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Legal Clips will be on hiatus for the Thanksgiving holiday

Legal Clips will taking a brief hiatus to celebrate the Thanksgiving holiday beginning Tuesday, November 24, through Sunday, November 29. Clips will return on Monday, with fresh news and cases.

We wish our loyal subscribers an enjoyable and restful Thanksgiving and continuing joy through the holiday season.

Virginia district adopts policy banning Confederate flag symbols and other divisive symbols

The Montgomery County School Board has banned apparel displaying Confederate and other symbols at school, says an Associated Press (AP) report in The Washington Post. The revised student dress code policy bans apparel that would disrupt a school’s learning environment. Among those symbols banned are clothing displaying Confederate symbols and items denoting neo-Nazi and other hate groups.

The revision follows recent protests over Christiansburg High School’s ban on Confederate symbols on student vehicles in the parking lot. The ban is effective Feb. 1, 2016.

Source: The Washington Post, 11/18/15, By AP

[Editor’s Note: In September 2015, Legal Clips summarized an article in The Washington Post reporting that 23 students from Christiansburg High School (CHS) were suspended for wearing clothing emblazoned with the Confederate battle flag, which violates the school’s dress code. The students wore the controversial Confederate symbols to protest a school policy that prohibits them, which they view as a violation of their free speech.]







California court dismisses lawsuit against district administrators accusing them of turning a “blind eye” while undercover police officer at high school entrapped autistic student into selling the officer drugs

The Daily Chronicle reports that a California court dismissed a suit filed by the parents of Jesse Snodgrass, who suffers from autism, against Temecula Valley Unified School District (TVUSD) administrators, alleging that Snodgrass was manipulated and entrapped into a drug sting. The suit named Director of Child Welfare and Attendance Michael Hubbard and Director of Special Education Kimberly Velez as defendants. It alleged negligence and intentional infliction of emotional distress.

According to the suit, Snodgrass, who has difficulty making friends and interpreting everyday social cues, was falsely befriended by an undercover police officer who repeatedly insisted that Snodgrass find marijuana for him. After being harassed for nearly three weeks via 60 text messages, Snodgrass was able to buy half a joint from a homeless man to give to the officer.

The suit also states Snodgrass bought marijuana for his “friend” once more before refusing to do it again, at which point the officer ceased all communication with Snodgrass. Shortly after, Snodgrass was arrested in front of his classmates along with 21 additional students, many of whom have special needs.

The court dismissed the suit on the grounds that the defendants could not be proven as knowing participants in targeting and entrapping Snodgrass. However, the primary issue of entrapping those with special needs at school remains a significant point of concern. LADP Deputy Chief Stephen Downing (Ret.), a board member for Law Enforcement Against Prohibition (LEAP), a criminal justice group working to end the War on Drugs, said, “Since the time of Jesse’s arrest and subsequent publicity surrounding the lawsuit, school drug stings in Riverside and San Bernardino Counties have stopped and not one child has been perp-walked in handcuffs out of their classroom,”

However, Downing warned, “But there’s nothing to stand in the way of drug warriors and their school board abettors victimizing more unsuspecting kids in the future. As a society, we have to decide that the law needs to protect children from being manipulated and lied to by authorities.” The LAPD ceased undercover sting operations in schools in 2005, after school district officials noticed that many of the students caught in these stings had special needs and disabilities, that mostly small amounts of marijuana were involved, and that the operations were unsuccessful at reducing drug availability. The Justice Department would later confirm the findings of the report.

Snodgrass’s parents are planning to appeal dismissal of the suit.

Source: The Daily Chronicle, 11/6/15, By Mikayla Hellwich

[Editor’s Note: In May 2014, Legal Clips summarized an article The Press-Enterprise reporting that TVSD had filed a crossclaim against Riverside County and its Sheriff’s Department in the suit brought by Snodgrass’s parents against TVSD, Riverside County, and the Sheriff’s Department. The student, who is autistic, was arrested in an undercover school drug bust. He allegedly attempted to sell a small amount of marijuana to a sheriff’s deputy posing as a student at Chaparral High School (CHS).]



New Mexico Supreme Court rules that state law provided loan of textbooks to private schools violates state constitution

Moses v. Skandera, No. S-1-SC-34,974 (N.M. Nov. 12, 2015)

Abstract: The New Mexico Supreme Court has ruled that Article XII, Section 3 of the New Mexico Constitution prohibits the state from providing books for use by students attending private schools, whether secular or sectarian. As a result, it held that the state’s Instructional Material Law (IML), under which the legislature appropriates instructional materials funds and private schools are allocated a percentage of the funds based on the number of students enrolled in their schools, ran afoul of Article XII, Section 3. The supreme court stated: “Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools.”

Facts/Issues: Two New Mexico residents and taxpayers filed suit against the New Mexico Public Education Department (NMPED) alleging that the IML violates their rights under the state constitution. Their suit claimed:

[T]he State issuing instructional materials to students attending private schools is unconstitutional because doing so supports sectarian, denominational, or private schools in violation of New Mexico Constitution Article XII, Section 3; forces them as taxpayers to support the religious dictates of others in violation of New Mexico Constitution Article II, Section 11; and appropriates or donates public funds to private parties in violation of New Mexico 3 Constitution Article IX, Section 14.

The state trial court granted NMPED’s motion for summary judgment. The New Mexico Court of Appeals affirmed the trial court’s decision.

The plaintiffs raised five issues on appeal: (1) whether the Court’s decision in Zellers constituted dicta; (2) whether the IML violates Article XII, Section 3 of the New Mexico Constitution; (3) whether the IML violates Article IV, Section 31 of the New Mexico Constitution; (4) whether the IML violates Article IX, section 14 of the New Mexico Constitution; and (5) whether the IML violates Article II, Section 11 of the New Mexico Constitution.

Ruling/Rationale: The New Mexico Supreme Court reversed the Court of Appeals decision, holding that IML violates Article XII, Section 3. It, therefore, did not address the remaining four issues. It rejected the Court of Appeals’ reasoning that Article XII, Section 3 provides “protection only against the establishment of religion, similar to the Establishment Clause of the First Amendment to the United States Constitution and the Establishment Clause of Article II, Section 11 of the New Mexico Constitution.”

The supreme court stressed that Article XII, Section 3’s prohibition, unlike establishment clause prohibitions, was not limited to religious schools, but applied across the board to all private schools. It said, “The historical context in which Article XII, Section 3 was adopted helps explain why this constitutional provision was not a recodification of the Establishment Clause of the New Mexico Constitution.”

After reviewing the history of the so called “Blaine” amendments in their state constitution, the supreme court pointed out that the U.S. Congress “granted New Mexico statehood on the explicit condition that it adopt a similar ‘Blaine’ provision in the New Mexico Constitution.” It emphasized that the “Blaine” provision in New Mexico’s Enabling Act “is nearly identical to that of Article XII, Section 3, with two critical differences.”

According to the court those differences are:

The Enabling Act prohibits the use of “proceeds arising from the sale or disposal of any lands granted [in the Enabling Act] for educational purposes” to support sectarian schools. In contrast, the drafters of the New Mexico Constitution restricted the use of proceeds from any lands granted to New Mexico by Congress, not only those granted in the Enabling Act, and they also restricted the use of any funds appropriated, levied, or collected for educational purposes for the support of not only sectarian schools, but also the much broader category of private schools.

The supreme court also rejected the Court of Appeals reasoning “that the direct recipients of the IML financial program are the parents of the children, and therefore the benefit to private schools is not direct enough to violate Article XII, Section 3.” Instead, it found that the “broad language of this provision and the history of its adoption and the efforts to amend it evince a clear intent to restrict both direct and indirect support to sectarian, denominational, or private schools, colleges, or universities.”

As a result, the New Mexico Supreme Court concluded “Article XII, Section 3 must be interpreted consistent with cases analyzing similar Blaine amendments under state constitutions.” In addition to California Supreme Court and Nebraska Supreme Court precedent, it found the “Supreme Courts of Oregon, Massachusetts, and Missouri interpreted similar Blaine-like state constitutional provisions and determined that even indirect aid to the sectarian, denominational, or private schools violates the constitutional provision.” It also noted that South Dakota and Hawaii have reached similar conclusions under their state constitutions, which the court found significant “because like New Mexico, these states were required to adopt Blaine-like amendments into their respective state constitutions for their admission into the Union.”

The supreme court stated:

The framers of our Constitution chose to further restrict the use of public funds by prohibiting their use for the support of private schools. As a result, a public school under the control of the State can directly receive funds, while a private school not under the exclusive control of the State cannot receive either direct or indirect support.

It, therefore, concluded, “Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools.”

Moses v. Skandera, No. S-1-SC-34,974 (N.M. Nov. 12, 2015)

[Editor’s Note: Legal Clips summarized an article in the Las Cruces Sun-News reporting that two New Mexico residents, Paul Weinbaum and Cathy Moses, had filed suit challenging a 40-year-old law that calls for the state Public Education Department to provide free textbooks to all students. Their petition to the New Mexico Supreme Court claims that more than 40% of the money the state spends on textbooks for private schools goes to religious schools. The average total for the previous two fiscal years was approximately $1.8 million per year.]



Missouri district adopts policy for accommodating transgender students, including gender neutral restrooms

The Daily Statesman reports that the Dexter School Board has adopted a policy addressing the accommodation of transgender students. After reviewing the transgender student policy drafted by the Missouri School Board Association (MSBA) and one drafted by the Missouri Consultants for Education (MCE), Superintendent Mitch Wood recommended the MCE policy. The board approved Wood’s recommendation.

Although adoption of a transgender student  policy was not mandated by Missouri’s Department of Elementary and Secondary Education or any other state entity, both MSBA and MCE suggested that the issue be addressed and that a policy be put in place with local boards to avoid future litigation over the transgender issue. Wood told the board, “We are simply putting policies in place that will protect our district and students from future frivolous lawsuits.” Wood also said, “I think this protects us. I also think it protects our students and any transgender students that might come into our district.” He added, “I think it’s the right thing to as far as protecting our district as whole.”

The policy addresses specific needs with regard to transgender students, including assigning neutral restroom facilities within each building on a school campus, granting permission for a transgender student to select a first name and pronoun that more closely matches their gender identity, issues regarding apparel and other issues. In regard to restrooms, the policy states:

The District, when requested, will designate a gender neutral restroom(s) in each building with the appropriate signage.

All students, regardless of their gender identity will have the option of using the gender neutral restroom, or the restroom designated for their biological sex.

In regard to locker rooms/showering facilities, the policy states:

In District secondary schools, students who elect to participate in physical education classes that require access to locker rooms or showering facilities will be expected to use those facilities designated for their biological gender. However, upon request of a transgender student and/or their parents, alternatives will be considered. In consultation with the student and parents, the alternative will include, but not be limited to, on-line PE courses, independent study; scheduling adjustments to include early access to change and showering facilities; separate enclosed change and shower room within the locker room. Each such request would be considered on a case-by- case basis. However, if consensus cannot be reached with the student/parents, the District will select an option that is in the best interest of all students.

Source: The Daily Statesman, 11/18/15, By Noreen Hyslop

[Editor’s Note: In November 2015, Legal Clips summarized an article in The New York Times reporting that the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) had informed Palatine-Schaumburg High School District 211 (PSHSD211) that its continuing refusal to allow a transgender student to use the girls’ facilities violates Title IX’s prohibition against sex discrimination. OCR’s letter gave PSHSD211 30-days to reach a solution or face enforcement, which could involve administrative law proceedings or a lawsuit by the U.S. Department of Justice.]


Idaho court rules that student fees imposed by district violate the state constitution

Fourth District Judge Richard Greenwood has ruled that West Ada School District (WASD) violated the Idaho Constitution’s guarantee of a free education when it required students to pay certain fees, reports the Idaho Statesman. Although the lawsuit initially named the state Department of Education and numerous other Idaho school districts as defendants and included plaintiffs from other districts, Judge Greenwood dismissed those portions of the case, in 2013, narrowing it to WASD.

According to Russell Joki, a plaintiff in the case, the judge applied the 1971 Idaho Supreme Court ruling that declared that fees required for any necessary element of education would be unconstitutional. “Where a class is offered as part of the regular academic courses of the school, the course must be offered without charge,” Greenwood wrote in his conclusions.The ruling, which focuses soley on specific fees charged of Joki’s grandchildren, does not order the West Ada district to stop charging fees for classes or kindergarten programs. But it requires the district to repay what the Jokis were “improperly forced to pay.”

WASD spokesman Eric Exline said that he does not know how Greenwood’s ruling will affect the district’s student fee policy. Joki, who is currently a member of WASD’s board, said the board likely won’t address the fee issue until February, when the district administration customarily recommends continuation of fees and the creation of new fees. He said he has recused himself from any board discussion of his lawsuit and the issues it raises.

Source: Idaho Statesman, 11/17/15, By Kristin Rodine

[Editor’s Note: In March 2013, Legal Clips summarized an Associated Press article in the Idaho State Journal reporting that Judge Greenwood dismissed the state from a lawsuit challenging the constitutionality of the fees many public schools charge for classes and the legality of Idaho’s overall education funding system. The judge agreed with the Attorney General’s Office that an existing statute protects the state from being involved at this point in the case.]





COSA Webinar: December 2, 2015 – Federal Update: An Inside Look at Congressional and Agency Activity Affecting Public Schools

Congress is moving on ESEA; join us for an update! The webinar will cover the latest developments for ESEA modernization, including House-Senate conference committee actions and initial implementation efforts, should the legislation become law. As of mid-November, the leadership of the House Committee on Education and the Workforce and the Senate Committee on Health, Education, Labor and Pensions (HELP) have announced plans to appoint a conference committee for the legislation, with final consideration tentative in early December. Meanwhile, federal agencies continue to issue guidance affecting public schools.

Members of the NSBA legal and federal advocacy teams will cover Washington goings-on that affect your school district clients: ESEA, FERPA, Child Nutrition, and agency guidance and rulemaking. Register now for the Federal Update

  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Host: Tammy Carter, NSBA Senior Staff Attorney
  • Presenters: Leza Conliffe, NSBA Senior Staff Attorney; Deborah Rigsby, NSBA Director of Federal Legislation

Suit accuses New York state district of discriminating against refugees

According to The New York Times, the State of New York’s Attorney General, Eric T. Schneiderman, has filed suit against Utica City School District (UCSD) alleging that the school district refused to enroll refugee children because of their age and their unsteady English. The suit claims refugee students over 16 were funneled into alternative programs, in which they could not earn credits toward a diploma, as part of a broad program aimed at barring immigrants from the district’s only public high school.

Advocates who work with immigrants to obtain services say that some districts exclude students who are in their later years of high school and are inexperienced in English in order to drive up graduation rates. “Every New Yorker under the age of 21 has a right to attend public school in the district in which they reside, regardless of immigration status or national origin,” Schneiderman said. “Access to a quality education is the foundation of the American dream. School districts cannot place arbitrary impediments and barriers in the way of immigrants and refugees who have struggled to achieve a better life for themselves and their families.”

UCSD’s attorney, Donald Gerace, said Utica had “never refused to enroll any students.” He added there were at least 220 students at the high school who had been classified as “English ­language learners” and had enrolled when they were at least 17. The district is “severely underfunded,” Mr. Gerace pointed out, “which affects services for all of its students.”

The attorney general’s suit was spurred by a statewide review to determine whether districts were violating a Supreme Court mandate against discrimination in schooling by asking about children’s immigration status before enrolling them. The review, initiated in October 2014, has resulted in more than 20 districts agreeing to change their enrollment policies, according to Mr. Schneiderman’s office.

The suit alleges that even some students who had finished years of high school in other American districts and then transferred to Utica were told they could not enroll at the high school. The suit also claims UCSD kept no records of these children’s attempts to enroll and did not test them on their English as required by law. The legal complaint says, “The district could claim that these individuals were unknown to it — effectively strangers to the district who never sought to enroll and, thus, toward whom the district had no legal obligations beyond whatever piecemeal services the district chose to offer them.”

The lawsuit says the alternative programs sent students “down a path to nowhere.” They could not earn credits toward a diploma or properly prepare for a high school equivalency exam, the lawsuit says, leaving students to languish for years with only training in basic English. They were also housed in separate buildings and segregated for gym, art and music classes. The lawsuit says they could not mix with their peers for lunch or extracurricular activities either, which is a violation of state law.

The New York Civil Liberties Union filed a class action lawsuit against the district in April on behalf of six refugee students, describing a similar pattern of exclusionary enrollment practices stretching back to at least 2007. Gerace said several of those students had since enrolled at the high school.

Source: The New York Times, 11/17/15, By Benjamin Mueller

[Editor’s Note: In April 2015, Legal Clips summarized an article in Syracuse.com reporting that the New York Civil Liberties Union (NYCLU) and Legal Services of Central New York (LSCNY) had filed suit in federal court on behalf of six refugee students and a class of similar immigrant students against UCSD. The suit alleges that UCSD bars refugee students between the ages of 17 and 20 from attending Proctor High School, instead sending them to two alternative schools. According to the suit, one of the alternative schools is the Newcomer Program at the Mohawk Valley Resource Center for Refugees, where the only class offered is English as a second language.]


Maryland district schedules professional work day to coincide with major Muslim holiday

The Washington Post reports that the Montgomery County Board of Education (MCBOE), in a 6-2 vote, has decided to move a professional work day for teachers and administrators to Sept. 12, 2016, which could coincide with the Muslim holy day of Eid al-Adha. Eid al-Adha’s celebration varies from year-to-year because it is based on a lunar calendar. In 2016, it is expected to fall on Sept. 11, a Sunday, or on Sept. 12, a Monday.

Although the board’s vote represents a significant victory for the local Muslim community after years of lobbying for the same treatment as Christians and Jews, Montgomery County Public Schools (MCPS) officials have said they cannot, by law, close schools to observe religious holidays. While MCPS closes schools on major Christian and Jewish holidays such as Christmas and Yom Kippur, officials cite state requirements or operational effects such as expectations of large absenteeism on those days.

MCPS made national news last year when they struck the names of religious holidays off of the county’s school calendar document in an attempt to show neutrality, a move that drew criticism, including from the Muslim community. However, it has since created an additional online calendar on which users can view religious holidays and days of cultural celebration.

Muslim community leaders say that the issue is fairness and that, without a school closing, Muslim students must choose between their faith and their education when Eid al-Adha or Eid al-Fitr fall on a school day. A board majority approved the measure even though it was not possible to be certain when Eid al-Adha will fall in 2016.

District staff members are expected to go back to the board with a proposal for which professional workday would be switched to Sept. 12 to accommodate the holiday. Montgomery County has five teacher workdays before the school year begins and four other professional days during the year.

Source: The Washington Post, 11/10/15, By Donna St. George

[Editor’s Note: In March 2015, Legal Clips summarized an article in The New York Times reporting that New York City Mayor Bill de Blasio has announced that the city’s public schools will be closed in observance of the Muslim holy days of Eid al-­Fitr and Eid al-­Adha. New York City will be the first major metropolitan school system in the nation to observe the holy days. However, a number of school districts nationwide, including municipalities in Massachusetts, Michigan and New Jersey, have added the Muslim holy days to their school calendars.]


Advocacy group threatening Tennessee district with suit over district’s refusal to scrap textbooks with alleged pro-Muslim bias

Nashville Public Radio reports that Citizens Against Islamic Indoctrination (CAII) are demanding that White County School District (WCSD) return textbooks to the publisher that CAII say are biased in favor of Muslims. CAII has threatened to file suit against WCSD for its refusal to scrap the textbooks.

The White County Board of Education (WCBOE) voted unanimously to hire an attorney to represent them in this potential legal battle. According to CAII, the school district is working in secret to approve the textbooks. The school board is receiving support from the group Association for Accurate Standards in Education, whose members reject accusations that the board has acted improperly.

A number of school districts in Tennessee are facing accusations of using textbooks with a pro-Muslim bias. So far only a few districts have agreed to replace the offending textbooks.

Source: Nashville Public Radio, 11/16/15, By Chas Sisk

[Editor’s Note: CAII’s Facebook page claims that the Council on American-Islamic Relations supports WCBOE’s pro-Islam textbook.

In September 2010, Legal Clips summarized an article from AFP reporting that the Texas State Board of Education (TBOE) had passed a resolution to reject any textbooks which paint Islam in too favorable of a light, vowing to curtail what it sees as a “pro-Islam/anti-Christian” bias in school books.]

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