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Suit alleges Oregon district used seclusion room on disabled student who acted out in class

The Register-Guard reports that the grandfather/guardian of a disabled student has filed suit in Lane County Circuit Court against Springfield School District (SSD), alleging that staff at Riverbend Elementary School used the  “scream room” after the student acted out in class. The suit states that the student was found lying in a fetal position on a bare concrete floor inside the darkened room by a Court Appointed Special Advocate who had paid an unannounced visit to the school to check on her.

The suit alleges that the student suffers from multiple developmental disorders, and repeat visits to the school’s seclusion room caused her to become claustrophobic, fearful of the dark and suffer nightmares. The suit also claims that her treatment at school has exacerbated the student’s post-traumatic stress disorder and oppositional defiance disorder.

The suit alleges false imprisonment; intentional infliction of emotional distress; and negligence. In addition, it asserts that the girl had been sent to the seclusion room more than once before the day on which her court-­appointed advocate arrived at the  school.

The use of seclusion facilities to deal with misbehaving students in SSD schools has declined dramatically in recent years. SSD students were placed into seclusion 61 times during the 2011-12 school year, but the number of reported incidents in the 2012-13 school year fell to 13.

According to a SSD spokeswoman, seclusion was not used at all during the 2013-14 school year and just twice in the school year that ended in June. The numbers plunged during a period in which state laws changed in regard to schools’ use of seclusion as an option for out-of-control students.

The Oregon Legislature in 2011 passed new rules to curb the number of seclusions, including one that requires schools to notify parents the same day that their child is secluded or physically restrained. Another requirement mandates staff training to deal with misbehaving students, particularly those who are disabled.

Legislators in 2013 approved a bill that banned schools from using free-standing seclusion “cells.” Schools still may use seclusion rooms, as long as they are part of a building’s original design.

Source: The Register-Guard, 10/13/15, By Jack Moran

[Editor’s Note: In October 2015, Legal Clips summarized an article in the Virginian-Pilot reporting that the parents of a disabled student, identified as N.G., have filed suit in federal district court alleging that teachers and staff at Southeastern Elementary School regularly restrained the student in a special chair. According to the suit, N.G., who suffers from Down syndrome, autism and significant developmental delays, does not need postural or stabilizing support and so he doesn’t need the chair, which is called a Rifton chair, to help him sit. All Rifton chairs have a seat belt intended to prevent a student from falling or slipping out of the chair, according to the lawsuit.]


Federal district court in Alabama rules that school district’s SROs’ use of chemical spray and failure to promptly decontaminate violated students’ Fourth Amendment rights

J.W. v. Birmingham Bd. of Educ., No. 10-03314 (N.D.Ala. Sept. 30, 2015)

Abstract: A federal district court in Alabama has ruled that school resource officers (SRO) that used chemical spray on students who were accused of minor offenses and offered no resistance to being detained (seized), violated those students’ Fourth Amendment right to be free from excessive force. It also concluded that the SROs’ failure to decontaminate those students exposed to the spray violated their Fourth Amendment right to be free from excessive force. This summary is limited to a discussion of the district court’s holding regarding the Fourth Amendment claims of excessive force as to the initial spraying and decontamination.

Facts/Issues: The suit was brought by a number of students attending Birmingham City Public High Schools alleging that the SROs at those schools unnecessarily, and in violation of their constitutional rights, subjected them to chemical spray, Freeze+P (mace). The SROs are officers of the Birmingham Police Department, and are permitted to carry and use mace to address any criminal or breach of the peace violations.

The students claimed that the SROs maced them for minor school-based infractions, and then failed to follow BPD decontamination procedures after each incident, leaving the students instead to continue suffering from the effects of the mace for hours. One student claims she was maced because she could not stop crying after a fellow student harassed her with lewd comments because she was pregnant.

The suit also alleges that Carver High School Assistant Principal Anthony Moss tripped Plaintiff T.A.P. (which Moss denies) and then stepped on her back, while she was on the ground, to restrain her (which Moss admits) because she attempted to leave school, purportedly as instructed by Moss, without properly checking out first.

The BPD has no specific policy regarding the SROs’ use of mace, rather the SROs are subject to BPD’s general policy on Chemical Spray Subject Restraint and Non-Deadly Use of Forces. The Plaintiffs contend that this policy is constitutionally defective as related to using mace in the school setting. The suit seeks in part to force BPD Chief Roper to implement a policy specifically for SROs.

The parties disagree about whether the current policy allows SROs to subject students to abusive and excessive use of mace and whether the policy gives SROs unfettered discretion to use mace. In addition to the SROs and Moss as defendants, the lawsuit names as defendants the Birmingham Board of Education, the BPD, and BPD Chief A.C. Roper, in both his official and individual capacities.

The Plaintiffs raised claims for declaratory and injunctive relief against Chief Roper in his official capacity for the alleged unconstitutional mace policy, of excessive use of force in violation of the Fourth and Fourteenth Amendments against all Defendants in their individual capacities, of excessive corporal punishment in violation of the Fourteenth Amendment against Moss in his conduct towards T.A.P.

The district court ruled that the Fourth and Fourteenth Amendment claims made by several students for being subjected to chemical spray (mace) by school resource officers (SROs) for minor nonviolent rule infractions are for a jury to resolve. The court denied all but one of the SROs’ motions for summary judgment based on qualified immunity.

The court also ruled that a student had stated valid constitutional claims against a school administrator for use of excessive force and excessive corporal punishment, rejecting the administrator’s motions for summary judgment based on qualified immunity and immunity under the federal Coverdell Teacher Protection Act (CTPA).

The case then proceeded to trial.

Ruling/Rationale: After making several findings of fact in regard to the initial use of the chemical spray and the decontamination procedures utilized by the SROs, the district court concluded that: First, the SROs violated some students’ Fourth Amendment rights when they pepper sprayed them. Second, with the exception of two students, SROs violated the students’ Fourth Amendment rights when they failed to properly decontaminate them. It began its analysis by addressing whether the SROs were entitled to qualified immunity from liability based on the initial sprayings.

The district court found that the SROs cleared the first qualified immunity hurdle because there was no question that they were acting within the scope of their discretionary authority. It pointed out that in order to defeat the SROs’ assertion of qualified immunity, the students must show: “(1) the defendants violated a constitutional right, and (2) this right was clearly established at the time of the alleged violation.”

The district court reiterated that the students’ Fourth Amendment claim was based on the use of excessive force in the course of an arrest or “seizure.” It stated that the applicable standard of an objective reasonableness test sought to determine whether the nature/quality of intrusion on the students’ Fourth Amendment interests outweigh government interests at stake. The test itself looks at three factors: 1) the need for the application of force; 2) the relationship between the need and the amount of force used; and 3) the extent of the injury inflicted.

The district court noted that the need to use force is predicated on the severity of the crime, the danger to the officer, and the risk of flight. It emphasized that the guiding principle in excessive force cases is that the “‘gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force.”

The district court’s review of relevant caselaw concluded that “using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.” It acknowledged that searches and seizures in the school context are subject to the more relaxed standard enunciated in New Jersey v. T.L.O., 469 U.S. 325 (1985), which states that “a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

However, the district court rejected the defendants’ assertion that students are less deserving of protection from excessive force because the incidents occur in a school setting. It declined to accept “the proposition that children in public schools have a reduced expectation of being free from the infliction of excessive force by law enforcement officers.” Nevertheless, it said that its “position is largely academic because the outcome of the plaintiffs’ individual claims against the defendant SROs is the same whether the court applies T.L.O.’s reasonable-under-the-circumstances test or the factors described in Graham 47—which, the court notes, are fairly similar analyses.”

The district court found the use of chemical spray excessive force in violation of Fourth Amendment where there was a minor offense and the student offered no resistance to arrest. Having established a Fourth Amendment violation as to those students accused of minor offenses and offering no resistance to arrest, it then went on to determine whether the right violated was clearly established at the time of the incident.

The court concluded: “Because the facts here are almost identical to those in [Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)], it should have been obvious to Officers Smith and Benson that their actions constituted excessive force. Consequently, they are not entitled to qualified immunity.” It also pointed out that the SROs “behavior was so far beyond the hazy border between excessive and acceptable force that every objectively reasonable officer had to know he was violating the Constitution even without caselaw on point.”

Turning to the failure to decontaminate claim, the district court determined that its temporal proximity to the seizure made it a Fourth Amendment claim. Concluding that, absent extenuating circumstances, failing to adequately decontaminate an individual who was exposed to chemical spray constitutes excessive force in violation of the Fourth Amendment, the court then turned to the question of whether the defendants adequately decontaminated the plaintiffs. It concluded: “In sum, except as to J.W. and P.S., the court finds that the defendant SRO’s inflicted excessive force on the plaintiffs when they failed to adequately decontaminate them after spraying them with Freeze +P.”

J.W. v. Birmingham Bd. of Educ., No. 10-03314 (N.D.Ala. Sept. 30, 2015)

[Editor’s Note: The Southern Poverty Law Center (SPLC), which represented the students, issued a press release applauding the court’s ruling. In its press release, Ebony Howard, the SPLC’s lead attorney in the case, said, “This is great a victory for students and their families in Birmingham, and it sends a strong message to school officials across the country that it’s time to stop treating schoolchildren like they’re criminals. The judge recognized that this is a disturbing case and that the current system is flawed.” 

In October 2012, Legal Clips summarized a previous ruling in J.W., which held that the Fourth and Fourteenth Amendment claims made by several students for being subjected to chemical spray (mace) by school resource officers (SROs) for minor nonviolent rules infractions are for a jury to resolve. The court denied all but one of the SROs’ motions for summary judgment based on qualified immunity.]


Pennsylvania district’s lawsuit alleges that former attorney and his former firm overbilled district for hundreds of thousands of dollars

Coatesville Area School District (CASD) has refiled a suit in state court against former CASD attorney James Ellison and his former law firm Rhoads & Sinon accusing them of seven counts of breach of contract, fraud, and breach of fiduciary duty, says the Daily Local News. The current suit was filed by the Levin Legal Group, CASD’s new law firm.

The previous suit was dismissed by the court after it concluded the suit was “confusing” and “improperly drafted.” According to the court, the previous legal complaint was “a confusing compilation of some 217 separate allegations and 12 exhibits … not directed to any particular count (and seeming) to contain a litany of broad-bush opinions critical of decisions made by the previous school board.”

The new complaint is slimmed down, less than 20 pages long, and contains only seven counts of accusations. But despite the new shortened version, the suit still drew objections from the attorney representing the Rhoads & Sinon firm.

The complaint stemmed, in part, from an investigation into former school district Superintendent Richard Como and former Director of Athletics Jim Donato, who were at the center of a racially-charged texting scandal in 2013, and the actions of Ellison surrounding those and other matters. The two ended their employment with the district in August 2013, and have been charged criminally for various counts of theft and fraud. They are awaiting trial in Common Pleas Court.

The new complaint states that Ellison was hired as the district solicitor in April 2002, when he was an attorney at Rhoads & Sinon. The firm represented the district as its general solicitor until Dec. 21, 2013, but continued to work on individual matters until Nov. 25, 2014. Ellison worked for the firm from 1997 until December 2013, and then started his own firm, Susquehanna Legal Group, and worked with the district until he was terminated in October 2014.

During the length of the representation, the law firm and Ellison billed the district in excess of $7.7 million, the suit claims. The first allegation in the complaint centers on the amount of time the district was billed for Ellison’s travel time between Harrisburg and Coatesville. Although the proposal that Rhoads & Sinon made to the district for representation stated that the district would not be charged for travel time for board meetings or other matters, the complaint alleges that Ellison regularly billed the district $160 an hour for travel.

After the school board instructed Ellison to stop billing for travel time, the suit alleges that he began billing the district for “preparation time,” even though it states that a competent attorney would not have needed to prepare for a board meeting, or if they did would not have needed the same three hours each time. The deceptive bills were submitted 12 times between 2011 and 2013, according to the suit. The three hours of preparation time, it notes, was the same amount of travel time Ellison listed on his bills at “no charge.” This practice is alleged to be fraud in the second count. “In instances where travel time was disguised as some other form of legal work,” the suit states, the district “mistakenly paid the defendant’s invoices.”

The suit also alleges that the law firm overbilled the district more than the $160 per hour figure quoted in its contract proposal, and that Ellison improperly took cell phones, smart phones and an iPad from the district and had it pay for his data plan, when he had no authority to do so. Even though it acknowledged that Ellison had been given permission to do so by unnamed administrators, the suit maintains that he should have known that solicitors had no right to use district-owned property.

Source: Daily Local News, 10/5/15, By Michael Rellahan

[Editor’s Note: In October 2015, Legal Clips summarized a story from NBC 7 San Diego reporting that San Ysidro School District’s (SYSD) board voted in a closed session to settle a malpractice lawsuit the district lodged against their former attorneys, the “Stuz Artiano Shinoff & Holtz” law firm. The law firm has reportedly agreed to pay SYSD $1.8 million. The school district’s suit accused the firm of failing to report settlement offers to district leaders.]

Football booster’s suit claims Pennsylvania district violated his civil rights when it banned him from district facilities after he was accused of recruiting players from another district

The Citizens’ Voice reports that Ed Warkevicz, who allegedly helped recruit Berwick Area High School football players, has filed a federal civil rights lawsuit against the Berwick Area School District (BASD) for banning him from school district facilities. BASD’s board imposed the ban in June after allegations came to light that Warkevicz was involved in recruiting two brothers to play football for Berwick Area High School (BAHS) and to transfer from Nanticoke Area High School.

The Pennsylvania Interscholastic Athletic Association has ruled that the Beckhorn brothers are ineligible to play high school football in 2015.  During a PIAA District 2 athletic committee hearing, Nanticoke Area football coach Ron Bruza testified he was told by Jules Beckhorn that Warkevicz was the alleged Berwick “coach” referenced in a Facebook post prior to the two brothers transferring to Berwick Area in April.

According to BASD officials, Warkevicz had no official affiliation or authority in regards to the BAHS football program. BAHS football coach George Curry insisted he “never told anybody to recruit.”

The lawsuit claims the school district has deprived Warkevicz of his Constitutional rights of assembly, travel, speech and association. He is seeking injunctive relief to end the ban and compensatory damages of more than $75,000. Warkevicz claims the ban has cast him in a “notoriously negative light” and has damaged his insurance business.

Source: The Citizens’ Voice, 10/8/15, By Michael P. Buffer

[Editor’s Note: In March 2012, Legal Clips summarized a decision by the U.S. Court of Appeals for the Seventh Circuit in Hannemann v.  Southern Door Cnty. Sch. Dist. holding  that a school district did not violate a former student’s procedural due process by indefinitely banning him from school property. The panel concluded that the former student, as member of the public, did not have a protected liberty interest in accessing school grounds and, therefore, the school district had no duty to provide him with due process related to imposing the ban. The panel found that the ban did not violate a protected liberty interest based on damage to his “good name, reputation, honor, or integrity,” plus loss of a previously held right under state law. It also found that the ban did not interfere with his right to intrastate travel, violating a liberty interest arising out of the Fourteenth Amendment’s Due Process Clause. Lastly, it noted that while qualified immunity does not apply to an action for injunctive relief, all defendants, including the individual ones, prevailed on the merits of the suit.]

Civil rights advocates file suit against Arkansas to reverse state takeover of Little Rock School District

A team of civil rights attorneys has filed a federal lawsuit to reverse the January state takeover of the Little Rock School District and stop the development of both traditional and charter schools in west Little Rock, says Arkansas Online. The suit, filed against the state and Little Rock School District leaders on behalf of a group of parents, students and two displaced Little Rock School Board members, also seeks an end to “unconstitutional policies and practices” in the Little Rock district in regard to the condition of school facilities, student discipline, distribution of student computers, configuration of high school attendance zones, faculty-member and student assignments to schools, the operation of the Hamilton Learning Academy, and other facets of the district’s operations.

The Little Rock district was declared unitary, or desegregated, by a federal district judge in 2007, and that ruling was affirmed by the 8th U.S. Circuit Court of Appeals in 2009. The suit states: “This is an action to secure a remedy for the subjecting of black students enrolled in the Little Rock School District to intentional racial discrimination, in the period after courts held that the LRSD had achieved unitary status.”

According to the legal complaint:

This action also seeks a remedy for the state’s takeover of the LRSD and the ouster of the democratically elected LRSD [School Board]. Plaintiffs allege that these actions violated the United States Constitution (denial of freedom of speech, prohibited racial discrimination, conspiracy to violate rights, badge of slavery, and denial of due process of law).

The state Education Board dismissed the seven-member elected School Board and placed the district’s superintendent under the direction of the Arkansas education commissioner. The takeover was the result of six of the district’s 48 schools being classified by the state as academically distressed because of chronically low test scores on state math and literacy exams. Two of the plaintiffs in the suit are displaced School Board members Joy Springer and Jim Ross, both elected in contested elections in September 2014, just before the state takeover.

The lawsuit describes some details of each student’s schooling and ways in which they have been treated unequally compared with white students in the Little Rock district. The suit says that the minor plaintiffs are seeking relief from the denial of education and unequal treatment.

The defendants in the lawsuit include Arkansas Education Commissioner Johnny Key and Little Rock Superintendent Baker Kurrus, who was appointed to that job by Key with authorization from the state Education Board. The remaining defendants are the state Education Board members Toyce Newton, Jay Barth, Joe Black, Charisse Dean, Mireya Reith, Vicki Saviers, R. Brett Williamson and Diane Zook.

The lawsuit criticizes the state-approved establishment of taxpayer-supported, but independently operated charter schools in the district. It particularly criticizes the eSTEM Public Charter Schools Inc., which the suit said has diverted some $15 million away from the Little Rock district in the last school year. Last year’s opening of Quest Middle School in west Little Rock is also cited as a problem in the lawsuit.

The suit also recaps the lengthy history of school-improvement initiatives and events in the school district, leading to the state Education Board’s takeover of the Little Rock district last winter. Those actions included plaintiffs Springer and Ross advocating for equal educational opportunities for students and against the district’s “manner favoring white persons and disfavoring black persons.”

The suit contends that the state did not properly monitor the Little Rock district’s use of federal School Improvement Grants to ensure that teachers were being rewarded and evaluated in part based on student achievement. Additionally, the suit argues that the state routinely failed to distribute federal Title I money to eligible schools until late in the school year, which adversely affected the ability of the schools to address the educational needs of large numbers of black students.

According to the suit, the state takeover of the Little Rock district and the subsequent appointment of Kurrus as superintendent in May “replaced a majority African-American LRSD School Board with an all white governance structure.” The lawsuit contends that the state’s actions were racially motivated and not credible. The lawsuit argues that there were “powerful interest groups and persons in the community who have favored the interests of white students and the white community who were influencing and cooperating” with state Education Board members in the district takeover. “Their goal was to continue the ability to operate the system for the primary benefit of the white students and white community,” the suit alleges.

Source: Arkansas Online, 10/8/15, By Cynthia Howell

[Editor’s Note: In August 2015, Legal Clips summarized an article in The Cleveland Plain Dealer reporting that Youngstown School District (YSD) has filed suit to block a state takeover plan enacted this past June. The school district is being joined in its suit by the Ohio Education Association (OEA), the Youngstown Education Association, and the American Federation of State, County, and Municipal Employees.]


Florida district settles suit with families of high school students hypnotized by principal

According to an Associated Press (AP) report in seattle pi, Sarasota County School District (SCSD) has agreed to pay the families of three students ,who died after being hypnotized their high school principal, $200,000 each. The $600,000 payout brings to a close a case that began when North Point High School Principal George Kenney admitted he had hypnotized Wesley McKinley a day before the student committed suicide in April of 2011.

A subsequent investigation revealed Kenney hypnotized as many as 75 students, staff members and others from 2006 until McKinley’s death. Among those who were hypnotized were Brittany Palumbo and Marcus Freeman. Palumbo killed herself in 2011. Freeman was in a fatal car crash after apparently self-hypnotizing, a technique Kenney taught the teenager, also in 2011.

School Board attorney Art Hardy said after the board approved the agreement on a 4-0 vote that members were “just happy to put this behind them.” Attorney Damian Mallard, who represents the families, said the parents did not sue for money but to hold the school district accountable and to ensure something similar does not happen again.

Kenney was placed on administrative leave in May 2011; he resigned in June 2012. He was charged with two misdemeanors in 2012, including practicing therapeutic hypnosis without a license. He entered a plea of no contest as part of a deal that saw him serve one year of probation, during which he was not allowed to practice unlicensed hypnosis. Kenney gave up his teaching license in 2013 under pressure from the Florida Department of Education and was permanently barred from reapplying.

The families could not sue Kenney himself because school district employees are considered an extension of the School Board under the law. The only entity families could sue was the school district. According to Mallard, Florida law caps damages at $200,000 unless the state enacts special legislation waving the cap. “They’re not happy about” Kenney’s lack of punishment, Mallard said of the students’ families. “The thing that is the most disappointing to them is he never apologized, never admitted wrongdoing and is now living comfortably in retirement in North Carolina with his pension.”

Source: seattle pi, 10/7/15, By AP

[Editor’s Note: Principals exert a great deal of influence as their school’s leaders. In August 2015, Legal Clips summarized an article in the North Platte Bulletin reporting that a Nebraska school settled a suit over teachers being told by the principal to contact parents before reporting suspected child abuse.]


Transgender student’s request to use boys’ restroom and locker room at Nevada school sparks statewide debate

An Associated Press article in the ctpost reports that a transgender student’s request to use the boys’ bathroom and locker room at his school in Nevada has sparked a new round of debate among legislators over the issue. The student asked to use the male designed facilities at his middle school in Elko County. The school board denied his request, which led the American Civil Liberties Union of Nevada(ACLU-NV) to threaten legal action.

Three state lawmakers have weighed in on the issue after criticizing a new anti-bullying law that broadly protects transgender students and others. They suggested consideration of a bill in the next session that leaves the issue of transgender bathroom use to school districts or revisiting a failed measure that would require students to use bathrooms corresponding to their biological sex.

In Elko County, the school district’s year-old policy banning discrimination, harassment and bullying of transgender students states that their rights to restrooms must be balanced on a case-by-case basis with the privacy rights of the other students. The school board president cited the policy and said lawyers were consulted before the trustees voted unanimously against the request by the 13-year-old. The decision was made after a two-hour discussion in a meeting room packed with people mostly opposed to allowing bathroom choice among transgender students.

The Elko case could also be the catalyst for revisiting another related measure in the last session. A bill requiring students to use bathrooms corresponding to their biological sex didn’t pass, making Nevada one of eight states to consider and reject such a policy. Calling it a new political hot potato in the state, state Assemblyman Ira Hansen said there is support for bringing the bill back or taking the measure to voters as a ballot initiative.

For now, the middle school student is expected to continue to use the unisex restrooms available in the nurse’s office, counselor’s office and the special education department. The ACLU-NV has threatened legal action, claiming the school board action violates state and federal anti-discrimination laws.

“To provide that student access is the responsibility of the school board — not to find ways to side with the community because there might be a majority that either doesn’t understand or doesn’t accept the gender identity that the student is presenting themselves in,” said Tod Story ACLU-NV’s executive director.

Source:  ctpost, 10/5/15, By Sally Ho (AP)

[Editor’s Note: In September 2015, Legal Clips summarized an opinion by a Virginia federal district court in G.G. v. Gloucester Cnty. Sch. Bd. regarding dismissal of a student’s Title IX claim, on July 27, 2015, and the denial of the student’s motion for a preliminary injunction, which was filed for the purpose of allowing the student to use the bathroom that corresponds with his sexual identity pending the court’s ruling on his Equal Protection claim.]

Kansas appellate court rules that state university lacks the authority under the student code and its sexual harassment policy to expel student for off-campus sexually harassing tweets

Yeasin v. University of Kansas, No. 113,098 (Kan. Ct. App. Sept. 25, 2015)

Abstract: The Kansas Court of Appeals has ruled that a state university lacked the authority to expel a student for a series of sexually harassing off-campus tweets because pursuant to the student code of conduct the university can discipline students only for conduct that occurs on campus or at university sponsored or supervised events. The appellate court agreed with the trial level (district) court in holding that the university had failed to present any evidence that the conduct forming the basis for  the alleged student code violation occurred on campus or at a university sponsored event.

The appellate court rejected the university’s attempt to extend the reach of the student code to off-campus conduct based on the obligations imposed on the university under Title IX of the federal Civil Rights Act. It found that federal agency guidance on the subject of student-on-student sexual harassment “does not direct the school to take action off-campus.” Instead, it “… clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment,” which leads to the conclusion “that the only environment the University can control is on campus or at University sponsored or supervised events.”


Navid Yeasin was a student at the University of Kansas.  He had a girfriend, identified as W, who he met in the fall semester of 2012. They dated from November 2012 through May 2013.  Their relationship was turbulent.

In late June 2013, Yeasin drove W. to see her therapist. While she was at her therapy session, Yeasin stayed in the car and read text and Facebook messages on W.’s cell phone.  When W. returned, Yeasin angrily confronted her about some messages she had sent to another man. The argument continued as they drove around Olathe. W. told Yeasin she did not want to spend the day with him and asked him to take her back to her car. Yeasin became angry again but agreed.

Once at W.’s car, Yeasin took W.’s phone, locked the car doors, and then drove away with W. Yeasin told W. that he was going to make her pay for what she had done. W. repeatedly asked Yeasin to let her out of the car, and he refused. Yeasin also refused to return W.’s phone and physically prevented her from taking her phone back. When W. told Yeasin that she was scared and to take her home, Yeasin responded, “‘[N]o, not until you pay the consequences for what you’ve done and make sure you’ll never do this again.'” Sometime between 5 p.m. and 6 p.m., Yeasin took W. back to the parking lot where her car was parked. W. left when a friend picked her up in the parking lot at around 10 p.m. Yeasin called W. around at 1 a.m. threatening her, and at one point told her he “would make it so that [W.] wouldn’t be welcome at any of the universities in Kansas.”

W. reported this confrontation to the police. The State charged Yeasin with criminal restraint, battery, and criminal deprivation of property. Yeasin subsequently entered into a diversion agreement with the State on the criminal charges in August 2013. In a companion case, the Johnson County District Court issued a final order of protection from abuse directing Yeasin to have no contact with W. for 1 year

Back on campus in August 2013, W. filed a complaint with the Office of Institutional Opportunity and Access. Generally known by the acronym IOA, it is the office responsible for investigating complaints of discrimination and harassment at the University.

On August 8, 2013, an IOA investigator, Jennifer Brooks, interviewed W. regarding her complaint. The IOA opened an investigation. That same day, Yeasin tweeted, “On the brightside you won’t have mutated kids. #goodriddens.” About a week later, IOA Investigator Steve Steinhilber interviewed Yeasin regarding the complaint. Steinhilber advised Yeasin of his rights and responsibilities during the investigation.

After considering the Johnson County District Court’s final protection from abuse order, the IOA decided to issue a no-contact order because Yeasin had engaged in abusive and threatening behavior that made W. afraid to be on campus and continued to post tweets regarding W., which were creating further distress and fear. Specifically, the no-contact order warned Yeasin of possible expulsion.

Navid Yeasin  continued to post sexually harassing tweets after the no-contact order had  been imposed by the University

IOA  subsequently completed its investigation and issued a report to Tammara Durham, Vice Provost of Student Affairs. The report recommended that disciplinary action should be taken against Yeasin. The IOA report concluded that “while some of the conduct in this case occurred off campus this past summer,” the preponderance of the evidence nevertheless showed that Yeasin’s conduct had affected the on-campus environment for W., thus violating the university’s sexual harassment policy.

After receiving the IOA report, the Director of Student Conduct & Community Standards, Nicholas Kehrwald, set a formal hearing and gave notice to Yeasin. Pointing to the IOA’s findings, Kehrwald repeated the allegations against Yeasin and specified that Yeasin’s conduct violated Article 22.A.1 of the Student Code, the University’s sexual harassment policy, and the no-contact order. Kehrwald complained that Yeasin’s conduct off campus was having an effect on campus:

At the student conduct hearing, the hearing panel told Yeasin that the charges against him were for violating Article 22.A.1 of the Student Code and the University’s sexual harassment policy. The hearing panel then reviewed the written documents from the case file and then heard from W., IOA Executive Director McQueeney, IOA Investigators Steinhilber and Brooks, and Yeasin.

The hearing panel found that Yeasin more likely than not had violated both Article 22.A.1 and the University’s sexual harassment policy. In the panel’s view, Yeasin’s behavior threatened the physical health, welfare, and safety of W. Specifically, the panel focused on Yeasin’s off-campus actions: “Yeasin physically restrained [W.] in his car, yelled at her for hours and demonstrated hostile, controlling and unstable behavior, making [W.] afraid for her safety. [W.] repeatedly expressed during the time she was restrained in the car, ‘I am scared. I am scared for my safety. [. . .] I do not feel safe.'”

In concluding that Yeasin violated the University’s sexual harassment policy, the hearing panel found “the behavior of Yeasin is unwelcome, based upon sex or sex stereotypes, and are so severe, pervasive and objectively offensive that they have the purpose or effect of substantially interfering with [W.’s] academic performance or participation in the University’s programs and activities.”

After reviewing the complaint, the evidence presented at the formal hearing, and the hearing panel’s sanction recommendations, Vice Provost Durham agreed with the hearing panel. The University expelled Yeasin and banned him from campus for violating Article 22.A.1 and the University’s sexual harassment policy.

Yeasin appealed his expulsion to the University Judicial Board. The Board denied him any relief. With this denial, Yeasin had exhausted his administrative remedies. He then sought judicial review of the University’s actions.

The district court found that the Student Code, as written, did not apply to off-campus conduct. Specifically, Article 22 of the Student Code stated that the misconduct in question must occur on campus or at University sponsored events. The language relied upon by the University from Article 20—”or as otherwise required by federal, state or local law”—was ambiguous as to providing notice of what conduct was subject to disciplinary action.

The Court found that Article 18, in contrast, provided specific notice of when the University might initiate proceedings for conduct violating federal, state, or local law and that such conduct must occur on campus. Next, given its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University’s decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin’s conduct occurred on campus or at a university sponsored event.

The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for the fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University’s request.

Ruling/Rationale: The Kansas intermediate appellate court affirmed the district court’s decision and lifted the stay order. It began its analysis pointing out that the university’s student code and sexual harassment policy were controlling with regard to the issues raised by the case. It reviewed the pertinent provisions of the student code, i.e., Article 2.A, Article 2.C, Article 18, Article 20 and Article 22. The court also reiterated the university’s sexual harassment policy.

Stressing that the university took prompt, decisive action to investigate and resolve the conflict by expulsion, the appellate court, nonetheless, concluded that the university acted improperly because “the Student Code did not give the University authority to act when the misconduct occurred somewhere other than its campus or at University sponsored or supervised events.” It pointed out that the university had consistently relied on Article 22 of the student code throughout the disciplinary process until reaching the appellate court.

According to the appellate court, the university was now attempting to extract a discreet phrase from Article 20 of the code to argue that the university did have the authority to expel Yeasin for his 2013 summer break conduct. Specifically, it found that the university was contending “that the district court should have interpreted the phrase ‘or as otherwise required by federal, state or local law’ found in Article 20 to mean that the University’s jurisdiction to discipline a student for violating Article 22.A. extended to a student’s off-campus conduct.” It pointed to the lynchpin of the university’s argument that its “interpretation of Article 20 is consistent with the obligations imposed on it under Title IX.”

Citing the U.S. Department of Education Office for Civil Rights April 2011 “Dear Colleague Letter” (DCL), the university pointed out that the DCL “specifically warned that if the recipient to Title IX funds relies on student disciplinary procedures for Title IX compliance, it should have its Title IX coordinator review the recipient’s disciplinary procedures to ensure that the procedures comply with the requirements of Title IX and then the recipient should ‘implement changes as needed.’”

The appellate court conceded that the university’s fear of OCR reprimands resulting from Title IX violations, including the loss of federal funding, had some merit and that one of the examples in the DCL dealt with the effect of off-campus conduct on the campus environment. Nevertheless, it noted the DCL “does not direct the school to take action off-campus.” It stated: “It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events.”

According to the appellate court, “The University believes that to comply with Title IX requirements it must, and did, extend its jurisdiction to disciplining its students for off-campus misconduct.” It found that to resolve this issue it was not necessary to “address whether Title IX requires a recipient to Title IX funds to discipline off-campus conduct.” The court said, “Instead, the extent that a Title IX recipient believes it exerts jurisdiction over student conduct to comply with its Title IX obligations must be reflected in the language chosen for its student disciplinary procedures or separate procedures to resolve such complaints.”

The appellate court concluded that in order to find “that the University’s jurisdiction to discipline students extended to off-campus misconduct, we must find that power clearly arises from the express framework of the Student Code and not because we simply accept that the authority should be there based on the University’s own interpretation of Title IX.” After reviewing the language in Article 18, Article 20 and Article 22 of the student code, it found that “the University cannot reconcile its interpretation of the language in Article 20 with the language in Article 18 or Article 22.”

Noting that “a student’s conduct in violation of the University’s published sexual harassment policy falls under Article 22,” the appellate court pointed out that Article 22 expressly limits the university to taking disciplinary action, including expulsion, for nonacademic student misconduct that occurs on campus or at a university sponsored event. It stated:

Because Article 18 and Article 22 both concern alleged violations of student conduct the University seeks to discipline, and they contain more specific language directing that the University’s authority only extends to on-campus or at University sponsored events than the general provision in Article 20 that gives no indication as to where the misconduct must occur, the more specific statutes control.

Having concluded that the district court ruled correctly, the appellate court declined to address “the issues of whether Title IX permits the University to extend its jurisdiction to discipline student conduct occurring off campus and whether Yeasin’s tweets were protected speech under the First Amendment to the United States Constitution.”

Yeasin v. University of Kansas, No. 113,098 (Kan. Ct. App. Sept. 25, 2015)

       [Editor’s Note: In the September 24, 2015 online edition of Politico, Caitlin Emma reported that Sen. Lamar Alexander (R-TN) grilled U.S. Department of Education (ED) Deputy Assistant Secretary Amy McIntosh during a U.S. Senate Committee on Homeland Security & Governmental Affairs’ Subcommittee on Regulatory Affairs and Federal Management hearing about claims made by ED’s Office for Civil Rights Assistant Secretary Catherine Lhamon that colleges are required to follow federal Title IX guidance during a Senate Committee on Health, Education, Labor and Pensions (HELP) hearing in June 2014.  “As she knows and as I know, Title IX is the binding law that applies,” admitted Amy McIntosh, the department’s deputy assistant secretary delegated duties of assistant secretary. “Guidance under Title IX is not binding guidance — it helps the many people who are subject to Title IX understand what they need to do to comply with the law.”

Pressing the point that there is no federal bullying law, Alexander said, “It’s not up to the Office of [sic] Civil Rights to make a law when the federal law doesn’t say anything about bullying and the United States Congress is still debating it.” McIntosh responded that ED did not make any new bullying law or requirements. “Well, [Lhamon]  says her edicts are binding and she issued a guidance on bullying and to me that’s not appropriate,” Alexander retorted.

In K-12 off-campus online speech cases, federal courts have relied on the Tinker as controlling precedent. For example, in May 2015 Legal Clips summarized a decision by  a federal district court in Oregon in Burge v. Colton Sch. Dist. holding that a school district violated a student’s First Amendment free speech rights by disciplining him for off-campus online speech. The court found that the school district was not justified in suspending the student because his online comments did not cause substantial interference to school operations as required under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).] 




U.S. Supreme Court declines to review Second Circuit’s decision upholding New York state’s mandatory school vaccination law

The Press and Sun Bulletin reports that the U.S. Supreme Court declined to review the decision by a U.S. Court of Appeals for the Second Circuit upholding a New York state law that allows schools to send a non-vaccinated child home when another student is diagnosed with a vaccine-preventable disease. New York State allows parents of school-age children to obtain a medical or religious exemption from having their children vaccinated. But it also allows districts to send those students home for up to three weeks during outbreaks of measles, mumps, chickenpox or another vaccine-preventable disease.

The Second Circuit upheld the law, which led the families affected by the law to petition the Supreme Court to review and overturn the Second Circuit’s ruling. New York State Attorney General Eric Schneiderman issued a statement applauding the Supreme Court’s decision not to hear the case.

Attorney Patricia Finn, who represented the three New York City families, said that non-vaccinated students were unjustifiably missing school for prolonged periods. She unsuccessfully argued that the non-vaccinated children were being singled out unfairly, noting that there’s no penalty for newly vaccinated children, who can be contagious for up to 28 days. According to Finn, most states provide religious and medical exemptions from their vaccination mandates, while California, Mississippi and West Virginia have only a medical exemption.

Source: The Press and Sun Bulletin, 10/5/15, By Brian J. Tumulty

[Editor’s Note: In January 2015, Legal Clips summarized the Second Circuit’s decision in  Phillips v. City of New York holding that a New York State law requiring that all children be vaccinated in order to attend public school is constitutional. It also concluded that a state regulation permitting state officials to temporarily exclude students, who are exempted from the vaccination requirement, from school during an outbreak of a vaccine‐preventable disease is constitutional. The panel upheld the lower court’s decision that both the law and regulation passed federal constitutional muster.]

DOJ enters legal fray over Kentucky sheriff’s department handcuffing of disabled students at school

According to an Associated Press (AP) report on WLWT 5, the U.S. Department of Justice (DOJ) has filed a “Statement of Interest” in a suit brought by the  American Civil Liberties Union (ACLU) on behalf of two disabled students handcuffed by a school resource officer (SRO) at a school  in the Covington Independent Public Schools District (CIPSD). The suit names SRO Deputy Sheriff Kevin Sumner and the Kenton County Sheriff’s Department as defendants.

CIPSD  Superintendent Alvin Garrison, defending the SRO’s actions, said Sumner complied with the district’s policies, “which are designed to ensure that students do not injure themselves or others.” However, DOJ’s statement, which indicates that the American Disabilities Act (ADA) applies to SROs, argues:

Because the ADA is applicable, the Court should evaluate whether, through Defendant Sumner’s actions, the Defendant Kenton County Sheriff’s Office (“Sheriff’s Office”) violated the ADA’s requirement that government entities reasonably modify procedures, practices, and policies unless doing so would result in a fundamental alteration.

The DOJ statement contends, “School policies should dissuade the ‘school-to-prison pipeline’ created by criminalizing misbehavior.” It also says, “The school-to-prison pipeline refers to the use of harsh and exclusionary discipline practices that ‘push students out of school and into the justice system.’ In working to dismantle the pipeline, the United States has addressed discrimination in education, law enforcement, and juvenile justice.”

DOJ emphasizes that it is not taking sides on the merits of the litigation, but rather seeking to assist in assessing the students’ claims. To that point, the statement says:

SROs, like all police officers, must respect the constitutional and statutory rights of the citizens they serve. This is particularly critical in the school context, where the impact of a police interaction on a child can last a lifetime. In considering the Plaintiffs’ Fourth Amendment claims, the Court must consider whether an objectively reasonable SRO would have handcuffed elementary school students in school under the circumstances presented here, after the children exhibited misbehavior arising out of their disabilities.

Source: WLWT 5, 10/5/15, By AP

[Editor’s Note: DOJ’s Statement of Interest states:

Specifically, the United States seeks to affirm the factors the Court must consider in evaluating the objective reasonableness of Defendant Sumner’s seizures of both children. Further, the United States seeks to confirm that statutory and regulatory authority well establishes that the ADA applies to police interactions, and to correct misstatements about the ADA in Defendants’ brief.

In August 2015, Legal Clips summarized an article in The Washington Post reporting that the ACLU, along with the Children’s Law Center and the law firm of Dinsmore & Shohl, have filed suit in federal court against the Kenton County Sheriff’s Office. The suit alleges a sheriff’s deputy shackled two children with disabilities as punishment for their misbehavior at school, an allegedly illegal use of force that traumatized the children.]


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