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Legal Clips is taking a brief hiatus

Legal Clips will be taking a brief hiatus from Tuesday, October 18, through Friday, October 21, while the Council of School Attorneys (COSA) holds its annual School Law Practice Seminar in Portland, Oregon. Clips will resume on Monday, October 24. We look forward to providing you, our loyal readers, with the latest news related to school law.

ACLU seeks to intervene in suit over MInnesota district’s policy accommodating transgender student’s use of locker room based on gender identity

The Hibbing Daily Tribune reports that the American Civil Liberties Union of Minnesota (ACLU-MN) has filed a motion to intervene in a federal lawsuit on behalf of a transgender student, who is at the center of the legal dispute over Virginia School District’s (VSD) decision to allow her to use the girls’ locker room at school. The suit is seeking to bar transgender students from using locker rooms consistent with their gender identity.

According to the ACLU-MN’s motion, the male to female transgender student identifies as a female, and “has been living all aspects of her life in accordance with her female identity for approximately two years.” The motion asserts that the student, referred to as Doe, has a right to equal treatment under Title IX and the Equal Protection Clause.

ACLU-MN Communications Director Jana Kooren said that although the original lawsuit is against the Virginia School District and the Department of Education, their client, Jane Doe, was mentioned throughout the complaint, referred to as Student X. According to the motion, the ACLU believes the “real target of Plaintiffs’ allegations” is Doe.

In September, a group of VSD parents, acting through an organization called Privacy Matters, filed a complaint against the district and the U.S. Department of Education. The lawsuit asks the court to halt the school district’s policy that opens up showers and changing areas to the “opposite sex” and invalidate the DOE’s rule that illegitimately redefines “sex” in Title IX. The school district was reacting to federal guidelines that stated “a school must treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” the complaint, backed by the Alliance Defending Freedom (ADF) states.

The ACLU-MN motion states in part:

Privacy Matters have now publicly singled Jane out from the rest of the team and used misleading innuendo and salacious phrasing to file a Complaint depicting the ordinary behavior of a teenage girl as threatening or scandalous just because she is transgender. The parents seek to take away her right to be an ordinary high school girl, marginalizing and segregating her from her classmates and teammates.

Source: Hibbing Daily Tribune, 10/15/16, By Jesse White (Mesabi Daily News)

[Editor’s Note: The ACLU-MN motion to intervene states: “Jane files this timely motion to intervene in order to defend her right to equal treatment under Title IX, 20 U.S.C. § 1681, et seq., and the Equal Protection Clause.”]

Additional background resources on this suit:

In September of 2016: Legal Clips summarized an article in The Daily Signal reporting that a student/parent group, known as Privacy Matters (PM), had filed suit in federal district court against the U.S. Departments of Education (ED) and Justice (DOJ) and Virginia Public Schools, alleging that the school district’s current policy, which allows a transgender student access to the girls’ locker room on the basis of gender identity, is an invasion of personal privacy. PM is being represented by attorneys from Alliance Defending Freedom (ADF).] 


Blind parent’s suit claims Atlanta district is failing to provide reasonable accommodation by refusing bus service for parent’s three elementary school children

According to the Atlanta Journal Constitution, Daffanie Todd, the blind mother of three elementary school children, has filed suit against Atlanta Public Schools (APS) alleging that APS is failing to reasonably accommodate her because it refuses to provide bus service for her children. Todd, who lost the last of her eyesight in 2013, is unable to walk outside her home without a guide. As a result, she is unable accompany her children, ages 9, 8 and 5, to and from their school, which is half a mile away on a street with no sidewalks and heavy traffic. Because APS has denied her request for bus service, Todd’s children have not attended school for over nine weeks.

Atlanta Legal Aid (ALA) filed suit in federal court on Todd’s behalf alleging that the APS’ failure to “reasonably accommodate” Todd and her children violates the Americans with Disabilities Act (ADA). ALA is seeking a court order to compel APS to immediately provide transportation. APS  opposes the order on the ground that Todd’s request would cause “incredible harm and disruption.” Helping Todd, the district said, “opens the door to countless claims” from other parents.

The legal dispute stems from a very literal interpretation of an APS policy that reflects state law. APS offers bus service only to students who live outside a certain perimeter – 1 1/2 miles from their school. Anyone who lives inside the “walk zone,” the district’s transportation chief told Todd, is “ineligible” to ride the bus.

APS policy also requires adult supervision for young children, the lawsuit said. But, lawyers wrote to APS in September, “Ms. Todd does not have other family members or trusted friends who are available to walk her children to school in her stead.” When the family lived in other school attendance zones in Atlanta, the lawsuit said, officials altered bus routes to accommodate Todd’s disability. This year, though, no one is willing to bend the rule.

The district proposed an alternative in mid-September, the lawsuit said: a “walking pool” in which another parent would accompany Todd’s children. Todd was not comfortable handing her children over to a stranger – a stranger she could not see. And, it turned out, the “pool” really consisted only of a couple of other students who would walk along with Todd’s. When Todd rejected the alternative, the lawsuit says, district officials told her APS would provide no accommodations.

In its response, APS disputed few of Todd’s allegations. However, it said her children rode a bus to other APS schools only because the “walk zones” were deemed unsafe. John Franklin, the district’s executive director for transportation, said in an affidavit that he walked the route between Todd’s home and Continental Colony. During his 10-minute walk, he said, he saw no “safety concerns.”

If Todd’s children had their own bus stop, APS said, “it would be very difficult, if not impossible, to prevent non-disabled students of non-disabled parents from also boarding the bus, which could lead to overcrowded buses.” Most of the district’s response, however, disputes Todd’s contention that denying bus service violates the ADA. The district says Todd’s disability should give no “advantage” to her children.

The response contained several hypothetical examples of how other disabled parents might request unreasonable concessions. “The potential for abuse,” APS said, “presents an untenable scenario for a district with limited resources to accommodate any number of requests by disabled parents derivatively applying their personal rights to their children.”

Source: Atlanta Journal Constitution, 10/11/16, By Alan Judd

[Editor’s Note: In September 2015, Legal Clips summarized a decision by a U.S. Court of Appeals for the Eleventh Circuit three-judge panel in Hill v. Clayton Cnty. Sch. Dist. holding that a former school bus driver had failed to state valid claims under Title VII for race discrimination and retaliation. However, it held that she stated a valid claim under the Americans with Disabilities Act (ADA) based on the school district’s alleged failure to provide her with a reasonable accommodation. The panel found the driver had satisfied the elements necessary to state a prima facie case of discrimination under the ADA based on the school district’s failure to provide her with a reasonable accommodation. It concluded that there was a genuine issue of fact in regard to whether the driver was later offered an air-conditioned bus after she was placed on unpaid leave.]

Maryland’s new law protecting student journalists from censorship takes effect

The Student Press Law Center has issued a press release announcing that Maryland’s new law, Senate Bill 764 (SB 764), which extends protection to student journalists and journalism teachers from institutional censorship and retaliation took effect on October 1, 2016. SB 764 was signed into law on April 26, 2016 by Gov. Larry Hogan.

Maryland joins nine other states, Arkansas, California, Colorado, Illinois, Iowa, Kansas, Massachusetts, North Dakota and Oregon, which limit censorship by statute. The District of Columbia and Pennsylvania protect student journalists’ rights via state board of education regulations.

The statute limits the impact of the U.S. Supreme Court’s 1988 ruling, Hazelwood School District v. Kuhlmeier, which greatly reduced the burden for public schools to justify censoring speech in school-affiliated curricular publications. “It’s an exciting moment for press freedom in Maryland. For the first time in decades, students will have the freedom to control the content of their own media,” said teacher Gary Clites, president of the Maryland-D.C. Scholastic Press Association.

Certain categories of journalistic speech remain unprotected and, at the high school level, can legally be removed from student publications, including material that is libelous, invades privacy, incites students to break the law or violate school board regulations, or that is harassing, threatening, vulgar, lewd or obscene. The law protects students and educators only at public institutions. Maryland is the third state in the past two years, joining Illinois and North Dakota, to enact a statute outlawing image-based censorship of student media.

Source: Student Press Law Center, 10/1/16, By Frank LoMonte

[Editor’s Note: The text of SB 764 states in part: “… prohibiting certain student media advisors from using their position to influence a student journalist to promote certain positions; prohibiting a county board of education from exercising prior restraint, except under certain circumstances; specifying that the administration of a certain public school will have the burden of proving certain justification under certain circumstances; prohibiting the discipline of certain student journalists and certain media advisors under certain circumstances; requiring certain county boards and certain institutions of higher education to adopt certain policies; defining certain terms; and generally relating to the freedom of speech and the freedom of the press for student journalists in school–sponsored media.”

Additional Legal Clips resources:

June 2010: Legal Clips summarized an article in the Tacoma News Tribune reporting that in the aftermath of a lawsuit brought over an article published in a student newspaper, the Puyallup School Board (PSB) wanted a new Washington state law to protect school districts from lawsuits that result from the actions of student journalists. The legislation proposed by PSB also would exempt student publications from prepublication review by administrators, so that students would have control over what appears in their news pages.

November 2011, Legal Clips summarized a decision by the Iowa Court of Appeals in Lange v. Diercks holding that a school district improperly reprimanded the faculty advisor of a high school student newspaper for allowing student journalists to publish articles that district officials believed violated the limited restrictions on student speech set out in the state’s student free expression law. The appellate court rejected the school district’s argument that the state law was a codification of the student speech standard established by the U.S. Supreme Court in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Instead, it determined that the law was passed “for the purpose of giving students more robust free-expression rights than those articulated by the Supreme Court.”

October 2012: Legal Clips summarized an article in The Sacramento Bee reporting that a Roseville Joint Union High School District board decision to give the superintendent the right to approve advertising content in school newspapers and yearbooks had sparked a debate in the community over free speech rights. The board’s action could have broad implications for school districts in the region and throughout California. “The district is opening themselves up to a lot more liability than they are protecting themselves from,” said Adam Goldstein an attorney advocate with Student Press Law Center (SPLC).

February 2015: Legal Clips summarized an article in the Courthouse News Service reporting that six journalism students from the University of Jamestown authored a  preliminary bill, being sponsored by state Rep. Alex Looysen (House Bill 1471), which would grant students many of the protections enjoyed by professional reporters, despite the U.S. Supreme Court’s  ruling in Hazelwood School District v. Kuhlmeier. The proposed legislation would guarantee students their First Amendment rights in broadcast and publication. 

August 2016: Legal Clips summarized an article in The State Journal-Register reporting that student journalists attending public schools in Illinois will now be able to publish the stories they feel are important in their school newspapers or other publications without the fear of being censored by school officials. With some limitations, the Speech Rights of Student Journalists Act (SRSJA) offers protections to student journalists they did not previously enjoy.]

Class action suit alleges school district and municipalities are illegally issuing traffic tickets to motorists who allegedly pass stopped school buses

Courthouse News Service reports that a group of Dallas, Texas drivers have filed a class action suit against the cities of Dallas and Carrollton and Dallas County Schools alleging that they are illegally issuing traffic tickets for passing stopped school buses, using photos taken by cameras on the buses’ stop arms. The suit claims that the photographic enforcement and administrative adjudication of school bus stop-arm violations was never authorized by the state and that bills in the Legislature that would have allowed it failed in the past four legislative sessions. The legal complaint states, “No bill, law, statute, or constitutional amendment has ever been passed that would authorize any local government in Texas to enact camera-enforced school bus stop arm ordinances which conflict with statutorily established ‘Rules of the Road’ in Texas.”

The plaintiffs say the Texas Transportation Code grants no authority to local authorities to pass ordinances that conflict with it. “Each defendant city acknowledges in each of the introductory recitals that section 545.066 creates a criminal penalty for passing a school bus while the stop arm is extended,” the complaint states. The suit also cites a nonbinding opinion by the Texas Attorney General’s office in 2002 that concluded that cities could not use automated enforcement equipment to impose a civil penalty for running a school bus.

The suit also claims that the city ordinances “create an irrefutable presumption” that the car owners are guilty and that they were the drivers during the alleged violation. “The only way a registered owner can even attempt to overcome this presumption is if either the vehicle owner is in the business of selling, leasing, or renting vehicles and the vehicle was in fact at the time of the alleged violation being rented, leased or test driven by another person or if the registered owner did not hold legal title to the vehicle at the time of the alleged violation.”

Dallas County Schools declined to comment on the litigation. However, it said in a statement, “We will continue to seek ways to stop drivers from violating the law when it comes to stop arms and keeping children safe when buses are loading or unloading.” Last week the school district fired more than a dozen bus drivers and suspended 229 others for committing traffic violations on the job, including committing stop arm violations and running red lights.

Dallas County Schools said an internal investigation found 483 citations from January 2014 to September 2016 that involved 242 drivers. Dallas County School board president Larry Duncan said at the time that there were “multiple failures at all levels because staff did not follow procedures and there was no oversight.” He said an accountant has been made responsible for following up on every ticket.

Source: Courthouse News Service, 10/12/16, By David Lee

[Editor’s Note: In March 2012, Legal Clips summarized a story from WDSU.com reporting that Jefferson Parish school board had been hit with a class action suit over its use of cameras installed on its school buses to fine drivers who fail to stop when a bus stops. The suit alleged that the cameras were unconstitutional and were installed for no other reason than to generate revenue. The cameras had been on school buses in Jefferson Parish since March 2008, and captured drivers who failed to stop when school buses stopped, on both sides of the road and on divided highways. In the first year alone, around 1,300 tickets were handed out. Individual fines ranged from $300 to $400. The school district said the citations were designed to improve safety.]

Satanic Temple withdraws request to start after school club at Washington state elementary school

The Skagit Valley Herald reports that the Satanic Temple of Seattle (STS) has withdrawn its request to start an “After School Satan Club” at Centennial Elementary School (CES). STS chapter head Lilith Starr said the temple was told by the Mount Vernon School District (MVSD) that because of district-sponsored after-school activities at the school, there was no space for the temple to rent until several hours after school let out. “We have our own school activities and that includes our own after-school program,” said CES Principal Erwin Stroosma. “When that kind of stuff is going on, we don’t allow other organizations to rent the facility.”

The same lack of after-school availability applies to the Good News Bible Club, which is operated by the Child Evangelism Fellowship and which has held a program at the school in the past. The Bible club’s presence at the school sparked the temple’s efforts to form its own program. Because of the same scheduling issues, the Good News Bible Club has also rescinded its request to rent space at the school, Stroosma said. The Good News Bible Club does, however, have rental applications pending at four of the district’s other five elementary schools, MVSD Superintendent Carl Bruner said.

Starr said the Temple will refocus its efforts on opening a club at Point Defiance Elementary School in the Tacoma School District. “I don’t mind that we made a switch,” Starr said. “[The national organization wants] us to go somewhere where we can try to get in as soon as possible.” “It was particularly hard for the Mount Vernon community,” she said. “Obviously we don’t want to tear apart a community, but we do feel our program is appropriate for all children.”

If STS had not withdrawn its application, Stroosma said, the district would have been legally obligated to rent space to the club.

Source: Skagit Valley Herald, 10/12/16, By Kera Wanielista

[Editor’s Note: In September 2014, Legal Clips summarized an article in The Orlando Sentinel reporting that the Satanic Temple (ST), which supports social justice causes and believes Satan is the “eternal rebel against the ultimate tyrant,” planned to hand out literature in Orange County Public Schools (OCPS) later in the school year. According to ST’s co-founder and spokesman Lucien Greaves, “[i]f a public school board is going to allow religious pamphlets and full Bibles to be distributed to students, as is the case in Orange County, Florida, we think the responsible thing to do is to ensure that these students are given access to a variety of differing religious opinions.”

In August 2016, Legal Clips summarized an article in Education News reporting that the Satanic Temple is planning to introduce a new after-school program to select public elementary schools across the nation later this year. Doug Mesner, co-founder of the group, argues that if Christian evangelical groups are already participating in after-school programs, Satanic groups should be allowed to as well.]


Student is challenging Nebraska high school’s refusal to sponsor pro-life student club

The Omaha World-Herald reports that Bridget Christensen, a student at Gretna High School (GHS), is challenging school officials’ refusal to sponsor Dragons for Life (DFL), a chapter of the Students for Life of America (SFLA). Christensen is co-president of DFL. The Thomas More Society (TMS) sent a letter on her behalf claiming the school’s decision is a violation of the First Amendment and the Equal Access Act.

According to school administrators, the club was denied school sponsorship because its topic is a controversial one that’s political and religious. “We’re a public school,” said Superintendent Kevin Riley. “It’s not just anybody’s socioeconomic, religious, political or ideological playground.”

Without sponsorship DFL can meet at the school, but not during school hours. GHS has an unwritten two-tier policy for its clubs. The clubs that the school decides to sponsor are determined by the district’s legal counsel, Riley said. Other clubs, like DFL, are recognized by the school but not sponsored. The recognized clubs can meet outside school hours, but only school-sponsored clubs can meet during school.

The school district’s attorney said all sponsored clubs must serve a school purpose or complement the school curriculum. However, TMS argues that the district isn’t being consistent with that policy. It points out that several of GHS’s sponsored clubs, such as the Chess Club and the Gay Straight Alliance, have nothing to do with curriculum. The letter also alleges that the only non-sponsored clubs at GHS are a Christian club and Dragons for Life.

Riley said there have been a number of overtly political and religious clubs denied sponsorship status over the years. This is the first time a group has challenged the district, he said. Jocelyn Floyd, TMS’s attorney, said the issue here is of “access, not titles.” “What we are asking for is for them to treat (Christensen’s) pro-life club on an equal basis with the other student-led, non-curriculum-related clubs,” she said.

Riley said the district would look into it.“We’re going to have our attorneys thoroughly go through all of our club situations and make sure we’re following the law,” Riley said. “We’ll get this worked out.”

Source: Omaha World-Herald, 10/11/16, By Hailey Konnath

[Editor’s Note: In the World-Herald article Christensen asserts that DFL, a chapter of SFLA, is not a religious organization. SFLA’s website appears to support her contention. The site focuses solely on the issue of  preventing abortion and supporting women facing unplanned pregnancy. However, TMS, which is supporting Christensen in challenging the school district’s policy, makes it clear that its support for pro-life organizations is religion based. Its website states:

The Thomas More Society has assisted thousands of clients including some of the nation’s most renowned pro-life and religious leaders: David Bereit and 40 Days for Life, Lila Rose and Live Action, Joe, Ann and Eric Scheidler and Pro-Life Action League, Troy Newman and Operation Rescue, Former Kansas Attorney General Phill Kline, Catholic Bishops, Catholic Charities, Dioceses, Religious Orders, the Notre Dame Protestors (“ND88”) and many more.

Additional Legal Clips resources on pro-life student clubs:

July 2010, Legal Clips summarized an article in On Point reporting that several pro-life high school students had filed a suit against school officials in New Mexico demanding injunctive relief and the return of rubber fetus dolls that were confiscated. Liberty Counsel, a conservative advocacy group, represented the plaintiffs.

April 2011, Legal Clips summarized a story from KSTP 5 News reporting that a pro-life student club represented by the Alliance Defense Fund (ADF) had filed suit against St. Michael-Albertville School District (SMASD) alleging that it denied the “All Life is Valuable” club (ALIV), a pro-life Christian student group, “club status,” which would allow it to meet at the school. 

February 2012, Legal Clips summarized a story from KSPR ABC33 reporting that a student at Dixon High School (DHS) had filed suit against Dixon R-I School District (DR-ISD) alleging that school officials violated her constitutional rights when they removed her posters promoting a pro-life day of silence. The Alliance Defense Fund (ADF), which represented the student, contended that DHS officials engaged in censorship in violation of the student’s First Amendment rights.

August 2015, Legal Clips summarized an article in Live Action News reporting that Angelique Clark, a student at West Career and Technical Academy (WCTA), had filed suit against Clark County School District (CCSD) and WCTA, alleging that school officials were violating her First Amendment free speech rights by preventing her from forming a pro-life club at school. TMS represented Clark.

September 2015, Legal Clips summarized an article in Reuters reporting that CCSD had entered into a settlement agreement with Angelique Clark.]



State court upholds Ohio Dep’t of Ed’s order that online charter school produce attendance records to justify state funding it received

According to The Columbus Dispatch, Franklin County Common Pleas Judge Jenifer French has upheld the Ohio Department of Education’s (ODE) order that Electronic Classroom of Tomorrow (ECOT), the state’s largest online charter school, produce attendance records to justify $106 million in state funding. The judge said there is “public interest in ensuring our children are receiving the education that our taxpayers are funding.”

Judge French denied ECOT’s motion for a preliminary injunction barring ODE from enforcing its order, rejecting ECOT’s argument that ODE was violating state law and a 2003 signed funding agreement by using log-in records and other data to determine how many full-time students attend the school. The ruling came less than a week after ODE informed ECOT that, based on the state’s attendance audit, the charter school’s reported enrollment last year was inflated by 143% percent. Because of this, the state could ask ECOT to repay more than $60 million of the $106 million it received in state funding last year.

The judge found that ECOT is not likely to succeed on any of its lawsuit claims.  She found that the 2003 funding agreement at the heart of ECOT’s argument against the state was meant to apply only for the 2002 and 2003 funding reviews. Judge French’s opinion stated:

Enforcing an outdated 2003 agreement would be in violation of public policy. The Court finds that if the funding agreement were interpreted in the manner that ECOT suggests, to require the state to continue paying hundreds of millions of dollars per year without any ability to determine whether students are in fact participating in any curriculum at ECOT at all, would violate public policy.

ECOT spokesman Neil Clark said the school will appeal the decision. “The Ohio Department of Education is on a vendetta to close all e-schools by creating an impossible, retroactive standard that no e-school can meet. Just today, ODE issued the death warrants for two other e-schools,” Clark said, referring to attendance audits alleging similar discrepancies that were released by the education department after Friday’s court ruling.

ODE audits charter school attendance records every five years, but this year, state officials took a deeper look at online schools. In the past, ECOT teachers signed sheets certifying for each student that the school “offered” 920.000013 hours of educational opportunities. As long as a student remained enrolled in the school, the state provided about $6,900 per full-time student.

But this year, ODE, backed by Gov. John Kasich, asked online schools to provide log-in durations and offline documentation to prove that students were getting the 920 hours of learning opportunities required by the state. In a sample of ECOT student records, the school reported 414 full-time students, but based on log-in duration records, the department tallied only 171 students because most fell well short of 920 hours.

The Ohio Alliance for Public Charter Schools hopes the ruling clarifies what is expected of e-schools. “Accountability and transparency are key aspects of quality charter schools, and attendance is an important component of student engagement,” said RaShaun Holliman, CEO and president of the alliance. “Ultimately, it is in the best interest of the students to ensure that they are receiving the quality education they deserve in their public charter school.”

ECOT has argued that under state law, enrollment, not attendance, is what matters in determining state funding. School attorneys said the state improperly created a rule to require log-in data, and the requirement violated the signed 2003 funding agreement between ECOT and the state that spells out how attendance audits would be conducted. ODE and ECOT signed the unusual agreement in January 2003 after the state attempted to recover millions of dollars from ECOT based on inflated attendance in 2000. The agreement did not state how long it would be in effect, but French said that based on exchanges between ECOT and the department prior to its signing, the parties intended it to apply only to the 2002 and 2003 attendance reviews.

Source: The Columbus Dispatch, 10/1/16, By Jim Siegel and Catherine Candisky

[Editor’s Note: By way of background: In July 2016, Legal Clips summarized a story from WKBN27 reporting that ECOT had filed suit against ODE, seeking to prevent ODE from conducting an audit of the school’s attendance records. The state determines how much funding the school will receive through their students’ attendance. In August 2016, Legal Clips summarized an article in The Columbus Dispatch reporting that Judge  French had denied ODE’s motion to dismiss a suit filed by ECOT challenging ODE’s ongoing attendance audit. ODE argued that ECOT prematurely filed the suit before any decision had been made on how its ongoing attendance audit would impact the school’s state funding, a decision that can be appealed to the state Board of Education (OBE).]


Suit seeks to prevent local prosecutor in Iowa from bringing criminal sexting charges against high school student

Marion County Attorney Ed Bull is threatening to file a sexual exploitation charge against a female high school student who sent two photos of herself to a classmate, even though the pictures contain no nudity, says The Des Moines Register. The student, who has filed a lawsuit against Bull, contends that he has said she could have to register as a sex offender if a juvenile court judge found her delinquent for sending the Snapchat photos.

The student, along with her parents, is asking a federal judge to issue an injunction that would block Bull from prosecuting her. The suit alleges  the county attorney is trying to punish behavior that wasn’t criminal and enforce discipline that would be better handled by the family. It also contends the U.S. Constitution protects free speech and expression, and should protect the student from punishment if the images are not obscene.

According to Rita Bettis, legal director for the American Civil Liberties Union of Iowa, “[it] is clearly a violation of the First Amendment for a prosecutor to credibly threaten to bring criminal charges for protected speech and expression.”  Bettis added,”[w]hile courts have held that child pornography is not protected under the First Amendment, in this case, there appears to be a real factual question about whether the image itself was child pornography.”

The photos were gathered by law enforcement earlier this year amid a “sexting” investigation that uncovered nude and semi-nude photos sent by several male and female students at the high school. Sexting involves sending sexually explicit photographs or messages via cell phone or other mobile devices. The photos came to light earlier this year when two male students were caught printing photos in the Knoxville High School library.

The lawsuit argues that to meet the definition of “nudity,” which could warrant criminal prosecution under Iowa law, a photo would have to show “any part of the human genitals or pubic area or buttocks, or any part of the nipple of the breast of a female.” The teenager was similarly not doing anything in the photos that could be considered a “sex act” under Iowa law, the lawsuit claims.

Bull has threatened through a lawyer to prosecute the teenager in juvenile court unless she participates in a diversion program that was completed by other students who were caught in the investigation. Glen Downey, attorney for the student and her parents, said the parents are taking the matter to a federal judge because they feel their daughter is being “lumped in” with other students who actually sent nude photos. “They consider this a personal matter that requires their parenting skills, not criminal court intervention,” he said.

Bettis said it “defies common sense” to punish a girl with a sexual exploitation of a minor charge when she is both the offender and victim in the scenario. “These laws weren’t intended to apply to children and we’re doing a lot more harm than good in these situations,” said Nicole Pittman, director of the Center on Youth Registration Reform. “And resources are being used to prosecute a young woman and harm her for the rest of her life.”

Bull defended his office’s handling of the case in a statement released to the press. He also said he would make a decision in handling the student’s case “without regard” to the lawsuit. “This lawsuit is the result of efforts made by my office to respond to a situation where numerous juveniles had exchanged sexually explicit photographs,” Bull said. “Rather than take every juvenile to court I looked for a solution that would help them learn from their mistakes and hopefully prevent their behavior from being repeated, while allowing them to avoid having a criminal or juvenile conviction or even a charge on their record.”

Alan Ostergren, president of the Iowa County Attorneys Association, also said that Bull made the appropriate move by trying to convince the girl to enter a diversion program. He also doubted that a federal judge would look to intervene in the state proceedings before any charges have been filed.

Source: The Des Moines Register, 9/28/16, By Grant Rodgers

[Editor’s Note: In December 2015, Legal Clips summarized an  Associated Press report in Education Week reporting that Fremont County District Attorney Thom LeDoux  announced that none of the more than 100 students involved in a sexting scandal at Cañon City High School (CCHS) would be facing criminal prosecution. LeDoux said the investigation into the scandal failed to show that any adults were involved. None of the 351 images were posted to the Internet, and there was no evidence of coercion or bullying, LeDoux said.]


U.S. Supreme Court unlikely to decide whether to review Colorado private school voucher case until late Justice Scalia is replaced

The Colorado Independent reports that it appears the U.S. Supreme Court’s consideration of the suit over the Douglas County School District’s (DCSD) private school voucher program is on hold. Quoting Nina Totenberg, who covers the Court for National Public Radio, the paper indicated that it is likely that the Court will avoid highly controversial cases until Congress approves a replacement for the late Justice Scalia. As a result, the Court may  not make a decision on whether or not to even hear the voucher lawsuit until 2017.

In 2011, the Douglas County school board approved a policy, which allowed district residents to obtain taxpayer-funded vouchers that could be used for any private or religious school, even if the school wasn’t in Douglas County. Two years later, Taxpayers for Public Education, a nonprofit formed to fight the voucher program, filed a lawsuit claiming it was illegal for taxpayer funds to pay for private and religious education.

The Colorado Supreme Court ruled that the voucher program, called Choice Scholarship, was unconstitutional because the Colorado constitution prohibits school districts from aiding religious schools. In December 2015, DCSD decided to appeal the decision to the U.S. Supreme Court.

DCSD has since revised the voucher program, eliminating religious schools from the scholarship program and renaming it the Choice Pilot Program. However, that earned the district two more lawsuits: one, from Taxpayers for Public Education, criticizing the use of taxpayer money for private schools; another, from a coalition of religious schools, challenging the district’s blocking such schools from receiving taxpayer-funded vouchers. The latter was rejected by a federal judge in June 2016, while the former was put on hold in August 2016 by a state district court.

According to Totenberg, the Supreme Court is likely to remain one justice short for most of the 2016-17 term. Senate Majority Leader Mitch McConnell (R-KY) has said he would not allow a Supreme Court nominee to be voted on by the Senate until the next president is sworn in. If the Court, which is tied 4-4 ideologically, were to take up the voucher lawsuit and remain deadlocked at 4-4, the Colorado Supreme Court’s decision would stand.

Source: The Colorado Independent, 10/7/16, By Marianne Goodland

[Editor’s Note: As reported in Legal Clips in March 2016, President Obama nominated Merrick B. Garland, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, to fill the U.S. Supreme Court seat left vacant by the Justice Anton Scalia’s death. The editor’s note to the Clips summary points out that there is speculation that if Hilary Clinton wins the presidential election, the U.S. Senate may vote in the “lame duck” session of the Senate to confirm Judge Garland.

Additional background on the Colorado voucher case:

In July 2015, Legal Clips summarized the Colorado Supreme Court’s decision in Taxpayer for Pub. Educ. v. DCSD in which  six of the seven justices held that the plaintiffs lacked standing to bring their suit challenging Douglas County’s Choice Scholarship Pilot Program (CSP) under Colorado’s Public School Finance Act of 1994 (PSFA). A majority of the court, four of the seven,  also reversed the judgment of the Colorado Court of Appeals overturning the trial court’s order permanently enjoining Douglas County School District (DCSD) from operating the CSP, and remanding the case to the trial court to reinstate the permanent injunction of the CSP. However, only a plurality of the state supreme court held that the CSP violates article IX, § 7 of the Colorado Constitution, which prohibits using public money to fund religious schools. The other justice, who dissented from the majority’s holding that the plaintiffs lacked standing under PSFA, concurred in the judgment that the permanent injunction should be reinstated, but on the ground that the CSP violated PSFA.

In March 2016, Legal Clips summarized an article in The Denver Post reporting that the DCSD board, in a 4-3 vote, approved a revised private school voucher program that replaced the previous program struck down by the Colorado Supreme Court. The revised program excludes religious schools from participating in the program.

In April 2016, Legal Clips summarized an article in The Denver Post reporting that the Institute for Justice (IJ) had filed suit in federal court against DCSD claiming the school district’s revised private school voucher program discriminates against  families seeking to enroll children in religious schools. The suit alleges the revised School Choice Grant Program, which was narrowly approved by the school board, is discriminatory because it does not allow religious schools to participate in the program.

In June 2016, Legal Clips summarized an article in The Denver Post reporting that a federal district court in Colorado dismissed a suit filed by the Institute for Justice (IJ), on behalf of a group of parents, alleging that Douglas County School District’s (DCSD) revised its private school voucher program, which excludes religious schools from participation in the program, discriminates against them based on their religious beliefs. The court refused to expand a recently created DCSD voucher program to include the religious schools that had been excluded as part of a revamped effort to let students attend private schools using public funds.]

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