Illinois appellate court concludes disabled students enjoys statutory right to have service dog accompany him in school

The Appellate Court of Illinois, Fourth District, has ruled that a student with autism has the right under Illinois law to have his service dog attend school with him. It concluded that the dog met the statutory definition of “service animal” and, therefore, the statute on its face permits the dog to attend school with the student. Villa Grove Community Unit School District No. 302 (VGCUSD) denied the parents of Kaleb Drew’s request that a dog trained by the Autism Service Dogs of America be allowed to attend with Kaleb on the ground the dog did not met the statutory definition of “service animal.” The parents filed suit against VGCUSD  in the Circuit Court of Douglas County (trial court), claiming that  § 14-6.02 of the School Code (105 ILCS 5/14-6.02) permits Kaleb to bring the dog with him to school. VGCUSD filed a motion to dismiss the suit on the grounds that: (1) the parents had failed to exhaust their administrative remedies before bringing the suit; and (2) the dog did not met § 14-6.02′s definition of a “service animal.” The trial court rejected both grounds, found in favor of the parents and ordered VGCUSD to permit the dog to accompany Kaleb to all school functions, both in and out of the classroom.

The appellate court affirmed the trial court’s decision. It acknowledged that as a general rule in Illinois parties may not seek judicial relief until they have exhausted their administrative remedies. However, there is an exception to the exhaustion ruled if ”if the administrative agency’s expertise is not involved.”  Because the administrative process relevant to disabled students was established in accordance with the federal Individuals with Disabilities Education Act, it stated that the sole question determinative of whether exhaustion was excused was whether [the dog] constitutes a service animal under the Illinois School Code, a matter irrelevant to any educational benefit he provides K.D. The appellate court determined that resolving § 14-6.02′s definition of “service animal” was not a matter within school administrators’ expertise. It found, instead, that the question was one of statutory construction that fell well within the trial court’s jurisdiction. It rejected VGCUSD’s reliance on Cave v. East Meadow Union Free School District, 514 F.3d 240, 245 (2d Cir. 2008), stressing that the reasoning in that case relied on federal statutes, ”none of which included a service-animal definition similar to that contained in the Illinois School Code at issue in this case.”

The appellate court rejected the arguments put forth by the school district  that Kaleb’s dog was not a “service animal” on two grounds: ”(1) the record before us on appeal establishes Chewey provides some benefit to K.D.; and (2) the District’s remaining arguments reach beyond the plain, unambiguous meaning of the statute.” The dog constituted a “service animal,” the court explained, within the plain meaning of the statutory language that states: “Service animals such as guide dogs, signal dogs[,] or any other animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions ….” It concluded that the “arguments exceed the plain meaning of the statute” because “[r]egardless of whether Chewey’s behavior varies from his training, section 14-6.02 does not specify service animals must behave perfectly at all times” and ” … the statute does not require evaluating the disabled child’s educational and behavioral performances before labeling the animal assisting the child a “service animal.” Lastly, the appellate court found unpersuasive VGCUSD’s assertion that Kaleb–not an adult handler–must control the dog for the it to’accompany’ Kaleb because the plain meaning of  “accompany” does not encompass “control.”

K.D. v. Villa Grove Cmty. Unit Sch. dist. No. 302

[Editor's Note: In January 2010, the Appellate Court of Illinois, Fifth District, upheld a lower court’s decision to grant a preliminary injunction compelling a school district to allow a student with autism to bring his service dog to school. It concluded as, the Fourth District did, that the exhaustion of administrative remedies requirement was excused. In regard  to the application of the service animal statute, it found that the evidence presented in the trial court “was sufficient to raise a fair question” that the dog fell under the statute’s definition. It also rejected the school district's contention that the service animal statute requires an educational benefit. A summary of  the opinion, with links to background on  the K.D. v. VGCUSD decision and the U.S. Court of Appeals for the Second Circuit's (NY, VT, CT) decision in Cave, is available below.]

NSBA School Law pages on Kalbfleischv. Columbia Cmty. Sch. Dist. Unit No. 4

Pennsylvania parent seeks religious exemption for son from school’s random drug testing program

Janet Malin, whose son attends Lampeter-Strasburg High School, is seeking a religious exemption from the district’s random drug testing program, says Lancaster Online.com. Malin  and her son are members of the Religious Society of Friends, also known as Quakers. She asserts that “[t]he practice of integrity leads us to live our lives in accordance with society’s laws and to be truthful and honest in every aspect of our lives.” The district policy, in its second year, requires students who drive to school or participate in extracurricular activities to sign a form agreeing to be subjected to random drug testing. The high school denied Malin’s son a parking permit after he refused to sign the form. “It is my belief that requiring adherence to this policy calls into question our practice of a core tenet of our religion.”

Board President James Byrnes said the policy was passed as a way for students to deal with peer pressure. He said the board would get an opinion from its solicitor. However, Malin was not the first Quaker parent in the county to request an exemption. Solanco High School graduate Gilbert Ambler, who attended Solanco High School, was barred from extracurricular activities for two years when he refused to agree to comply with a similar policy and his parents’ request for an exemption was denied. However, Ambler’s father, John, decided his family and their lawyers would work with Solanco and its solicitor and not take legal action. The family ultimately received an exemption, although it does not specifically mention religion.

Source: Lancaster Online.com, 9/21/10, By Cindy Hummel

[Editor's Note: Schools throughout the nation have similar student drug testing policies that are based on U.S. Supreme Court precedent that holds that suspicionless, random drug testing for students participating in extracurricular activities passes Fourth Amendment muster. However, a number  these drug testing policies have been challenged on state constitutional bases.

Recently, a California appellate court upheld a lower court’s preliminary injunction barring a school district from enforcing its student drug testing policy on the grounds that the student opposing the policy was likely to succeed on the merits of the state constitutional challenge. The California constitution provides for an explicit right to privacy.  A summary of the opinion is available below.

NSBA Legal Clips archive on Brown v. Shasta Union High Sch. Dist.

National study finds public schools in Northeast and Midwest metropolitan areas are the most segregated

The Institute on Urban Health Research at Northeastern University’s Bouvé College of Health Sciences, reports the Boston Globe, has issued a report titled Segregation and Exposure to High‐Poverty Schools in Large Metropolitan Areas: 2008‐09. Of the 100 large metropolitan regions examined, the study found that the metropolitan areas in the Northeast and Midwest dominated the rankings for the most segregated schools. The authors believe this is a result of  segregated housing patterns and the centuries-old practices of school districts run mostly by individual cities and towns, rather than counties. The report also found that nationwide black students tend to be more highly segregated than their Latino peers. According to authors, the fragmented approach to public education has great consequences for black and Latino students, who often end up at schools with low achievement, less parental involvement, high rates of absenteeism, and low rates of graduation. “Many people [in the Northeast and Midwest] have the expectation they can buy into a good school district, entitling them to almost a private level of schooling,’’ said Nancy McArdle, a coauthor of the report. “It’s antithetical to the idea of public schools.’’

The report notes that much of that effort to close a stubborn achievement gap between students of different races, ethnicities, and income levels has focused on work between the nation’s cities and their respective state education agencies. But the report’s authors add another potential and often overlooked partner to that mix: suburban schools, and the resources they could offer. Among the report’s recommendations: allow students in failing schools to transfer to higher-performing schools outside their communities; create a student-assignment system that encompasses multiple school districts; supplement existing school systems with regional schools that mix urban and suburban students; or expand voluntary desegregation programs. Another of the recommendations calls on state and local leaders to build more affordable housing in the suburbs and reinvest in depressed city neighborhoods to create more demographically diverse communities.

School districts across the nation have been confused about the extent to which they can use race as a factor in assigning students to schools. That’s because the US Supreme Court three years ago invalidated voluntary desegregation plans in Seattle and Louisville, Ky. The ruling suggested race could not be the basis for assigning students to schools, but civil rights activists have said race can still be one of several factors.

Source: Boston Globe, 9/20/10, By James Vaznis

[Editor's Note: Although the Boston Globe article focuses on the study’s results that pertain to the Boston and Springfield, Massachusetts areas, the study examined patterns nationwide. The report  “describes patterns of school segregation and poverty concentration of 30,989 public primary schools in the 100 largest metropolitan areas for the 2008‐09 school year,” and is available at the first link below.

As the Globe article points out, school districts have struggled to comply with the Supreme Court’s 2007 ruling, a summary of which appears at the second link below. In order to avoid using race, even as one of several factors, in assigning students to schools, some districts have developed plans based on socio-economic factors. However, even these student assignment plans have been attacked. The News & Observer has been following Wake County (NC) school board’s decision to scrap its nationally acclaimed student assignment plan, which used socio-economic factors, in favor of  assigning students to neighborhood schools. In August, a News & Observer story carried in Education Week reported that a complaint by the local chapter of NAACP had triggered a investigation of Wake County’s high schools by its accreditation agency. A summary of the article is available at the third link below.  NAACP has recently made moves toward filing suit in that case; stay tuned.

Meanwhile, in September the Wilmington Journal reported that a member of the New Hanover County Public School Board (NC), who supported the board’s decision to implement a neighborhood school student assignment plan,  has asked two state legislators to “work to overturn” a provision in North Carolina law that prohibits school boards from implementing policies that contribute  ”…to increased segregation of schools on the basis of race or socioeconomic status.”  A finding that the New Hanover County Public Schools (NHCPS) has violated that provision could cost the district over $765,000 in state funding.  A summary of the article is available at the fourth link below.

Segregation and Exposure to High‐Poverty Schools in Large Metropolitan Areas: 2008‐09 report

NSBA School Law pages on PICS v. Seattle Sch. Dist. No. 1

NSBA Legal Clips archive on Wake County accreditation investigation

NSBA Legal Clips archive on Hanover County student assignment plan

New Jersey school district bans baked goods from student birthday celebrations at school

The Cherry Hill Courier Post reports that the Ocean Township School Board has adopted a policy prohibiting students from bringing in cupcakes, brownies, and other baked goods to celebrate their birthdays in the lower grades. According to Christopher Lommerin, students will still be able to celebrate the day with classmates — the new policy focuses on crafts and games — but the new policy eliminates the longstanding practice of parents bringing in snacks,  even healthy ones, for a birthday celebration in the classroom.

While parents acknowledge the policy was put in place in part to address the problem of student food allergies, some agree with school board member Jacqueline Von Schmidt’s suggestion that an alternative to totally eliminating birthday food items could be found. While the superintendent indicated that he was willing to discuss a possible compromise position, he said, ”I’m willing to talk about it further, but last year it was out of hand. There was food everywhere, and how do you control that when you have 8 percent of your population with food allergies?”  The article also notes school officials’ concerns about sending a mixed message about childhood obesity by allowing sugary treats in school.

Source: Cherry Hill Courier Post, 9/22/10, By Bob Vosseller

[Editor's Note: NSBA's School Health Programs has announced that registration is now open for a free webcast on food allergies and schools that it is producing in partnership with the Missouri School Boards Association’s Education Solutions Global Network. Food Allergies and Schools:  Keeping Students Safe and Ready to Learn will provide valuable information and insight to school board members, superintendents, and other administrators, as well nurses, teachers and all those who play essential roles in carrying out the policies and practices that keep all students safe and ready to learn.

The webcast will feature a comprehensive panel of presenters, such as national-level experts and legal counsel, school board members and other critical school personnel, and parents and students.  Among the topics to be discussed:

•  Why you should act to address food allergies in schools;

•  What parents and students with life-threatening food allergies experience and need;

•  How food allergies have been successfully addressed by schools and recommendations for concrete policy and practice actions; and

•  Where you can find additional resources to help you get started in enacting your own plans.

This multimedia program will be broadcast by ESGN (www.esgn.tv) – the Missouri School Boards Association’s production brand.  Support for the webcast is provided by the Centers for Disease Control and Prevention.

Food Allergies and Schools:  Keeping Students Safe and Ready to Learn will take place on Tuesday, November 9, 2010 from 2-3:30 EST, and is free but registration is required.  To register, click here.]

Parent’s attorney charges sixth graders’ field trip to mosque violated constitution

The parent of of Wellesley, Massachusetts student, whose sixth grade class visited a Boston area mosque and participated in an Islamic prayer service, charges that school officials violated the students’ constitutional rights by taking them to any house of worship. According to attorney Robert N. Meltzer, who is representing the parent, when the Wellesley School District (WSD) took the students to a Roxbury mosque last May, the trip violated the students’ First Amendment rights because they were too young to consent to the religious message. He also pointed out that even if some of the students had not bowed their heads during the prayer service,  the trip would still have been inappropriate. “We view this as a very simple constitutional law case,’’ said Meltzer, adding that he will file a federal class-action lawsuit against the school district if the disagreement cannot be resolved. “We believe that a school cannot bring middle-school children to any house of worship. Period.’’

Bella T. Wong, WSD’s superintendent, apologized  for the participation of students in the prayer service, adding that teachers would be given clearer guidance in the future about acceptable behavior on field trips. However, she said she still believes that taking field trips to supplement classroom learning is a valuable educational experience.  Parents had to sign consent forms allowing their children to visit the mosque; the parents of one student declined to give permission, she said. Wong said no decisions had been made yet about field trips for the religion class next year. She said she had not spoken to Meltzer, but doesn’t share his belief that any field trip to a house of worship is unconstitutional.

Meltzer said he is drafting a letter to Wellesley’s town counsel, laying out remedies for the practice he believes is unconstitutional. He did not elaborate, but said he will send the letter within two weeks. Albert Robinson, Wellesley’s town counsel, said he spoke to Meltzer briefly about the issue. Robinson said he didn’t know of any legal precedents that would ban schools from taking students to a place of worship, and although allowing some to participate in prayer was wrong, he didn’t think the school district had erred in scheduling the trip to the mosque.

Source: Boston Globe, 9/22/10, By Kathleen Burge

[Editor's Note: The Boston Globe article also discusses Americans for Peace & Tolerance (APT), another player in the controversy.   According to the Globe, APT sparked the controversy by arranging for a chaperon to shoot video of the field trip, then publicizing the video footage to the Islamic Society of Boston Community Center. APT has been an outspoken critic of the mosque since it opened in 2009. Meltzer disputed the notion that his client had recorded the mosque visit at the behest of APT. APT's website is available at the first link below.

In a 2005 unpublished opinion, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit (CA, OR, WA, AZ, MT, ID, NV, AK, HI, GU, MP)  ruled that a California school district's use of role-playing in a world history class to teach middle school students about Islam does not violate the First Amendment's Establishment Clause. A summary of the opinion is available at the second link below.]

APT website

NSBA School Law pages on Eklund v. Byron Union Sch. Dist.

Nebraska school district revises school dance attendance policy after problems with sexually suggestive dancing

Southwest High School in Lincoln, Nebraska  has implemented a new policy this school year stating that all school dances except prom are for Southwest students only, says the Lincoln Journal Star. The new policy stems from a problem all Lincoln Public Schools have been dealing with for years: dirty dancing. “Last year’s homecoming dance was unacceptable,” said Southwest Principal Rob Slauson. “It was a really large crowd, and many students were reluctant to modify the way they were dancing.” At any given dance, a select group of students don’t just dance, they grind — dancing closely, sexually. School officials and parent chaperones tell students to clean it up. Some listen, some don’t. Getting students to dance appropriately is more difficult, Slauson said, when the dancers aren’t Southwest students. It’s tricky to reprimand a student who doesn’t attend the host school — or doesn’t attend school at all.

Some Southwest students say they’ll show how they feel about the new policy by not going to the homecoming dance. Some of the students said there’s talk of a “fall ball” replacement dance for those boycotting homecoming. Slauson said students protested in a similar fashion last year by holding an unofficial, separate prom, one without dance or dress code restrictions. He doesn’t blame students for being mad. He particularly feels bad for seniors who can’t bring longtime significant others to their last homecoming. Some of them have even half-jokingly attempted to bribe him to let their boyfriends or girlfriends attend. “I understand they’d like it to be different,” he said. “I’d like it to be different. But we’re going to keep working on this until our students meet the standard of acceptable behavior.”

Source: Lincoln Journal Star, 9/20/10, By Micah Mertes

[Editor's Note: In May 2005, the Arizona Republic reported that school administrators in Arizona were taking innovative steps to prevent students from engaging in sexually suggestive dancing, such as "freak dancing," at school dances. One of those steps involved hosting semi-formal and formal dances on the theory that if students are required to dress in an adult fashion they will behave like adults. A summary of the article is available top COSA members at the link below.]

NSBA COSA archive on school dances

Ohio school district’s anti-bullying efforts in question after five student suicides in the past year

The Cleveland Plain Dealer reports that even after Mentor High School adopted an internationally known bullying prevention program, five students committed suicide. The families of two of the students have filed lawsuits contending bullying played a role in all five of the deaths. The most recent lawsuit, filed last month in federal court, revives the debate about bullying in schools and its connection to suicide. The report asks:  Do the deaths suggest bullying inside Mentor High School and its feeder schools was out of control? And if a problem existed, has it been fixed? Or does simply accusing the schools of being soft on bullies obscure other factors that lead to teenage suicide?

The Mentor school district does acknowledge that bullying has been a problem. Nonetheless, it has taken steps designed to reduce harassment and intimidation in its halls and classrooms. The high school is working with the Lake County Suicide Prevention Coalition and is creating a program to help students with mental health issues. In 2007, the district adopted the Olweus Bullying Prevention Program system-wide. Al Mihok, president of the Mentor school board, declined to discuss the most recent lawsuit. He also would not talk about a similar suit filed last year by Bill and Jan Mohat, whose 17-year-old son Eric shot himself in early 2007 after enduring months of bullying at Mentor High. ”It’s just a frustrating experience,” Mihok said. “We don’t feel the lawsuits were justified.” Mihok did say, however, that he’s troubled by students using Twitter, text messaging and other social media to harass each other after school hours, a problem Mentor police have said the schools cannot legally address. “It’s a touchy issue we’re dealing with,” he said.

Both lawsuits suggest three other teen deaths stemmed in part from bullying, although the students are not identified by name and their families are not involved in any legal action against Mentor schools. In two of the other cases, people who knew the teenagers believe factors other than bullying were primarily responsible for their deaths. Madelyn Gould, a professor of clinical epidemiology in psychiatry at Columbia University, said programs to prevent bullying should really start in preschool, with children taught to show each other respect while learning ways to negotiate conflicts and cope with stress. She also said schools could do more to prevent suicide, but that they don’t have the resources. Sometimes, schools are afraid that if they identify a student with a problem, they then become liable if something happens to that student. Gould said she understands the pain and frustration of families who have lost a child to suicide, especially if they sought help and didn’t get it. But she doesn’t think suing the school is a remedy. Suicide is so multifaceted that it becomes counterproductive to make a school the scapegoat, she said. It’s better to search cooperatively for answers.

In May of this year, the Mentor school board adopted a formal policy on bullying. It states that any written, verbal or physical acts carried out more than once and meant to inflict mental or physical pain on another student are unacceptable. That includes physical violence, name calling and even excluding someone from a peer group.

Source: Cleveland Plain Dealer, 9/20/10, By Peter Krouse

[Editor's Note: Unfortunately student suicides often serve as the impetus for states and school districts to beef-up their anti-bullying efforts.  Massachusetts recently enacted anti-bullying legislation following the much-publicized suicide of high school student Phoebe Prince.  The Boston Globe reported in August that the Massachusetts Department of Education (MDE) has released a model anti-bullying plan . A summary of the articles appears below.  In February 2008, USA Today reported the suicides of a 13-year-old Missouri girl who was the victim of an Internet hoax and a 13-year-old boy in Vermont bullied online by peers who spread rumors that he was gay—along with complaints from teenagers, parents and educators—are spurring an increasing number of state lawmakers across the country to draft legislation giving schools more power to do something about bullying over the Internet. A summary of the article is available at the second link below.]

NSBA Legal Clips archive on Massachusetts guidance for school districts on bullying policies

NSBA School Law pages on suicides spurring bullying legislation

School district’s policy that allows officials to deny students participation in extracurricular activities based on off-campus conduct violates New Jersey law

The acting New Jersey Commissioner of Education has ruled that a school district’s regulation that allows its board to bar a student from participating in extracurricular activities based on the student’s off-campus conduct exceeds the authority given to school districts under the state administrative code. She concluded that the policy was unlawful and ordered the district to revise the policy so that it is in compliance with the state administrative code. The regulation in question was adopted by the Ramapo Indian Hills Regional High School District (RIHRHSD) in an effort to curtail student drug and alcohol use, but did not limit its reach to drug or alcohol-related conduct. Regulation 6145 (Reg 6145) allows the school board to deny participation in extracurricular activities based on student conduct away from school grounds.

The parents of a student challenged Reg 6145 before an administrative law judge (ALJ), arguing that the regulation violates both the state and federal constitutions, and a number of state laws and regulations. The ALJ determined that Reg 6145 was ultra vires (i.e., beyond the power conferred upon the school district by law) and, therefore, enforcement of the regulation was unlawful. The ALJ also concluded that Reg 6145 violated parental rights guaranteed by the U.S. Constitution’s Fourteenth Amendment. As a result, the ALJ struck down the regulation.

The Commissioner upheld the ALJ’s recommended decision that Reg 6145 is unlawful. However, because she struck down the regulation on state statutory grounds, the Commissioner did not address the state or federal constitutional arguments. The Commissioner focused that part of Reg 6145 that allows school officials to bar a student from participation in extracurricular activities for off-campus conduct that constitutes a criminal offense or juvenile delinquency as defined by law.  The Commissioner acknowledged that RIHRHSD has an “obligation to establish a code of conduct for students,” and that its “desire to limit drug and alcohol abuse is a reasonable objective.” She also concluded that a school district ”under certain circumstances … may deny participation in extracurricular activities.” The Commissioner, however, pointed out that the state administrative code “place[s] limits on a board’s authority to deny participation in extracurricular activities for conduct that occurs off school grounds that is unrelated to a school event.”

The Commissioner found, based on 6A:16-7.6(a) of the state administrative code, that school districts may discipline students for off-campus conduct only when: (1) it is reasonably necessary to safeguard the physical or emotional safety or security of other students, staff or school grounds; and (2) the conduct in question ”materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” Finding, contrary to RIHRHSD’s assertion, that denying a student participation in extracurricular activities constitutes disciplinary action, the Commissioner found that Reg 6145 must satisfy the requirements of 6A:16-7.6(a). She concluded that the regulation not meet the requirements.

The ”plain language of Regulation 6145 encompasses too many potential conduct violations that would not meet the elements of N.J.A.C. 6A:16-7.6(a),” the Commissioner explained.   While the purpose of the regulation is to deter drug and alcohol abuse, Reg 6145 can be violated where a student is charged with any violation of the state’s penal code or any applicable municipal codes or ordinances. She emphasized that it would be an unreasonable stretch to discipline a student for such violations under the guise of protecting the well-being of other students or staff. Lastly, the Commissioner found that even though Reg 6145 contains a due process provision, school officials are free to impose a suspension from extracurricular activities without considering the mandates of 6A:16-7.6(a). She stated: ”It is important to recognize that the regulations [6A:16-7.6(a)] clearly distinguish between a board’s authority to impose discipline for conduct that occurs on-site or at a school event as opposed to conduct that is completely unrelated to the school system.”

G.D.M. v. Bd. of Educ. Ramapo Indian Hills Reg. High Sch. Dist., No. 225-9/09 (N.J. Comm. Educ. Sept. 13, 2010)

[Editor's Note: In January 2010, The Courier Post reported that a  New Jersey trial level court had dismissed a similar claim.  The trial court told a Haddonfield Memorial High School student challenging Haddonfield  Borough School District's policy on off-campus drug and alcohol use that she will have to continue her battle before the state commissioner of education.  The court dismissed the unidentified student's request for a temporary injunction prohibiting the school district from enforcing its 24/7 policy because the courts did not have jurisdiction over school policy disputes. It said that all administrative options must be exhausted before the case lands in court. A summary of the article is available below.]

NSBA School Law pages on Haddonfield policy suit

Student suspended for wearing nose ring claims school officials violated religious rights

The Associated Press reports that a high school student in North Carolina was suspended because her nose ring violates the school district’s dress code. Ariana Iacono, a student at Clayton High School, and her mother, Nikki, belong to the Church of Body Modification, a small group unfamiliar to many in rural North Carolina, but one with a clergy, a statement of beliefs and a formal process for accepting new members. The American Civil Liberties Union of North Carolina (ACLU-NC) has entered the fray in support of Iacono. ACLU-NC officials have contacted Johnson County school system officials, raising concerns that the rights of the Iaconos are being violated by the suspension.

The Iaconos contend that school district officials are themselves violating the dress code because it allows exemptions on religious grounds and, instead, are setting themselves up as judges of what constitutes a "real" religion. According to Nikki Iacono, when she asked school officials how they could go about establishing a “sincerely held religious belief,” officials said “that if we were Hindu, or she were Muslim, it would be different." A Johnston County schools spokeswoman declined to comment on the situation, saying it’s against the law to publicly discuss a particular student’s disciplinary matters.

Richard Ivey, the Iaconos’ Raleigh-based minister in the church, believes it’s a case of officials dismissing something unfamiliar. "They’re basically saying, because they don’t agree and because they choose not to respect our beliefs, that it can’t be a sincerely held religious belief," he said. Ivey describes the church as a non-theistic faith that draws people who see tattoos, piercings and other physical alterations as ways of experiencing the divine.  Sally Gordon, a professor who focuses on Constitutional law and religious issues at the University of Pennsylvania, said schools have the right to issue neutral rules on dress as long as there’s a good reason for it and it does not target a specific religion. But she said the school district could run into a problem with its religious exemption. The Johnston County schools dress code policy prohibits several types of facial jewelry but does allow officials to make accommodations for sincerely held religious beliefs. "One of the remarkable things about religious freedom is that people have all kinds of beliefs that look to others as bizarre but make internal sense to them," Gordon said. "We really can only claim to be a country that respects religious liberty if we respect the variety of beliefs that exist in the country — both new and old."

ACLU-NC’s legal director Katy Parker believes the school is on shaky ground. "We do think she has a right to wear her nose ring," Parker said. She acknowledged students’ free expression rights are limited at schools, but contends  a legal category known as a "hybrid right" overrules those curbs. Essentially, the Iaconos are arguing that Ariana’s right to free expression and Nikki’s right to raise her daughter as she wishes are being abridged.

Source: Associated Press, 9/16/10, By Tom Breen

[Editor’s Note: In October 2009, the Salt Lake Tribune reported that a Sikh student who had her nose pierced in order to honor her heritage, was suspended by Bountiful Jr. High School because the dress code forbids body piercing, with the exception of ear lobes. A school district spokesman said the piercing would have been allowed if it were done in religious observance; but based on advice from a local Interfaith Roundtable, "we determined piercing is more of a cultural practice, not a religious [tenet]." However, Rajan Zed, chairman of the Indo-American Leadership Confederation, disputed that assertion, saying the distinction is more hazy than that. He said, "This teenager sincerely believed that wearing a nose stud was part of her culture and religious heritage. The school is denying her the right to freely express that identity."A summary of the article is available at the first link below.

Meanwhile, in a 2-1 split, a U.S. Court of Appeals for the Fifth Circuit (LA, TX, MS) three-judge panel ruled in July that a school district violated a male Native American student’s rights under the Texas Religious Freedom Restoration Act (TRFRA), even though the district offered the student an exemption from its grooming policy barring male students from having long hair, because the exemption’s  restrictions on the manner in which the hair could be worn substantially burdened the student’s free exercise of religion without serving any compelling governmental interest. The panel did not address the federal constitutional issues raised in the student’s suit because the case could be disposed of on state grounds, i.e. TRFRA. A summary of the opinion is available at the second link below.]

NSBA School Law pages on Utah nose piercing suspension

NSBA Legal Clips archive on A.A. v, Needville Indep. Sch. Dist.

Hawaii teachers file suit over changes to healthcare plan

Hawaii public school teachers have filed suit  in state court to block changes in their health coverage, alleging that the state’s plan to do away with their health benefit trust fund is unconstitutional, says the Star Advertiser. The teachers’ union is not a party to the suit. The suit, Kono et al. v. Lingle et al., seeks to represent more than 15,000 active and retired school teachers with health benefits in the Hawaii State Teachers Association Voluntary Employees’ Beneficiary Association Trust (VEBA). The suit claims the state plans to transfer their health benefit plans from "the financially sound" VEBA to the "insolvent or nearly insolvent" Employer-Union Health Benefits Trust Fund (EUTF).

 According to Paul Alston, the teachers’ attorney, the forced transfer of the teachers into EUTF is designed to prop up that failing system on the backs of the teachers. "What they will get if they are forced to transfer is higher costs and inferior benefits," he said. "It is clearly unconstitutional to take away the valuable benefits the teachers have." The suit contends that the change amounts to a breach of contract and violates the Hawaii Constitution by "diminishing or impairing" accrued benefits in the employees’ retirement system. It also charges that after the switch, teachers will face higher co-payments and curtailed drug coverage and services.

Attorney General Mark Bennett counters that the law transferring the health plans is constitutional and that the lawsuit will not succeed. "I have reviewed the lawsuit and we believe that the statutes passed by the Legislature are constitutional and we will defend them, and thus we believe the lawsuit to be without legal merit," Bennett said. "We disagree with their contentions and their legal theory." The lawsuit also alleges that the state improperly took $3.96 million from the VEBA trust surplus, which otherwise would have been used as reserves, and put it into the general fund. The state legislature passed a law to phase out the VEBA trust on Dec. 31, and assign teachers to EUTF, which covers more than 94,000 state and county employees and retirees.

Michael Formby, chairman of the trustees of EUTF, declined to comment on the lawsuit or the fund’s financials. He said the lawsuit would be put on the agenda for the board’s meeting next week. "We would have no comment at this time because we haven’t had a chance to review this," Formby said. Asked whether the fund was insolvent, he said, "We’re still in the process of determining our financial situation, so it’s better not to comment." Sandi Yahiro, assistant administrator of the fund, said staff has been working hard to prepare for the transfer and that the lawsuit "came as a shock to me."

Source: Star Advertiser, 9/15/10, By Susan Essoyan

[Editor's Note: As state and local governments face shrinking revenues, they look to cut costs, especially in the area of employee benefits, by eliminating benefits, or (in the case of healthcare) by passing the increased costs on to the employees. In December 2009, the Sun Sentinel reported that the Broward Teachers Union had filed a lawsuit against the Broward County School Board, seeking to prevent a 45% hike in health insurance rates for dependent coverage. A summary of the article is available below.]

NSBA School Law pages on Broward healthcare suit