. Read the story.
A
North Carolina elementary school student was injured on the school playground
when a swings chain broke and he fell to the ground. His mother and he were awarded $6,000 and $160,000, respectively
by a trial court jury, but the judge refused to allow the recovery of any
interest on the damage awards.
The
North Carolina Court of Appeals reversed the trial courts decision not to
award interest on the damage recovery finding that the school had waived its
governmental immunity by participating in the North Carolina School Boards
Trust (NCSBT) and under the NCSBT agreement the school signed, the term damages
was defined to include pre-judgment and post-judgment interest awarded in any
monetary judgment pursuant to North Carolina statutory law. Thus, the injured student and his
parent were entitled to interest on their damage awards. Source: Westlaw Watch, April 3, 2009. Read
the case.
Two Raleigh charter
schools serving predominately students that a previous School e-Law Update
reported were in danger of being closed by the State Board of Education because
of low academic performance may be spared. PreEminent Charter and Torchlight Academy both launched
aggressive public relations campaigns, invited state education officials to
visit, and vowed to improve low test scores if allowed to remain open after the
State Board recommended closure in January 2009. The State Board appeared ready to extend PreEminents
charter another three years and re-evaluate test scores at that time. Torchlight Academys fate is less
certain because of concerns about the schools audit. Nonetheless, the State Board appeared willing to listen to
Torchlight leaders responses to the Boards questions about the audit. Source: Raleigh News & Observer, Feb. 5, 2009. Read
the story.
A ruling favoring North Carolina charter schools was upheld by the North Carolina Court of Appeals in February. The suit centered around education funding in the state and specifically whether charter schools were entitled to per pupil funding from the local public school districts funds. In upholding the trial courts ruling that allowed charter schools to receive their per pupil pro rata share of state education funding from the local school district, the Court of Appeals reasoned that providing equal funding to charter school students and regular public school students was required under the legislation authorizing charter schools. Source: NSBA Legal Clips, Read the case.
Legal Updates: Other
Jurisdictions
A
school district in Minnesota violated the free speech clause on the basis of
its policy to allow only patriotic organizations to attend district open
houses and distribute literature.
The policy was challenged by a non profit religious organization for
children that was blocked from participating in the open houses. The school claimed its policy was
mandated by the Boy Scout Act, which requires schools wishing to receive
federal funds to grant access to patriotic organizations. The Court, though, determined that the
open houses were limited public forums and that the school had discriminated
against the religious group on the basis of its viewpoint which is
constitutionally impermissible.
Source: Westlaw Watch,
March 17, 2009. Read the
case.
The
Eighth Circuit Court of Appeals held that a University of Arkansas employees
speech about alleged sexual harassment was not protectable First Amendment
speech. The Court reasoned that
the employees speech was primarily motivated by his interest in keeping his job
and therefore was not public speech by a citizen on public matters which would
have been protected by the First Amendment. Source: Westlaw
Watch, March 25, 2009. Read the case.
A
Kentucky teacher filed suit claiming his First Amendment rights had been
violated after he was prohibited from communicating with a certain colleague in
the future after sending several inappropriate letters containing threats to
the colleague and her family. The
Sixth Circuit Court of Appeals upheld the communication prohibition imposed by
the school district because it was narrowly tailored; that is, it applied only
to communications between the teacher and the one colleague who had previously
been upset and disturbed by the teachers previous actions. Thus, the teacher was still free to
communicate with other teachers, in any forum, on matters of public
interest. Read the case.
A
California Court of Appeals ruled that a private religious nonprofit high
school was not bound by the Unruh Civil Rights Act and therefore was entitled
to expel two students for having a homosexual relationship. Because the school was not a business
establishment involved in selling goods or services to the public and because
the schools overall purpose and function was to educate students in accordance
with its religious beliefs, the court refused to hold the school accountable
for the expulsions. Source: Westlaw Watch, Feb. 6, 2009. Read the case.
A
former high school principal in the Detroit Public Schools was fired in 2002
for allegedly misappropriating school district funds. The principal sued the Board of Education asserting numerous
claims, most of which were dismissed through protracted litigation over the
course of seven years. Finally,
the Sixth Circuit Court of Appeals agreed to hear the principals appeal on his
defamation claim under Michigan state law. The principal alleged the Board of Education defamed him because
of statements the Board of Education made to a private school that hired, and
shortly thereafter fired, him; and because the Board of Education cooperated
with the Detroit News which
published an article detailing some of the financial allegations the school
made against the principal.
To
maintain a defamation claim under Michigan state law, a plaintiff must show
that the defendant 1) made a false and defamatory statement concerning the
plaintiff; 2) communicated the statement to a third party without privilege;
and 3) acted with fault amounting to at least negligence. Additionally, the U.S. Supreme Court
has stated that if a plaintiff is a public official or a public figure, the
First Amendment requires the plaintiff to prove that the defendants statements
are false and that the defendant acted with actual malice. The Supreme Court has also held that
when defamation claims involve matter[s] of public concern, the plaintiff must
show that the statements are false whether or not the individual involved is a
public official or public figure.
In
affirming the lower courts decision in favor of the Board of Education, the
Sixth Circuit refused to state whether the principal was a public official or
public figure. However, the court
decided that news stories about the financial irregularities at the school were
matters of public concern and the principal had not proved that the allegedly
defamatory statements were false.
The court went on to state that Detroit residents interest in their
school systems well-being is justified because a well-functioning public
education system is critical to our democracy. Source: Westlaw
Watch, Feb. 21, 2009. Read the case.
A
Georgia teacher who alleged her child was abused and disclosed the details to a
public body did not prevail on her First Amendment retaliation claims. The Eleventh Circuit Court of Appeals
reasoned that the teachers speech about her childs abuse and the principals
refusal to report the abuse were private speech and therefore not
constitutionally protected.
Source: Westlaw Watch, Feb.
7, 2009. Read the case.
The
Fifth Circuit Court of Appeals held that a Texas statute that provided for
public school students to recite the Pledges of Allegiance to the flags of the
United States and of Texas did not violate the Establishment Clause of the
First Amendment. The statute,
which also called for a minute of silence after the Pledges for students to
reflect, pray, meditate, or engage in any other silent activity helped foster
patriotism and thoughtful contemplation, both secular purposes, and therefore
not constituting state sponsorship of religion in violation of the
Establishment Clause. Source: Westlaw Watch, March 18, 2009. Read the
case.
The
Eleventh Circuit Court of Appeals overturned an injunction and upheld the
decision of the Miami-Dade County School Board to remove a book about life in
Cuba from its elementary school libraries. The book, entitled Vamos a Cuba!, was removed after a Cuban exile and former
political prisoner objected to its inclusion in the library because it
contained misleading information about everyday life in Cuba. Specifically, the book suggested
inaccurately that life in Cuba was virtually synonymous with life in America as
far as how Cubans went to school and worked, and even what they ate, failing to
mention the realities of food rationing, government control of production and
industry, and prohibitions against private initiative.
Opponents
of the school boards actions maintained that the removal of the book was an
unconstitutional violation of free speech rights and that the school board was
motivated by personal and ideological disagreements with the ideas expressed in
therein. The court disagreed with
this contention, though, because the school board had provided evidence that the
factual inaccuracies in the book were the reason for its removal from the
library. Moreover, the court noted
that even the plaintiff agreed that factual inaccuracies in non-fiction books
constituted a legitimate pedagogical reason for which a book could be
removed.
Lastly,
the court refused to find that the school board had committed a due process
violation because it had provided an opportunity for the plaintiff to be heard
and made an informed decision before removing the book from the library. Source: NSBA Legal Clips, Feb. 12, 2009. Read the case.
A
private Catholic school in Kansas was sued for having instituted an
English-only rule mandating that other languages were prohibited in
school. The school maintained that
the intent of the rule was to ensure students and teachers could understand
what was being said and to prevent disparaging remarks from being made in
another language. The court held
that the schools reasons were legitimate and non-discriminatory and therefore
was not discriminatory under Title VI of the Civil Rights Act of 1964 or
Section 1981. Source: Westlaw Watch, Feb. 10, 2009. Read the case.
A
large Missouri high school with a minority enrollment of less than 2% (15-20
minority students out of 1200 total students) instituted a ban on clothing
featuring the Confederate flag in the wake of a number of race-related
incidents at the school and in the community. Students violating the ban were subject to discipline, which
they argued violated their First Amendment rights.
The
Eighth Circuit Court of Appeals held that the ban on clothing featuring the
Confederate flag did not violate students constitutional rights because the
school reasonably anticipated substantial disruption to school operations in
light of the ongoing racial tensions at school and in the surrounding community. Source: Westlaw Watch, Feb. 3, 2009. Read the
case.
A
California school district violated a state statute by failing to provide the
parents of a student an equivalent opportunity to conduct an individualized
educational assessment. The
parents retained a pediatric neurologist to conduct an investigation into the
Individualized Educational Program (IEP) the school had created, but the
neurologists observation was limited to 20 minutes in violation of the
statue. Subsequently, the parents
sued claiming their due process rights had been violated.
The
Ninth Circuit Court of Appeals ruled that the school district had violated the
state statute, but that the violation was merely procedural and did not
significantly impact the outcome of the hearing. In support of its decision, it cited the fact that the
neurologist could have returned to the school for further visits exceeding 20
minutes; the neurologist, despite the procedural violations, admittedly was
able to give an informed and independent opinion on the adequacy of the IEP;
and because the parents presented the neurologists opinion, they were not
significantly affected by the statutory violation. Source: Westlaw Watch, Feb. 21, 2009. Read
the case.
The
alleged denial of a Free and Public Education (FAPE) for a student diagnosed
with a learning disability was enough evidence to make out a claim under the
Americans with Disabilities Act (ADA) and the Rehabilitation Act according to a
district court in the District of Columbia. Source: Westlaw
Watch, Feb. 21, 2009. Read the case.
The California Court of Appeals upheld
a community colleges policy which limited the use of library computers for
accessing the Internet except for educational or employment purposes. The court found this restriction did
not conflict with a state statute prohibiting schools from punishing students
for actions in violation of school rules that would otherwise be protected by
the First Amendment because the schools library computers were not part of a
public forum. Read the case.
A
Connecticut district court found that a school principal had a reasonable
expectation of privacy in her email, including an email and attachment she sent
to her attorney describing problems she was having with the school
superintendent. While the
principal was on medical leave, the superintendent accessed the principals
email account and forwarded the email and attached letter she had previously
sent to her attorney to his email account in violation of her Fourth Amendment
rights against unreasonable searches.
The
court also found that the principals use of her computer to draft and send the
letter was within the schools Acceptable Use Policy (AUP), which restricted
use of school computers to professional or career development-related
uses. Additionally, while the AUP
also permitted routine monitoring and maintenance of the computer system, the
court did not believe the superintendents actions qualified as such. Read the case.
A
group of high school students in Tennessee created fake Internet profiles for a
teacher/coach and assistant principal at their school and posted them on the
social networking site, MySpace. The profiles, which were accessible to the
general public, contained sexually suggestive comments about female students
that appeared to have been posted by the school employees. The students claimed their websites
were parodies and therefore protected by the First Amendment. However, the court held that the
profiles were not parodies because they were reasonably believable (in fact,
the school received calls about the postings from concerned community members)
and were not clearly exaggerated to enhance humor.)
CyberSystems—E-Mail: New Jersey court bars school board
candidates from soliciting support via school system e-mail.
According to a recent news
report, a New Jersey state court issued a cease and desist order to two board
candidates from using school system e-mail server to solicit support from
system employees. The candidates
purportedly obtained the staff e-mails from the school web site. The systems technology policy
prohibits staff from using the systems network to assist with a campaign for
election of any person to any office or for the promotion of or opposition to
any ballot proposition. The
provision applies to anyone using the systems mail server.
Source:
Asbury Park Press, Mar. 24, 2009.
CyberSafety—Sexting: Court precludes criminal charges
against student for sexting pictures through her cell phone. Miller v. George Skumanick
(M.D.Pa. Apr. 3, 2009)
A judge ordered a
Pennsylvania district attorney from filing criminal pornography charges against
female students after they sent pictures of themselves clad in their underwear
via their cell phones. Officials
at the girls school found pictures in several student cell phones of
"scantily clad, semi-nude and nude teenage girls and turned the phones
over to the district attorney. The
parents, in this case, successfully contended that the images did not constitute
child pornography since they did not depict sexual activity or show the girls'
genitalia. The district attorney
had demanded in lieu of being criminally charged, that the girls attend a
"re-education" program and write essays about their improper
conduct. The parents successfully
argued that such a requirement violated their due process rights to educate
their children. Source: Westlaw
Watch, April 16, 2009. Read The
FirstPost article.
Other News
The Memphis (Tenn.) City School system has seen a startling
increase in the number of homeless and transient students in its schools. Due at least in part to rising
unemployment and foreclosure actions, the schools homeless services department
has provided services to more students than normal through the first half of
the school year. The federal McKinney-Vento
Homeless Assistance Act requires schools to provide services to homeless
students in a school that is convenient to the students current residence,
whether it is a relatives home, a car, or a shelter.
The Superintendent of the Memphis City School system has
proposed that the school system transform an under-utilized school building
into a district-run residential school for up to 300 of the most fragile and
least resilient students in the system.
Because the idea is novel and has not been attempted in a public system
before, the school is examining private boarding schools as models. The Superintendent acknowledged the
difficulties in such an endeavor and offered a scenario under which parents
would voluntarily give the school custody for a year or two, but did not
foresee making the students wards of the state. Source: Memphis
Commercial Appeal, Jan. 25, 2009 (NSBA Legal Clips, Jan. 29, 2009.) Read
the article.
YouTube
and websites like it that allow users to post self-made video content have
become repositories for a great deal of video depicting teen violence. Some of the videos are created
spontaneously when inevitable schoolyard fights break out, but more troubling
are the videos that demonstrate premeditation, such as the beating of an
unsuspecting teenager last year in Florida. Officials fear these videos, which are quite popular online
and can draw over a million viewings, are glamorizing violence and will
encourage even more such behavior.
Ironically,
some school officials have used YouTube as a tool to identify and punish
students involved in fights that they might not otherwise have detected, a task
made easier when identifying information like school names are posted with the
videos. A few schools have even
added rules to their student policy manuals banning the recording of fights,
with violators being subject to punishment, including suspension. Finally, elected officials in
Californias state government have proposed a new state law that would require
YouTube and similar websites to actively search for and remove violent video
content. YouTube currently employs
a user enforcement procedure whereby any user can flag a video for graphic
or gratuitous violence. The
company then reviews flagged videos for rules violations and potential
removal. Source: e-School News, March 19, 2009. Read the
article.
The phenomenon known as
sexting, whereby teens send nude or semi-nude self-portraits via cell phone,
has become more prevalent in the United States as cell phones with built-in
cameras have become virtually ubiquitous.
Studies have indicated up to 20% of teen girls have sent or posted
online revealing self-portraits.
In some jurisdictions, ambitious prosecutors have begun charging teens
with child porn violations for sexting.
This has proven controversial because child porn charges are generally
felonies and can result in teenagers obtaining permanent sex offender
status.
Prosecutors
maintain such harsh penalties will convey the seriousness of the activity and
quickly end the practice. However,
others view the criminal penalties as excessive for teens guilty of little more
than poor judgment. Opponents
believe the incidents are best handled between parent and child, with parents
exercising more control over the technology use of their children. Source: e-School News, Feb. 5, 2009. Read the
story.
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