Parents stated valid cause of action for damages under § 504 of the Rehabilitation Act for denying their disabled children meaningful access to a public education

A U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP) three-judge panel has ruled that the parents of two children with autism stated a valid claim for damages under§ 504 of the Rehabilitation Act against the Hawaii Department of Education (HDE) for denying their children meaningful access to the benefit of a public education. The panel concluded that the parents’ allegations that HDE failed to provide the children with reasonable accommodations for their disabilities through autism-specific special education services, and failed to design the children’s Individualized Education Programs (IEP) to meet their needs as adequately as the needs of non-disabled students were met, were sufficient to raise a question of material fact as to whether HDE was deliberately indifferent in violation of § 504.

The parents brought an administrative action against HDE pursuant to the Individuals with Disabilities Education Act (IDEA) and § 504. The hearing officer (HO) found that HDE had failed to provide the children with a free appropriate public education (FAPE) as required by IDEA and that the children’s IEPs were inadequate. The HO ordered HDE to remedy the violations. The parents subsequently brought suit in federal district court against HDE seeking damages for violations of § 504. The district court dismissed the suit on the grounds that there was no private right of action to enforce a FAPE under § 504. It also concluded that the § 504 claim failed because the parents failed to "present any evidence that they were intentionally discriminated against solely by reason of their disability.”

On appeal, a different Ninth Circuit panel held "although there is a private right of action under Rehabilitation Act § 504, simply establishing a violation of the right to a FAPE under IDEA is not sufficient to prevail in a § 504 claim for damages." Rather, a plaintiff must show "that an organization that receives federal funds violated § 504 intentionally or with deliberate indifference." That panel remanded the case to district court. Based on this clarified standard, the parents amended their complaint to allege that HDE acted with deliberate indifference in violation of  § 504. The district court granted HDE’s motion for summary judgment on ground had the parents had failed to raise an issue of genuine fact as to whether HDE was deliberately indifferent.

On appeal for the second time, the Ninth Circuit panel reversed the lower court’s decision and remanded the case to it. It stated that whether HDE was liable for damages under § 504 depended on whether HDE failed to provide the children with a reasonable accommodation that they needed to enjoy meaningful access to the benefits of a public education, and did so with deliberate indifference. The parents had raised a question of material fact regarding reasonable accommodation, the panel found, because: "(1) the girls’ disability made it impossible for them to enjoy meaningful access to the benefits of a public education without autism-specific services; (2) Hawaii DOE was on notice that the girls needed those services, but failed to provide them; and (3) those services were available as a reasonable accommodation."  The panel also determined that the parents’ allegations were sufficient to raise a question of genuine fact on the issue of deliberate indifference because the parents’ allegation showed that HDE was aware over a five year period, 1994-99, that the children needed autism-specific services in order to access the benefits of a public education and HDE failed to adequately investigate whether such accommodations were available. 

The panel rejected HDE’s argument that the parents could only prove HDE failed to provide meaningful access by by showing a violation of  § 504’s implementing regulation 34 C.F.R. § 104.33, which requires public schools to design programs for students with disabilities to meet their “individual educational needs . . . as adequately as the needs of non[-disabled] persons are met.” While acknowledging the regulation identified a specific requirement for compliance, it found that the regulation did not "negate the broader rule that a federally funded entity violates the Rehabilitation Act § 504 if it denies a qualified disabled person the reasonable accommodation that the person needs in order to enjoy meaningful access to a program or service."  It likewise rejected HDE arguments that the parents had not raised a question of genuine fact on the issue of deliberate indifference because the parents had relied on nothing more than HDE’s failure to provide a FAPE under IDEA and HDE was merely negligent, not deliberately indifferent, to the children’s federally protected rights. The panel, instead, found that the parents had alleged more than the IDEA violations and the difference of opinion between HDE and the parents over whether HDE’s actions constituted mere negligence or deliberate indifference highlighted that there was a question of genuine fact.

Mark H. v. Hamamoto, No. 09-15754 (9th Cir. Aug. 26, 2010)

[Editor's Note: Note that Hawaii is the only state with a single school district.  The state department of education, therefore, functions as the local educational agency for the entire state.  A summary of the previous Ninth Circuit opinion that clarified that a plaintiff could establish a § 504 violation by showing intentional discrimination or deliberate indifference is available at the link below.]

NSBA School Law pages on Mark H. v. Lemahieu

Sua Sponte: Will Texas schools receive federal education jobs money?

After much work by education advocates, including NSBA’s Advocacy team, Congress passed and the President signed the Education Jobs Fund bill on August 10, 2010, providing $10 billion to save education jobs.  Secretary Duncan held conference calls with press and education representatives shortly after the bill’s passage to explain how the Department of Education would work with states to get the money to school districts in time for the start of the 2010-2011 school year. 

The law contains a provision aimed specifically at Texas.  Responding to complaints that previous federal stimulus dollars have been used to replace state aid, U.S. Representative from Austin Lloyd Doggett included a provision in the  bill that requires the Governor of Texas to make an assurance in his application for the federal money that it will not be used to supplant state aid to schools, but instead will be used to supplement  current levels of state aid.  In fact, all governors applying for this federal funding must assure the Department of Education (ED) that state aid will remain at the current percentage of state appropriations for one year (the "maintenance of effort, or "MOE" requirement).  Texas, however, must make that assurance through 2013.   Texas Governor Rick Perry, with the Attorney General, contend that the state constitution prevents him from making such an assurance because the governor cannot dictate state funding nor bind a future Legislature to a certain level of spending. 

The Texas Association of School Boards has noted the importance of the extra federal funding to Texas school boards.  Texas’ share of the federal funds is $830 million, which is needed to to avoid increases in tax rates, to prevent  laying off teachers, and to hire qualified teachers to replace substitutes.  If the Governor does not apply for the funds by September 9, any claim to the funds is forfeited or, at best, significantly delayed.

At least one editorial board at a Texas newspaper sees wisdom in the modest proposal offered by Jacqueline Lain, director of governmental affairs for the Texas Association of School Boards.  In talking to the paper about the dispute, Ms. Lain suggested that the governor could add a statement to the application indicating that he will work diligently with the Legislature to maintain the current percentage of state education funding over the next three years, rather than assuring a specific funding level.  This, or similarly conditional language, would allow the governor to provide the required assurance within the constitutional constraints that he has cited.

For background on the federal Education Jobs Fund, TASB’s report and the editorial coverage, see the links below.

Texas Association of School Boards legislative report on dispute over federal funds

Statesman editorial urging TASB’s proposed solution to dispute

NSBA Legal Clips archive on Education Jobs Fund

NSBA Legal Clips archive on Secretary Duncan’s conference call

Virginia strengthens law on treating student-athlete concussions

The Newport News Daily News reports that Virginia has enacted legislation on treating youth sports concussions that mirrors the recommendation from the American Academy of Pediatrics (AAP).  AAP recommends that children or adolescents who sustain a concussion always be evaluated by a physician and receive medical clearance before returning to play. Virginia’s new law, which will go into effect in July 2011, will require every school division to inform student athletes and their parents and guardians about the short-term and long-term effects of concussions; it also will require any student suspected of sustaining a concussion to leave the playing field and not return until evaluated and given written permission by a licensed health-care provider. The details of the bill’s implementation will be hammered out in meetings around the state this year.

Contrary to public perception, only about one in 10 people incurring a concussion actually loses consciousness. More typical symptoms, which can appear immediately or up to 72 hours after impact, include disorientation, memory problems, dizziness, headache and nausea. Subsequent problems can include depression and sleep issues. One of the greatest concerns is "second impact syndrome" when a second concussion occurs before the brain has recovered from the first one "regardless of how mild both injuries may seem," according to the National Federation of State High School Associations. The NFSHA has revised its language this year to advise that no athlete suspected of having a concussion should return to the same practice or contest, even if symptoms clear within 15 minutes. Further, it no longer recommends the "grading" of concussions, as symptoms often worsen some time after the head injury.

Source: Newport News Daily News, 8/30/10, By Prue Salasky

[Editor's Note: The Virginia School Boards Association, which provides model policies for school districts in the state, notes that the state Board of Education has established a work group including medical experts to work on this issue.  To contact VSBA, go to the first link below. 

The AAP report on youth sports concussions is available at the second link below. The Chicago Tribune reports that the Illinois High School Association (IHSA) has adopted a new rule to protect student-athletes from potential serious long-term health risks that result from returning to action too soon after a concussion or other brain injury. The rule states that if an official, coach or trainer suspects a player of having a concussion, he or she can remove the player from the game. The player can return only if cleared by a proper medical professional. A summary of article is available at the third link below.]

Virginia School Boards Association

AAP concussion report

Legal Clips archive on IHSA concussion rule

South Dakota high school bans wearing cancer awareness bracelets that contain risque message

Baltic High School Principal Jim Aisenbrey has banned students from wearing cancer awareness bracelets that contain the caption "I love boobies," says a USA Today report in the Star Press. The bracelets have caused controversy in schools in states including California, Colorado, Idaho, Florida and Wisconsin. Some districts allow students to wear them inside-out, and others ban them. "When we had an assembly the first day of school, I basically told the students we are not insensitive to the cause," said Aisenbrey. "I think everybody in the gym, including myself, has had a family member or relative or friend who has dealt with the issue. I do think there are more proper ways to bring this plight to the attention of people, and I don’t think this is a proper way."

The bracelets, which sell for about $4 in stores, were created by Keep A Breast Foundation, a non-profit group that seeks to increase breast cancer awareness among young people. Proceeds from sales support the foundation’s programs, founder Shaney Jo Darden says. She says the bracelets are meant to spark discussions. In the Fresno, California area, students in the Clovis Unified School District (CUSD) were told not to wear the bracelets in class — or to turn them inside out so the message is not visible, according to CUSD spokeswoman Kelly Avants. She also noted that CUSD’s dress code outlaws jewelry with sexually suggestive language or images, she says.

Source: Star Press, 9/1/10, By USA Today

[Editor's Note: What constitutes "offensive" is often in the eye of the beholder, but school officials enforcing dress codes often must assume that anything that could be perceived as offensive is "offensive."  It is no-win situation for the official, who is likely to be denounced either by the student whose apparel was rejected or by a person or group who finds the apparel inappropriate, in bad taste or offensive based on political or religious views. In January 2010, the Pennsylvania’s Patriot-News reported that the West Shore School Board (WSSB) was considering changes to four district policies, including two that were challenged in a lawsuit in the fall. The suit was brought by the parent of a middle school student who was told to turn an anti-abortion T-shirt inside out because school officials thought it might offend other students. The policy revisions are the quid pro quo for dropping the suit. A summary of the article is below.]

NSBA School Law pages on WSSB dress code revision

New York state’s education department recommends local school districts do not ask for information related to enrolling students’ immigration status

In response to complaints from the New York Civil Liberties Union (NYCLU) that a number of local school districts have been asking for information that might reveal an enrolling student’s immigration status, the New York Times reports that the New York State Department of Education (NYDE) is recommending that school districts do not ask for such information. NYDE issued a memo in which it explained that a 1982 Supreme Court decision had recognized the right of all children, regardless of immigration status, to attend public school as long as they met the age and residency requirements established by state law. The memo states: "Accordingly, at the time of registration schools should avoid asking questions related to immigration status or that may reveal a child’s immigration status, such as asking for a Social Security number.”

The memo, titled “Student Registration Guidance,” was in response to pressure from NYCLU which had discovered that 139 districts  in the state were requiring children’s immigration papers as a prerequisite to enrollment, or asking parents for information that only lawful immigrants could provide. The state’s education law, which mandates a free public education for all residents ages 5 to 21 who have no high school diploma, allows districts to require documents that prove age and residency, like rental leases, birth certificates, consular identification cards and utility bills. It does not mention immigration-related documents. After the New York Times published an article on the issue in July, some school districts asked state officials for guidance, and the department decided to issue the memo, a spokesman said.

According to NYDE spokesman Jonathan Burman, “Shortly after the story ran, we revisited the issue and felt that it would be helpful to districts to give them more comprehensive guidance.” NYDE  developed the memo in consultation with lawyers from NYCLU. Asked why the memo stopped short of forbidding districts to request immigration-related documents, Burman said: “This was developed by our team of lawyers, and vetted and discussed and shared with the N.Y.C.L.U.’s counsel. So we felt that this was the best, most legally accurate guidance that we could share with the field.” NYCLU advocacy director Udi Ofer, acknowledge that memo could have been couched in stronger language, but emphasized  "the language included in this guidance makes it clear that school districts must amend their policies to be in compliance with constitutional law.” He also warned that the guidance was only as good as its enforcement. “The state must aggressively monitor the enrollment practices of the school districts,” Ofer said. If not, he warned, “surely the problem will continue.”

Source: New York Times, 8/31/10, By Kirk Semple

[Editor's Note: The New York Times' July article referred to above reported that NYCLU had found 139 school districts in the state were requiring students to produce documents establishing their valid immigration status or asking the parents for information only legally documented immigrants can provide. The article also noted the U.S. Supreme Court precedent in Plyler v. Doe, which prohibits districts from denying the children of undocumented parents access to public education. A summary of the article is available below.  At the second link below is NSBA's guide on legal issues surrounding the education of undocumented students.]

NSBA Legal Clips archive on New York school districts’ immigration practices

Legal Issues for School Districts Related to the Education of Undocumented Children

Texas school district violated students’ free speech rights by removing preset religious message on fundraiser greeting card order form

A federal district court in Texas has ruled that Katy Independent School District’s (KISD) decision to remove one of the preset messages from a holiday greeting card order form "because of its particular religious viewpoint" constituted impermissible viewpoint discrimination in violation of the students’ free speech rights. The court concluded the speech in question was neither government speech, which the school district could restrict because such speech does not implicate the First Amendment, nor school-sponsored speech that KISD could regulate provided it had legitimate pedagogical concerns. It also concluded KISD was not justified in engaging in viewpoint discrimination in order to avoid an Establishment Clause  violation. The district court had previously granted KISD summary judgment on the issue of whether its removal of the preset message, which contained a religious message, from the order form was constitutional. The plaintiffs then filed a motion for reconsideration of that decision.

The speech dispute arose out of a fundraising project to buy supplies for art classes at Pattison Elementary School (PES). PES made student artwork available for parents and friends to purchase as “art holiday cards” through a company called “Its My Artwork” (sic). KISD sent the company’s order form, with the name “Pattison Elementary” and the names of the art teachers written at the top, home with the children. The parents completed the form and wrote a check to Pattison Elementary to order cards. The completed cards had nothing that indicated any connection to the school or KISD. The cards were intended to be sent by the parents to whomever they chose, not by the school.

The order form contained a selection of preset messages that would be printed along with the artwork. KISD blacked out one of the preset messages on the order form, which stated: “And she shall bring forth a son, and thou shalt call his name Jesus; for He shall save his people from their sins. – Matthew 1:21.” The selection was removed by KISD officials because of its particular religious viewpoint. According to school officials, it was  blacked out because it was the only box that referenced a specific deity and a specific religious quote from a religious book, and KISD was trying to avoid violating the Establishment Clause.

The district court stated that the threshold question was whether the redacted speech was government speech or private speech. If it was government speech, KISD’s restriction would not implicate the First Amendment’s Free Speech Clause’s protections. It found that neither the plaintiffs’ argument that "the order form must be viewed as part of the art-card program, which was private speech" nor KISD’s argument that "the art-card order form must be viewed separately and that it is government speech" was "wholly correct." It concluded that even though the order form was a separate document, it should be analyzed within the context of the art-card program it facilitated.

However, the district court pointed out that the school was not using the program, which included the order form, to promote a particular policy or convene a government message. It stated: "The order form invited parents and children to create holiday cards that would be sent privately, with no evident connection to the school. This is far removed from the “traditional mission” of a public school exemplified in such activities as choosing textbooks or a commencement speaker." It rejected KISD’s contention that the order form was pure government speech because it concluded "[t]here is simply too loose and attenuated a connection between the order form, the cards it was used to create, and the school’s role to make the art-card form pure government speech exempt from First Amendment analysis."

The district court also rejected KISD’s argument that order form should be viewed as "school-sponsored speech" subjected to regulation by school officials based the principles enunciated in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988).  There was "no indication in the record that the art teachers used the holiday card program for any curricular purpose as well as a fundraising purpose." In addition, he district court pointed out that even if the speech in the present case was eligible for review under Hazelwood, it could not satisfy the "legitimate pedagogical concerns" prong of the test because KISD had not raised disruption of the school environment as a concern.

Lastly, the district court rejected KISD’s argument that even if its actions could not be justified on the basis of government or school-sponsored speech under Hazelwood, it was justified in engaging in viewpoint discrimination, vis-a-vis removing of the preset religious message, in order to avoid violating the Establishment Clause. It found that the issue was "whether an unredacted art-card order form would have violated the Establishment Clause." It determined that the religious content of the redacted message would not have crated a perception of KISD endorsing religion if the message had not been removed. The court stated: "For reasons similar to those explaining why the order form, viewed in the context of the art-card program, was neither pure government speech nor school-sponsored speech, the unredacted form could not fairly have been characterized as a government endorsement of any of the messages, including the [message containing religious content]." It, therefore concluded, "The unredacted order form would not have communicated the school’s endorsement of a particular religious belief."

In sum, the court determined on reconsideration that the speech is subject to First Amendment review; that the admitted viewpoint discrimination violated the First Amendment; and the asserted justification—avoiding a possible violation of the Establishment Clause—does not absolve the constitutional violation." 

Pounds v. Katy Indep. Sch. Dist., No. 06-527 (S.D. Tex. July 30, 2010)

[Editor's Note: Although ultimately finding against the school district, the district court in this case noted its sympathy with school officials who must attempt to navigate this murky legal area:  "The many cases and the large body of literature on this set of issues demonstrate the lack of adequate guidance to enable teachers and principals to determine whether the decisions they make comply with constitutional standards.  As this case demonstrates, decisions in such seemingly innocuous and benign activities as elementary school parties and fundraisers for elementary school art classes too often lead to protracted litigation."

One example of this potential minefield is the fundraiser involving the purchasing of bricks or tiles, with personal messages, to be displayed on school grounds.  Such programs have occasionally produced litigation over the "religious viewpoint" of the messages. In 2006, A New York federal district court ruled that a school district’s decision to remove bricks containing religious messages from a walkway on school property that was part of a school fundraising project violated the First Amendment’s Free Speech Clause. A summary of the opinion is available at the link below.]

NSBA School Law pages on Kiesinger v. Mexico Academy and Central School

New Jersey’s Division on Civil Rights has found probable cause for a former student’s complaint of bullying and harassment to proceed

The New Jersey Division on Civil Rights (NJDCR) has found “probable cause” that the Old Bridge Township Board of Education failed to take sufficient steps to stop the harassment and bullying of a former middle school student,  says the Star-Ledger. The probable cause finding, the first step in a procedure that could lead to a trial before an administrative law judge, came after the division investigated a complaint by the  parent of a student who attended Jonas Salk Middle School school from 2004 to 2007. The parent claimed her son was bullied because of his perceived sexual orientation and Jewish faith. ”It appears this student went to school in an extremely hostile atmosphere … in which he was subjected to a level of bias-based harassment and torment that no young person should have to endure,” said Chinh Q. Le, director of the Division of Civil Rights. He added, “With the new school year about to begin, this is the perfect time to remind school districts they have a duty to create and maintain a safe, nurturing and harassment-free learning environment.”

According to a statement from the state Attorney General’s Office, there were dozens of reported incidents of harassment against the boy involving many different students, including an incident in which several students stuffed papers down the front of his pants. The statement indicated that on another occasion, a middle school employee allegedly asked the boy if he was looking for his purse when he came to the school’s lost-and-found checking for an item. School officials denied the incident occurred, the statement said. According to the statement, the district’s own documentation showed that between early September 2006 and late January 2007 there were at least 11 reported incidents of harassment involving 14 different students. “In two of the cases, no action was taken because of a lack of information.  In the remaining cases, a total of 12 students received discipline ranging from a verbal warning to after-school detention to in-house suspension. However, the bullying continued.”

NJDCR cited the school district for “failing to take affirmative steps to prevent the bullying and for dealing with it only via after-the-fact steps, without any prevention measures or efforts at broader outreach,” the statement said. The next step is “conciliation” where the division, the family and the board of education try to work out a settlement. If that doesn’t work, the case goes to trial before an administrative law judge.

Source: Star-Ledger, 8/31/10, By Sue Epstein

[Editor's Note: According to NJDCR'sopinion, the student was "subjected to bias-based peer harassment that was sufficiently severe and pervasive to create a hostile school environment." NJDCR in essence took issue with school officials' failure to take a proactive approach to eliminating the harassment, noting that school officials waited for individual incidents to occur and then took limited and "reasonable and insufficient" steps to end the harassment. A copy of the NJDCR's findings is available below.]

NJDCR finding

New York City teacher suspended for allowing students to use vulgar terms during AIDS discussion settles suit

According to the New York Daily News, Faith Kramer, the teacher who let middle school students use sexually explicit language in a classroom discussion on AIDS, has agreed to a settlement in her lawsuit against the city. The dollar  amount was not disclosed. Kramer’s federal court suit sought $2 million. She is back in her classroom at Intermediate School 72 on Staten Island. “She’s glad to have this behind her in time to go back to the classroom in the fall,” said Duane C. Felton, her lawyer. The article also noted that the federal district court refused to dismiss the suit, saying there was no regulation against using the “vulgarism of the street” in sex-ed lessons.

Source: New York Daily News, 8/13/10, By David Goldner

[Editor's Note: Although the Daily News article leaves the impression that the court upheld Kramer's free speech claim, the claim that survived the school district's motion to dismiss the suit was her procedural due process claim. The court ruled that Kramer had failed to state a valid First Amendment free speech claim based on being disciplined for eliciting sexually explicit and slang terms from students in the course of teaching a state-mandated HIV/AIDS lesson. The court upheld her procedural due process claim, however, based on the lack of notice and vagueness of the regulation the school board cited as the basis for disciplining her.]

NSBA Legal Clips archive on Kramer v. New York City Bd. of Educ.

Mississippi school district drops policy of reserving class officer positions based on race

Nettleton School District has dropped a 30 year old policy that restricted student eligibility for class offices based on race, reports Education Week. The policy was intended to promote racial equality in a school district where the local population is approximately 66% white and 32% African-American.  However, a flurry of online criticism erupted after the parent of a mixed-race student learned her daughter was ineligible to run for class reporter because of the race restrictions. The Mississippi chapter of the  NAACP called on the U.S. Department of Justice (DOJ) to conduct an investigation. According to a statement posted by Superintendent Russell Taylor, the practice had been in place for 30 years, dating back to a time when school districts across Mississippi came under close scrutiny from DOJ over desegregation. "It is the belief of the current administration that these procedures were implemented to help ensure minority representation and involvement in the student body," the statement said. "It is our hope and desire that these practices and procedures are no longer needed."

The parent, Brandy Springer, stressed that even if the rule is an attempt to ensure black and white participation, diversity is no longer a black and white issue, with a growing number of mixed-race children, Hispanics and other ethnicities attending school together. The school agreed, saying that it "acknowledges and embraces the fact that we are growing in ethnic diversity and that the classifications of Caucasian and African-American no longer reflect our entire student body." Charles Hampton, a vice president of the Mississippi NAACP, said, "That’s something that shouldn’t be happening anywhere in America, but we still have pockets of it happening at certain schools." He added, "The local community needs to get involved and demand they change the policy."

Source: Education Week, 8/30/10, By Associated Press

[Editor's Note: Nettleton's class elections policy is an example of the road to hell, or at least the road to litigation, being paved with good intentions. In May, AnnArbor.com reported on a Michigan school district's disbanding of an elementary school club open only to African-American students. In the article, Ann Arbor school board President Deb Mexicotte publicly acknowledged that an elementary school program violated Michigan state law and the district’s own anti-discrimination policy. “The effort was well-intentioned,” Mexicotte said. “We are sorry that this cast our community in a negative light.” A summary of the article is available at the link below.]

NSBA Legal Clips archive on Ann Arbor student club

School district ordered to pay plaintiff’s attorney approximately $260,000

The Philadelphia Inquirer reports that a federal district court judge has ordered Lower Merion School District (LMSD) to pay approximately $260,000  to the plaintiff’s attorney for work that resulted in the preliminary injunction that the judge issued in May. Judge Jan E. DuBois added that attorney Mark S. Haltzman  could submit the rest of his bills when the case ended. The  injunction prohibits LMSD from activating webcams on students’ district-issued laptops without their consent and requires the district to implement new policies governing the use of technology. An LMSD  spokesman said school officials were “deeply disappointed” in the decision.

Still unresolved is the underlying lawsuit, which Haltzman filed on behalf of  Harriton High School student Blake Robbins, and his parents, claiming LMSD staff members spied on students through the webcams. LMSD contends it activated the software only when laptops were lost or missing. Haltzman had asked that the school district pay him more than $435,000 in fees and expenses that he said he and his firm incurred through July investigating Robbins’ claims and initiating a proposed class-action lawsuit. However, Haltzman may at this point to collect only fees and expenses incurred up to the May 14 injunction, and cannot submit the rest of his bills until DuBois enters a final injunction.

The order did not include a bottom-line figure, but it instructed the sides to agree on a sum. Haltzman said that should be about $260,000. In a statement, a spokesman for the school district said officials believed the judge “gave only fleeting consideration” to their arguments and repeated that Haltzman did not deserve to be paid. “We believe that the Robbinses’ attorney has protracted this matter, increasing costs to taxpayers,” said LMSD spokesman Doug Young.

Source: Philadelphia Inquirer, 8/31/10, By John P. Martin

[Editor's Note: In March, the Philadelphia Inquirer reported that Graphic Arts Mutual Insurance Co., who is the insurer for LMSD, was balking at the school district's request that it cover costs arising from the suit over LMSD’s use of its laptop tracking system. A summary of the article is available at the link below.]

NSBA School Law pages on LMSD insurance dispute