Online charter sues Oklahoma Department of Ed seeking funding

Epic One on One Charter School (EOOCS), a K-12 virtual academy, has been soliciting students on  its website from throughout Oklahoma, says the Oklahoman.Under state law, charter schools must have a school district, a CareerTech or a university as a sponsor.  Although EOOCS claims the University of Central Oklahoma (UCO) as a sponsor, UCO denies any such arrangement exists. EOOCS’s suit against the Oklahoma Department of Education (ODE) claims the state has wrongfully refused to acknowledge the school and assign a school code that would allow EOOCS to enroll students, receive funding and select vendors before it opens its virtual doors on September 1.

EOOCS has also named Oklahoma City Public Schools (OCPS) as defendant based on ODE’s interpretation of the state’s charter school law as  requiring the school district where the charter school is physically located to accept transfers on behalf of that entity. According EOOCS, OCPS has refused to process such transfer applications. Nonetheless, it insists that OCPS’ participation is not required because EOOCS should be considered its own school district.

Source: Oklahoman, 8/10/10, By Megan Rolland

[Editor's Note: In June 2009, the Associated Press (AP) reported on proposed Oregon legislation to place limits on cyber-charters in the state. According to the AP article, the Oregon House  voted 31-28 to place a two-year moratorium on new online charter schools and limit enrollment at existing ones. The bill created a task force to study virtual charter schools. A summary of the article is available at the first link below.

As a result of the task force's work, the Oregon legislature passed a bill in February that imposes various requirements on virtual public charter schools. The Oregon School Boards Association's legislative summary is available at the second link below.

In April 2008, the Milwaukee Journal-Sentinel reported that Gov. Jim Doyle had signed a bill ensuring that virtual schools qualify for state aid but capping enrollment and subjecting those schools to a program audit. The new law guaranteed that the online schools could open that fall. Their future was in doubt after an appeals court ruled that one school did not qualify for state aid of $5,845 per student. A summary of the article is available at the third link below.]

NSBA School Law pages on Oregon Cyber-charter legislation

OSBA legislative summary

NSBA School Law pages on Wisconsin virtual schools

 

 

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student

A U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) three-judge panel has ruled that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights. The panel also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable  cause to make the arrest.

Gina Purvis was employed by Hall High School District 502 as a biology teacher. When rumors surfaced that she was involved in a sexual relationship with a student, identified as M.R., Principal Patricia Lunn and Superintendent Daniel Oest  decided to conduct an investigation, which would be carried out by Lunn and Gary Vicini, dean of students. Lunn was aware that Vicini knew  that Purvis had accused him of sexually harassing a female student on a previous occasion, but did not report the conflict of interest to Oest. During the investigation, Vicini threatened M.R. with expulsion and possible criminal punishment unless he admitted to an affair with Purvis. M.R. eventually admitted that he had a sexual relationship with Purvis and provided a detailed written statement. Oest then contacted the the chief of police to report his findings. The chief then contacted the Department Child and Family Services (DCFS). The chief conducted an independent investigation after which Purvis was criminally indicted by a grand jury and arrested.

Purvis subsequently entered into agreement with the school district in which she voluntarily resigned in exchange for $43,000. She was also acquitted on all criminal charges. Purvis than brought suit in a federal district court in Illinois against Oest, Lunn and Vicini alleging that the appointment of a potentially biased individual to investigate the rumors involving Purvis and M.R. fundamentally corrupted the ensuing criminal and DCFS investigation as to amount to a due process violation. Purvis also named the chief as a defendant, claiming false arrest.

The district court denied the defendants’ motion for summary judgment. It found none of the defendants were entitled to qualified immunity, and that there were genuine issues of material fact as to whether Oest, Lunn and Vicini deprived Purvis of due process by giving Vicini a leading role in the school investigation and as to whether the chief had probable cause to arrest the plaintiff.

The Seventh Circuit panel reversed the lower court’s decision.  It concluded that Purvis had indeed raised a "genuine issue of material fact as to whether the school’s investigation (1) was fundamentally biased and (2) deprived Purvis of her protected liberty interest in her employment by corrupting the DCFS and police investigations, which ultimately resulted in her losing her job and ongoing ability to work as a teacher."

The school defendants, however, were entitled to qualified immunity, found the panel.  It applied the two-step immunity test: (1) whether the plaintiff showed a that the defendant had violated a constitutional right; and (2) whether that right was clearly established at the time the violation occurred. Having already concluded that there was a issue of material fact as to whether Vicini’s bias corrupted the subsequent criminal investigation leading to a due process violation, the panel addressed the question of whether that right was clearly established.

The question it sought to answer was whether a reasonable person in Oest, Vicini or Lunn’s "position would have known he was violating Purvis’s clearly established federal rights in (a) knowingly allowing a biased person to play a leading role in the initial investigation, which ultimately resulted in the biased individual’s threatening the suspected victim into admitting the existence of a relationship, (b) reporting the suspected crime to the police, (c) providing the police with the supposed victim’s written statement, which detailed the specifics of the boy’s alleged affair with the teacher, but (d) not informing the police or DCFS of the conflict of interest and that the student’s statement had been provided only after the potentially biased person exerted considerable pressure, which led the student to drop his denials."

Because Oest was not aware of Vicini’s potential conflict of  interest, he could not have been aware that a constitutional right was at stake by appointing Lunn and Vicini to conduct the investigation, as was therefore entitled to immunity.  Lunn and Vicini, the panel found, were also entitled to qualified immunity, even though they were aware of the potential conflict of interest. Although it was well established that a fundamentally biased process is no due process and that a person has a protected right to pursue employment in their chosen profession, "there was no federal law clearly establishing that a biased person causing a teacher to be reported to the police, DCFS or similar entity would violate her constitutional rights when that entity would conduct an independent investigation to determine the validity of the accusation against her."  Moreover, the police chief was entitled to immunity because the record was clear that he had probable cause to arrest Purvis, even when it is viewed in the best possible light for her.

Purvis v. Oest, Nos. 09-1098/09-1101 (7th Cir. Aug. 2, 2010)

[Editor's Note: In March, A three-judge panel from  the Seventh Circuit unanimously ruled that an elementary school principal was not entitled to qualified immunity from female students' equal protection and substantive due process claims based on the principal’s knowledge and covering up of a teacher’s sexual abuse of female students. The panel concluded that for purposes of surviving the principal’s motion for summary judgment, the students had presented sufficient facts alleging that the principal had violated their clearly established equal protection and due process rights by covering up the teacher’s ongoing pattern of sexually molesting female students. A summary of the opinion is available below.]

NSBA School Law pages on T.E. v. Grindle

Evidence, as a matter of law, did not support jury’s finding of peer sexual harassment under Title IX

A federal district court in Michigan granted a school district’s motion for judgment as a matter of law (JMOL) in a Title IX peer sexual harassment suit, and dismissed the suit. The court overturned the jury’s verdict in favor of a student who was found to have been subjected to student-on-student sexual harassment throughout middle school and continuing into high school in violation of his rights under Title IX. After recounting the salient facts established during the jury trial, the court broke the objectionable conduct down into three categories: name calling, other acts, such as offensive drawings posted on the plaintiff’s locker, and one locker room assault. While the district court agreed that the conduct by the student’s classmates detailed during the trial was inappropriate, offensive, and socially unacceptable, it found that the evidence did not prove that the plaintiff was subjected to such conduct on the basis of sex, sexual orientation, or perceived sexual orientation. The court concluded that because "the harassment to which Plaintiff was subjected in sixth, seventh and ninth grade constituted bullying, not sexual harassment,"  and "Title IX protects [against] only harassment or discrimination based on sex," it must as a matter of law dismiss plaintiff’s cause of action.

Alternatively, the district court found that even if the plaintiff had satisfied the other elements of a Title IX claim, he had failed to prove that the school district was deliberately indifferent to known acts of harassment. Specifically, it found that the facts did not support a jury finding that the school district’s response to such known acts was "clearly unreasonable." It pointed out that school officials had responded to every known incident proactively:  "the uncontroverted evidence is that Defendant’s teachers and administrators responded to each and every incident of harassment of which they had notice. . . . More critically, the Court concludes that, as a matter of law, there was no evidence whatsoever presented that Defendant was aware that adverse consequences from its action or inaction were certain or substantially certain to cause harm … and that Defendant decided to act or not act in spite of that knowledge.”

Finally, the district court addressed what it believed was the main reason that the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) remanded the case for trial after the district had granted the school district summary judgment: "that the evidence, taken in a light most favorable to Plaintiff, demonstrated that resource room services were not available to Plaintiff during his ninth grade year." Conceding the issue was not clearly addressed at the time the motion for summary judgment was considered, the district court found that the undisputed evidence at trial established that the "Defendant did not discontinue the use of the resource room for Plaintiff during his ninth grade year."

Patterson v. Hudson Area Sch., 07-74439 (E.D. Mich. July 1, 2010)

[Editor's Note: In March, the Detroit Free Press reported that the jury had found the  school district liable to the tune of $800,000 for failing do enough to protect the student  from years of bullying, some sexually tinged. The article focused on the ongoing bullying to which the student had been subjected. A summary of the article, with a link to a summary of the Sixth Circuit's opinion, is available below.]

NSBA School Law pages on Patterson v. Hudson Area Sch.

ACLU investigating whether school districts in California charging mandatory student fees in violation of state constitution

The Associated Press (AP) in the Ventura County Star reports that the American Civil Liberties Union (ACLU) has a begun a statewide inquiry into charges that some school districts in California are illegally charging  students mandatory fees. The ACLU has received reports that cash-strapped districts are levying fees for everything from textbooks to [participation in] cheer leading squads, which violates the state constitution’s guarantee of a free public education, said ACLU staff attorney David Sapp. Last week, the ACLU sent a letter to the San Diego Unified School District, stating fees being charged at various schools for [participation in] extracurricular activities were illegal. In1984, the California Supreme Court ruled that mandatory fees for extracurricular activities violate the state constitutional guarantee to a free public education and a district’s financial hardship cannot be used to justify levying fees.

Responding to the ACLU letter, San Diego district spokesman Jack Brandais stated that the school system has been working on the fee issue for several months and most of the fees listed in the ACLU letter have already been eliminated.  According to Sapp, a number of districts get around the rules by requesting donations for programs like sports or saying fees are "suggested."

The Los Angeles Unified School District last week announced a plan to ask student athletes for a $24 donation to pay for buses to games, but Superintendent Ramon Cortines quickly rejected the proposal, saying it was not equitable to low-income students. Sapp said the ACLU wants to find a way to bring school districts in compliance with the law but also ensure that programs are not cut. The group is particularly disturbed by reports that students are being charged lab fees or fees for textbooks, he said.

Source: Ventura County Star, 8/6/10, By Christina Hoag (AP)

[Editor's Note: In 2006, The Indiana Supreme Court ruled that a school district’s imposition of a $20 student services fee on all students in grades K-12 violates Article 8, Section 1 of the Indiana Constitution, which guarantees a tuition-free public education. The court concluded that the district's student services fee did not fall into the extracurricular category because it was imposed on all students, was deposited into a general fund, and was used to offset the costs of  items that the legislature through the state board had identified as part of a uniform system of public education. A summary of the opinion is available below.]

NSBA School Law pages on Nagy v. Evansville-Vanderburgh Sch. Corp.

Teachers’ union sues Milwaukee school system for exclusion of erectile dysfunction drugs from health care plan

According to the Associated Press, the Milwaukee Teachers’ Education Association (MTEA) has been waging a two year battle with the Milwaukee school system’s board over the board’s decision to exclude erectile dysfunction (ed) drugs, such as Viagra, Cialis, and Levitra, from the teachers’ health care plan. MTEA contends that the drugs are necessary treatment for “an exclusively gender-related condition.”  However, the school board attorneys counter that  the drugs were excluded in 2005 to save money, and there is no discrimination because their use is not a medical necessity.

One state legislator is question why MTEA would embroil itself in a dispute over ed drugs when teachers are losing their jobs (referring to a massive layoff of teachers in June). A school board consultant has estimated that reinstating the drug benefit would cost $786,000 per year, which State Rep. Jason Fields argues would be money better spent on saving jobs.  MTEA spokeswoman Kris Collett declined comment. However, the union’s attorney, Barbara Quindel, stressed that the case was worth fighting despite the district’s grim finances because erectile dysfunction is associated with heart disease, prostate cancer and other conditions, and the drugs are approved by the Food and Drug Administration and recommended by the American Urological Association. “MTEA believes that men should not be discriminated against in receiving treatment for their medical conditions,” she said.

Health insurer Aetna Inc., which provides one of the district’s two plans, says its standard pharmacy plans exclude Viagra and other “drugs for lifestyle enhancement or performance.” Basic state employee health plans also generally don’t cover those drugs, but more expensive premium plans might, said Dick Cauchi, who tracks health benefits at the National Conference of State Legislatures. Lisa Soronen, National School Boards Association senior staff attorney, also said she had never heard of a similar case or an example of a union negotiating coverage for erectile dysfunction drugs. “If you are getting down to what drugs are covered, you are really getting in the weeds,” she said, explaining most negotiations are over premiums and co-payments.

Although the board agreed to cover the ed drugs after negotiations in 2002, by 2004, the number of claimants receiving prescriptions skyrocketed to more than 1,000 per year, costing the district $207,000. During negotiations in 2005, the board proposed eliminating the benefit and an arbitrator adopted the plan. In 2008, MTEA filed a sex discrimination complaint with the state. In June, the Labor and Industry Review Commission ruled the union couldn’t pursue the case without identifying employees who have been injured by the policy and the complaint was filed after the statute of limitations expired. The union is asking a Milwaukee County Circuit Court judge to overturn that decision and declare that the policy violates the Wisconsin Fair Employment Act.

MTEA’s claim appears to be unique because ed drugs are usually cited as examples of discrimination against female employees. Several lawsuits have claimed that employer health plans discriminate against women when they cover Viagra but not contraceptives or infertility treatment. MTEA, on the other hand, claims men are treated unfairly here. The union’s lawyers have argued that vaginal cream, anti-bacterial medicine and estrogen replacement medication for female sexual dysfunction are covered.

Source: Associated Press, 8/7/10, Ryan J. Foley

Admissions test for elite New York City high school raises diversity concerns

The lack of diversity at Hunter College High School (HCHS), a public school for intellectually gifted students, has sparked a debate over the school’s admissions test after the school’s principal resigned, says the New York Times. Eileen Coppola cited several reasons for her decision, including tensions over a lack of diversity at the school.  A faculty committee issued a notice of no confidence to the president of Hunter College, which oversees the high school. Coppola’s  resignation inflamed a long-standing disagreement between much of the high school faculty and the administration of Hunter College over the use of a single, teacher-written test for admission to the school, which has grades 7 through 12. HCHS faculty committees have recommended that the admissions process be broadened to include criteria like interviews, observations or portfolios of student work, in part to increase minority enrollment and blunt the impact of the test preparation undertaken by many prospective students.

According to Hunter College’s dean for diversity John Rose, eliminating the test is not on the table. “Parents, faculty members and alumni feel very strongly that the test is very valuable in terms of preserving the kind of specialness and uniqueness that the school has,” Rose said. Like other elite schools that rely exclusively on a test for admitting applicants, HCHS has seen its African American and Hispanic enrollment drop from seventh-grade class in 1995 that  was 12% percent African American and 6%  Hispanic to 3% African American and 1% percent Hispanic this past year, while Asian students make up 47% and white students  41% of the student population.  The balance was 47 percent Asian and 41 percent white, with the other 8 percent of students identifying themselves as multiracial. African American  and Hispanic students make up 70% of the school system.

Efforts are under way to increase diversity, focusing on outreach. For the first time, the school this year sent mailings directly to all city fifth graders who scored in the top 10 percent on both the state English and math tests, the criteria to take the Hunter test, rather than relying on schools to pass the word. Hunter High also started a mentoring program for promising third graders.

Source: New York Times, 8/4/10, By Sharon Otterman

[Editor's Note: While not all graduate, undergraduate and K-12 competitive schools similar to HCHS rely exclusively on an admissions tests, the schools struggle with the issue of ethnic/racial diversity among the student body. In 1998, a three-judge panel of the U.S. Court of Appeals for the First Circuit (ME, MA, NH, PR, RI) grappled with the Boston school system's admission policy for its "examination schools," which include the renown Boston Latin.  The admission policy provided that forty-five of the ninety seats available to incoming ninth graders would be filled based solely on applicants’ composite score ranking, while race/ethnic origin would be the determining factor in filling the other forty-five seats among the remaining qualified applicants. When a white applicant was denied admission to the school of her choice, she filed suit. In a 2-1 split, the First Circuit panel, in Wessmann v. Gittens, ruled  that the Boston school system's admissions policy for its examination schools that allocated half of the entering class’ seats on the basis of a “flexible racial/ethnic guidelines” violated the white applicant’s equal protection rights because the school committee was unable to establish a compelling governmental interest for the policy based on either diversity or remedying the vestiges of past racial/ethnic discrimination. A summary of the First Circuit panel's decision is available to COSA members at the first link below.

In 2003, the U.S. Supreme Court issued two decisions on constitutionality of the University of Michigan's undergraduate admissions policy and the university law school's admissions policy. In Gratz v. Bollinger, it struck down the undergraduate policy, while upholding the law school policy in Grutter v. Bollinger. COSA members can access summaries of these opinions at second and third links below. In 2007, the Supreme Court turned its attention to the student assignment plans for Seattle School District and Jefferson County Board of Education in PICS v. Seattle School District No. 1. The Court ruled that student assignment plans in Jefferson County and Seattle that take a student’s race into consideration violate the Equal Protection Clause of the Fourteenth Amendment. A summary of the opinion is available at the fourth link below.

Based on Justice Kennedy's concurring opinion in PICS, school districts have been crafting school assignment plans that develop ethically and racially diverse student populations in their schools using socio-economic factors, while avoiding the focus on an individual student's racial/ethnic identity. So far the results are mixed. In Student Doe 1 v. Lower Merion School District, a federal district court in Pennsylvania  ruled that a school district’s use of racial demographics to redraw the attendance zones for its two high schools did not violate African-American students’ rights under section 1981, Title VI of the Civil Rights Act of 1964 or the Fourteenth Amendment’s Equal Protection Clause. A summary of the opinion is available at fifth link below. Meanwhile in North Carolina, the Associated Press and others have reported on the ongoing tensions in Wake County, where the Wake County School Board’s vote to eliminate its busing policy in favor of keeping students in schools close to their homes ended a diversity plan that was considered a model for school districts. A summary of the article is available at the sixth link below.

Finally, during its October 2009 term, the Supreme Court in Lewis v. City of Chicago considered a case addressing the disparate impact of a written test given to applicants for Chicago firefighter positions.  The Court found unanimously that a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim.  The plaintiffs in the case were applicants who had not been called to move on to phase two of the application process because they were not in the group, termed "well-qualified," that had scored 89 or above on the exam. Because the test had a disparate impact on African-American applicants, and such applicants were affected every time the city pulled from the "well-qualified" pool of test-takers, the Court found that the clock effectively re-started each time the city applied its policy, not just from the moment it adopted the policy.  The Supreme Court's opinion is available at the seventh link below.]

NSBA COSA archives on Wessmann v. Gittens

NSBA COSA archives on Gratz v. Bollinger

NSBA COSA archives on Grutter v. Bollinger

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

NSBA Legal Clips archive on Student Doe 1 v. Lower Merion Sch. Dist.

NSBA Legal Clips archive on termination of Wake Couty diversity plan

Lewis v. City of Chicago

Lawsuit alleges private recruiter forced Fillipino teachers into indentured servitude

A class action suit filed by the American Federation of Teachers (AFT) and the Southern Poverty Law Center (SPLC) on behalf of a group of Filipino teachers alleges that the teachers were the victims of a human trafficking scheme to bring hundreds of Filipino teachers to Louisiana public schools using exploitative contracts that charged them excessive, illegal fees, says an Associated Press (AP) report in Bloomberg Businessweek. The suit charges Universal Placement International Inc. (UPII) with racketeering and fraud in connection with its recruiting of teachers from the Philippines to work in a number of school districts in Louisiana. AFT/SPLC claims UPII illegally required the teachers to pay thousands of dollars in fees to be hired to jobs mainly in East Baton Rouge Parish, but also in Caddo, Jefferson and other parishes and in state-run schools in New Orleans.

According to AFT attorney Daniel McNeil the teachers were saddled with crippling debts, placed into shoddy housing and threatened with deportation if they complained. He  equated the conditions to forced labor and indentured servitude. SPLC legal director Mary Bauer added, “This is far closer to slavery than we should be willing to tolerate.”  The suit contends that the teachers were required to pay a $16,000 fee.   If they could not afford the fees, the teachers borrowed money, in many instances from lenders recommended by the recruiting firm who charged hefty interest rates. The suit contends that, once in the United States, the teachers were forced to agree to pay a percentage of their monthly income to UPII and fees for arranging housing; their passports and visas were confiscated to ensure the fees would be paid.

The suit names UPII’s sister operation in the Philippines, PARS International Placement Agency  as a defendant, as well as the East Baton Rouge Parish School Board and several current and former school system administrators, including former Superintendent Charlotte Placide.  They are accused of ignoring the alleged abuses and in some cases assisting the recruiting company with illegal behavior. “It was more than turning a blind eye. They actively participated in what was going on,” Bauer said.  The AFT/SPLC suit seeks a refund of all fees paid by teachers and damages totaling millions.  Last October, the Louisiana Federation of Teachers filed complaints with state authorities alleging the company was operating illegally in the state and charging the teachers exorbitant fees.  In April, a state labor department judge ordered the company to refund fees that the LFT estimates will total $1.8 million. The company’s attorney said that ruling would be appealed.

Source: Bloomberg Businessweek, 8/6/10, By Melinda Deslatte (AP)

[Editor's Note: USA Today reported on the complaints filed by the AFT and the Louisiana Federation of Teachers (LFT) with the Louisiana Workforce Commission and attorney general last fall.    AFT filed an additional complaint with the U.S. Department of Labor (DOL). The unions alleged the companies kept the teachers in "virtual servitude" by holding onto their U.S. work visas unless they kept paying inflated fees, commissions and rents. A summary of the article is available below.]

NSBA School Law pages on AFT/LFT complaints

Bill introduced in Congress to ban corporal punishment in schools receiving federal assistance

U.S. Rep. Carolyn McCarthy (D-NY) has introduced legislation that calls for a national end to paddling, a form of corporal punishment, in all schools in the United States. She calls corporal punishment a safety issue in schools, saying it can aggravate students and make them violent. The "Ending Corporal Punishment in Schools Act" would ban any form of physical discipline on students in public and private schools that receive federal funding. The bill would also provide federal grants to schools dealing with disciplinary issues to promote nonphysical ways to change student behavior.

However, some educators insist corporal punishment is a vital tool in maintaining discipline in schools. "Our public education is in a state of crisis because the current discipline system in this nation is being ineffectively implemented," said Kenneth Whalum Jr., a board commissioner for Memphis City Schools in Tennessee. "Corporal punishment would be an arrow in the quiver for teachers to use at their disposal. It’s the best way to get the system right." According to a recently released report by the American Civil Liberties Union (ACLU) and Human Rights Watch (HRW), 20 states current allow the  use paddling.

According to the most recent data available from the U.S. Department of Education, Office for Civil Rights, 223,190 students nationwide were paddled at least once in the 2006-07 school year, including at least 41,972 students with disabilities. Because minority students are among those most likely to be paddled, there are questions about the fairness of using corporal punishment. Nonetheless, corporal punishment proponents, such as Whalum , believe  physical discipline promotes good behavior, which is necessary for academic progress.

Source: CNN, 8/5/10, By Liane Membis

[Editor's Note: The ACLU/HRW report referred to in the article is available at the first link below. In 2009, the Memphis Commercial Appeal reported on a Memphis charter school that subjects students to public paddling at school assemblies as an integral part of the school's disciplinary program. The school's principal, Curtis Weathers, said, "This is nothing that we are ashamed of."  He added, "It's very effective for us as a strategy for avoiding certain conducts." A summary of the article is available at the second link below.

The U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL) considers three factors in cases where a plaintiff has alleged excessive corporal punishment to the point of substantive due process violation: “(1) the need for the application of corporal punishment; (2) the relationship between the need and amount of punishment administered; and (3) the extent of the injury inflicted.”  In June, a three-judge panel of that court decided in a 2-1 split, that a teacher’s use of force to restrain a student with autism/pervasive developmental disorder violated neither the student’s substantive due process right to be free from excessive corporal punishment nor his rights under section 504 of the  Rehabilitation Act.  A summary of the case, with links to additional corporal punishment cases, appears at the third link below.

The Associated Press reported in July that the Georgia State Board of Education (GBOE) had voted to prohibit the practice of placing students in solitary confinement, also known as seclusion. GBOE’s new rule also limits the use of restraint to calm misbehaving students in the classroom and, for the first time, requires schools to notify parents when their children are restrained by teachers and other school officials.  A summary is at the fourth link below.]

ACLU/HRW report

NSBA School Law pages on Memphis charter school paddling policy

NSBA Legal Clips archive on T.W. v. Sch. Bd. of Seminole County

NSBA Legal Clips archive on Georgia state BOE ban on seclusion rooms

Parent challenges student’s suspension for alleged violation of school district’s unpublished “good conduct policy”

Courthouse News Service reports that a Thedford, Nebraska parent is suing Thedford school district for suspending his daughter from extracurricular activities for two years for allegedly violating the district’s unpublished “good conduct policy.” Richard Jameson claims that Superintendent Henry Eggert imposed the suspension after he came into possession of a photograph that purportly shown Courtney Jameson holding a beer at a party. According to Jameson, Eggert informed  him that Courtney would be disciplined for violating the so-called “good conduct policy,” which Eggert claimed was published in the student handbook.

The suit claims that the “good conduct policy” was never published in the student handbook until after Courtney’s suspension took place. Jameson claims that when he asked for a copy of the handbook, the superintendent gave him 12 unmarked pages that were dated two days after their meeting.
The suit adds that when Jameson’s attorneys then asked for the complete handbook, they were sent the same unmarked pages.  ”At the time of Courtney’s alleged actions, Thedford Public Schools had no published rule concerning the possession or use of alcohol outside of school activities or off school grounds,” the suit asserts. “Neither did the school have any published rule concerning a student being present at a party where alcohol was being consumed.” The suit is asking that Thedford be enjoined from enforcing the unpublished policy.

Source: Courthouse News Service, 8/5/10, Adam Klasfeld

[Editor's Note: A copy of Jameson's legal complaint is available below.  It asks for equitable relief in the form of an injunction barring the discipline.]

Legal complaint

School district ordered to drop nickname deemed racist by Wisconsin Department of Public Instruction

The Associated Press reports in the Superior Telegram that the Wisconsin Department of Public Instruction (WDPI) has ordered Osseo-Fairchild School District (OFSD) to drop its Chieftains nickname and logo after a determination that it was race-based and promoted discrimination and harassment. Under recently enacted legislation, WDPI has the authority to order schools to drop their race-based nicknames and logos if they are deemed discriminatory. The department’s ruling could affect 34 other school districts in the state with similar Native American based names. Under the law, districts that refuse to drop names after being ordered to do so face $1,000 per-day fines.

OFSD has one year to stop using the Chieftains logo and nickname or face fines. The decision on whether to appeal the ruling will be the school board’s, according to  district superintendent Edward Dombrowski. "For me the most important thing is what effect is this going to have on the kids in the community. . . . It really split the community. I’m really hoping this becomes an opportunity for us to pull together." The order authored by WDPI School Administration Consultant Paul Sherman noted that the district doesn’t have the permission of any federally recognized American Indian tribe to use the name or logo. The order determined that using it amounts to stereotyping, discrimination and student harassment in violation of state law.

Source: Superior Telegram, 7/27/10, By Scott Bauer (Associated Press)

[Editor's Note:   The order issued by WDPI, which contains details about the history of the district's use of the "Chieftains" nickname and logo, appears at the first link below.  In the order, the consultant found that the district was unable to produce clear and convincing evidence that the nickname and logo were not race-based.   There was evidence, however, including social science research, suggesting that the symbols were race-based and use of such symbols is damaging to members of the ethnic group. 

In 2005, the NCAA adopted a new position with respect to Native American team names and symbols.  According to its web site:  "The NCAA policy on Native American mascots does not require member institutions to change their names or mascots. The actual policy precludes member schools with Native American nicknames, mascots, or imagery from hosting NCAA championships.  These schools are still eligible to participate in championships, but the policy restricts them from wearing uniforms or other paraphernalia that depict nicknames or images while competing in NCAA championship events. The NCAA only governs member universities and colleges."  Additional information on the NCAA's policy is available at the second link below.

Some other states have acted to discourage the continued use of Native American names and/or symbols as nicknames or mascot, but without the enforcement teeth that the Wisconsin law has.  For example, in 2007 the Forest Grove News-Times reported that a high school was hoping that the Oregon Department of Education (DOE) would reverse an advisory committee recommendation to eliminate mascots depicting Native Americans at all publicly funded Oregon schools in two years.   As of February of this year, according to the Native American Times, the Oregon DOE had not issued a recommendation, and schools with Naive American mascots and images continue to use them. The article is available at the third link below.  A summary of the article from the Forest Grove News-Times is available at the fourth link below to COSA members.

For a first-hand account of a North Carolina school district's review of its schools' use of American Indian symbols, American School Board Journal subscribers may follow the fifth link below. ]

State Superintendent of Public Instruction order on Osseo-Fairchild nickname and logo 

NCAA team mascot policy

Native American Times:  No change in American Indian mascot names in Ore.

NSBA COSA database resource on Oregon mascot dispute

American School Board Journal:  Mascots and Meaning