New Mexico Education Secretary suspends local school board

As reported in the Los Angeles Times, New Mexico Education Department Secretary Hanna Skandera recently suspended the entire school board of the Questa Independent School District in northern New Mexico, saying that state officials would take over the running of the board. Secretary Skandera cited the regular fisticuffs, chaotic meetings, and required police presence as some of the reasons for the takeover.

On the unofficial agenda were fistfights that ended meetings and caused members to storm out in view of an aghast public; accusations that board members pressured former superintendents to fire people; and violations of the Open Meetings Act when it came to discussion of illicit relations between a board member and a local teacher.

A report by Secretary Skandera’s office claimed that one board member in the district, located north of Taos, New Mexico, punched his own son in a school parking lot and then threatened the principal for reporting it to authorities. After the board member ordered an electrical line to the school dug up, causing classes to be suspended for a week, he was banned from coming onto the campus of the school, the report said.

The report also stated that police were often required at meetings, which ended without proper adjournment because members apparently simply walked out. There were also disputes in which board members accused staff members of “immoral or illegal activities.” Officials said the board had refused to follow its mandate to “work in harmony” with other board members.

Larry Behrens, a state education department spokesman, told a local news outlet that he did not believe a full school board had ever before been removed from power by the education secretary. A public hearing on the board members’ suspensions is scheduled for Nov. 5. Board members can fight the suspension during a public hearing in November. Until then, the state will oversee the district, the report said.

Source: Los Angeles Times, 9/21/12, By John M. Glionna

Texas court temporarily lifts school district’s ban prohibiting religious displays at football games

According to an Associated Press (AP) article in the Star-Telegram, a Texas state court has issued a temporary restraining order (TRO) preventing Kountze Independent School District (KISD) from enforcing its ban on displays of religious banners at football games. The ban on religious displays was put in place by KISD’s superintendent after receiving a letter from the Freedom From Religion Foundation (FFRF).

Liberty Institute (LI) then entered the controversy, filing suit seeking to temporarily bar implementation of the ban. The TRO will remain in place until early October 2012 when the court conducts a hearing. KISD Superintendent Kevin Weldon has explained to every parent who has called that a 2000 U.S. Supreme Court precedent-setting decision requires religion to be kept out of public schools. Some parents support his decision. Others say they will back their children’s First Amendment right to hang the banners. Those opposing the displays are backed by FFRF, while supporters of the displays are backed by LI.

High school guidance counselor sues Illinois school district after being fired for writing graphic book

The Chicago Tribune reports that Bryan Craig, guidance counselor and former girls’ basketball coach at Rich Central High School, has filed suit in federal court against Rich Township High School District 227, charging he was terminated in violation of his free speech rights after writing a graphic book about relationships. The school board cited Craig’s book, titled “It’s Her Fault,” when it unanimously voted to fire him.

Board President Betty Owens said, “Mr. Craig’s conduct in this matter fell far short of our expectations and evoked outrage for me, members of this board and many others in this district who have come to expect the highest level of professionalism and sound judgment from the people they entrust with their children each day.”

Craig argues that his dismissal violated his First Amendment rights. He contends that publication of the book was not part of his official duties and should not have been used to fire him. He also notes the book was meant to give women a road map to having the upper hand in relationships with men.

In September 2012, Craig received a letter from the school district stating it “had received concerns from members of the school district community regarding the publication of the book.” The letter added that an investigation found that Craig had violated the district’s policies and procedures, according to the complaint.

Source:  Chicago Tribune, 9/24/12, By Deanese Williams-Harris

[Editor's Note: The courts are seeing an increasing number of employee suits involving speech in claims of retaliation for online postings on social networking sites. For example, in June 2012, Legal Clips summarized an article in the Courthouse News Service, which reported that high school English teacher Natalie Munroe had filed suit in federal court against the Central Bucks School District (CBSD), Superintendent Robert Laws, and Central Bucks High School East Principal Abram Lucabaugh, claiming CBSD planned to terminate her in retaliation for her engaging in constitutionally protected speech. Specifically, Munroe alleged that she created a blog, intending for it to be anonymous, on which she criticized students, parents, and school officials without reference to specific individuals or locations where she worked or lived.]

Indiana court rules department of education’s standard teacher contract forms are illegal

The Associated Press (AP) reports in The Republic that Marion County Superior Court Judge Patrick McCarty has ruled that the standard teacher contract forms issued by the Indiana Department of Education (IDE) that would have allowed school districts to change or increase teachers’ hours without paying them more are illegal. Based on that ruling, Judge McCarty has permanently barred IDE and state Superintendent Tony Bennett from using the standard forms, which all school districts would have been required to use.

The judge concluded that IDE lacks the legal authority to unilaterally contradict existing contract law. “The regular teacher’s contract form drafted by Dr. Bennett is unconscionable in that it gives school corporations the authority to unilaterally modify the number of days and hours that a teacher must work, but it does not require the school corporation to pay for the additional labor or any other additional consideration,” he said.

Judge McCarty determined the contract form was unenforceable because it did not set any term of employment. Establishing a minimum number of days was not enough, McCarty said. He also said the standard contract would have allowed districts to fire teachers at will, which violates Indiana law. He called the terms of the contract form “contradictory and vague.”

“The intent of the form at issue in this case was to provide local school corporations flexibility to meet the needs of all their students,” IDE spokesman Adam Baker said. He added that state education officials were considering whether to appeal the ruling.

Indiana State Teachers Association (ISTA) Vice President Teresa Meredith, who filed the suit along with the union, said that under the standard contract the state wanted to impose, school districts could have called teachers into work any time they desired – even if they were at another job or on vacation – and fired them if they did not show up. “The judge agreed that it’s reasonable to know the amount of days you’re required to work,” Meredith said.

Judge McCarty’s order also requires Superintendent Bennett to notify all Indiana school districts not to use the new regular teacher contract form, and to forward a copy of the order to all districts.

Source:  The Republic, 9/25/12, By AP

[Editor's Note: In August 2011, Legal Clips summarized Judge McCarty's opinion in ISTA v. IDE, who granted a preliminary injunction barring the IDE from requiring local school districts to use its then-new form when executing employment contracts with teachers. The judge concluded that ISTA was likely to succeed on the merits of its claims. He found that the contract form “violates Indiana’s common law principles governing employment contracts and is illusory,” and that the form converts a teacher’s employment with a school district to an at-will employment relationship in contravention of state law.]

Facing ACLU scrutiny, South Carolina district eliminates prayer from all board meetings and district events and activities

According to the Georgetown Times, on the advice of David Duff, attorney for the Georgetown County School District (GCSD), the Georgetown County School Board has ceased the practice of opening board meetings with a prayer and replaced it with a moment of silence. In addition, the board has ceased the practice of prayer at GCSD-sanctioned sports events and graduation ceremonies. Duff’s advice was provided during a meeting with the board to offer guidance on how the district should respond to an in-depth Freedom of Information Act (FOIA) request from the American Civil Liberties Union (ACLU).

The ACLU is investigating the religious activities that are permitted in every school district in the state. The request is for documentation about board meetings, graduations, sports events, curriculum, and other activities. The ACLU’s statewide inquest began after an incident last year in Chesterfield County in which a Christian rock artist, known as B-Shoc, and a youth evangelist, Christian Chapman, were allowed to hold a concert during the school day at New Heights Middle School in Jefferson.

Duff explained to the board that the First Amendment, while known mostly as the freedom of speech act, does contain clauses that prohibit government entities from promoting or fostering religion. Victoria Middleton, executive director of the ACLU of South Carolina, said students need to know school is a “place where they will be welcome no matter what they believe.”

Duff said the ACLU is looking at the districts to see if there are constitutional violations taking place such as teacher-led class prayers, Bible distribution or prayer at school sponsored events and meetings. “Despite how important religion is in our personal lives, we must abide by what the courts have said,” Duff said, adding “the safest way to start any meeting is with a moment of silence.”

Duff said prayers at football games, even if they are led by students, have already been ruled unconstitutional by some courts and so far the Supreme Court has declined to review the matter.

During his presentation, Duff said it is easy for people to say “bring it on” to the ACLU when you are not a government official or an employee and would not be named as a defendant in a lawsuit. He said if a board member knowingly allows things to take place that have been determined to be unconstitutional, they can be named as an individual in a lawsuit.

It was mentioned that the Christian lawyers’ organization, Liberty Counsel, often takes on the ACLU in such cases at no cost. However, Duff said, the Liberty Counsel does not pay the court costs and attorney’s fees for the ACLU if that organization prevails in the case. “This is what they don’t tell you,” Duff said, meaning the district and others named as defendants would be required to pay those costs.

South Carolina Superintendent Dr. Mick Zais said he supports the rights of students and adults to pray or not to pray in schools. “This misinformation campaign by the ACLU isn’t about religious freedom. It’s an attempt to discourage religious expression in the public arena by issuing threats of lawsuits and suggesting it is unlawful to pray in school,” said Zais. He continues, “The Constitution guarantees the right to freedom of religion, not the freedom from religion. To those who choose to pray in school, I encourage them to keep praying.”

GCSD School Board Chairman Jim Dumm said because board members can be sued individually and because schools could lose federal funding if laws are being broken, the district, at least for now, is not fighting the ACLU on the issue. “Based on what we have been told, I don’t see how we can pray anymore,” Dumm said. He said the laws are “pretty clear” on what is and is not allowed by law, according to the presentation made by Duff.

The ACLU acknowledges that students are allowed to pray alone or in groups on school campuses “as long as such prayers are not disruptive and do not infringe on the rights of others.” However, it emphasizes that this right to “engage in voluntary prayer does not include the right to have a captive audience listen or to compel other students to participate.”

Duff said it is okay for students to share their religious beliefs with other students. But no such talk can be initiated by any school employees. “Students may read their Bibles or other scriptures, say grace before meals and pray before tests,” the ACLU literature states, adding students are free to pray and share their faith in “informal settings such as cafeterias and hallways.” Student-led prayers, such as the annual See You at the Pole, is permitted, Duff said.

Source:  Georgetown Times, 9/7/12, By Scott Harper

[Editor's Note: Mr. Duff is a member of COSA. The letter accompanying the ACLU FOIA request, which was sent to the superintendent of each school district in South Carolina, states that the responses to the attached FOIA request will be used to provide school districts with guidance as needed and requested. It points out that if there are complaints regarding individual districts, the ACLU will contact district officials and attempt to resolve them. It stressed that litigation would be a last resort.

As referred to in the Georgetown Times article, in January 2012, Legal Clips summarized an article in the Cheraw Chronicle, which reported that the Chesterfield County School Board had voted to accept a proposed settlement offered by the ACLU in a suit it brought against the Chesterfield County School system. The settlement placed limits on school officials’ abilities to promote prayer and religious beliefs while acting as employees and representatives of the school district. It did not prohibit students from praying on their own or together, and it did not prohibit teachers from religious exercise when not acting in their capacities as government officials.]

Louisiana district’s cheerleader selection policy could be sticking point in quest for unitary status

As reported on thetowntalk.com, Avoyelles Parish public schools’ recently adopted policy regarding the selection of cheerleaders and majorettes is facing opposition as the school district seeks a judicial declaration of unitary status as to extracurricular activities. In August 2012, the Avoyelles Parish School Board (APSB) approved a policy that states: “[J]udges that are to be used for the selection of cheerleaders, danceline and majorettes must contain at least one member of the minority race.”

Allen Holmes, an intervenor in the Avoyelles desegregation case since the 1980s, filed a memorandum in opposition in federal district court. According to Holmes, “The most glaring reason why this plan should be rejected is that this is no plan at all.” The court requested APSB to write and pass a policy after Holmes voiced concerns about the racial makeup of teams during an August hearing to determine if the district is desegregated in extracurricular activities.

Holmes contends the policy is nothing more than a statement, and it is not enough. He asks the court to reject the policy. He also asks for a written policy that covers the makeup of the judges, their qualifications, and the criteria they will use to score the candidates.

Avoyelles schools superintendent Dwayne Lemoine argues that the court did not want specifics on criteria used in judging, as Holmes is asking. Lemoine said he does not think it is his or the court’s place to decide those criteria, either. “I don’t think the judge wanted to create a rubric for judging cheerleaders,” Lemoine said. “If we do that, why stop with cheerleaders? Why not do the same for all [teams]?”

Lemoine said he would not tell coaches what they should look for in athletes for any team because he does not have the expertise. “Choosing cheer or dance members is no different than choosing basketball players,” Lemoine said. “It’s completely subjective from who we say are experts in the field.”

Although Lemoine thinks the board complied with the judge’s order, he said, he is willing to go further if necessary. “We will do anything the court wants us to do,” he said.

Holmes said one minority judge is not enough, but that it is not just about the number. “[The board] should come up with a policy – something professional – that’s what I’m asking them,” Holmes said.

Lemoine is waiting to hear from the judge about how to proceed with extracurricular activities as well as facilities, which has not yet had a hearing. He and legal counsel are working on the remaining benchmarks, known as “Green factors,” to be met for the district to achieve unitary status.

The Green factors are six legal standards – in the areas of faculty; staff; student curricular activities; facilities; transportation; and the racial makeup of students at schools, called student assignment – that determine whether a district can be declared unitary and integrated.

Avoyelles District Attorney Charles Riddle III, counsel for APSB, said a hearing will not be called on the memorandum. The court will either deny it or give the board more instruction. For now, the board waits. “We’re waiting to hear if the judge is satisfied with what we did,” Riddle said.

The school district has met three benchmarks required to be granted overall unitary status – transportation, and teacher and student assignments. The court also will consider the district’s curriculum, although it is not a “Green” factor required by law for unitary status.

Source:  thetowntalk.com, 9/21/12, By Leigh Guidry

[Editor's Note: In August 2010, Legal Clips summarized an article in the Orlando Sentinel, which reported that Judge Anne Conway had released Orange County School District (OCSD) from a decades-old desegregation order. The judge rejected the settlement agreement between OCSD and the NAACP that had been submitted to the court. The judge criticized both sides for focusing more on their agreement than on showcasing how the district had, or had not, changed. It was the court’s duty to assess whether the school system had met its legal obligations. The judge said that the parties' "reluctance to confront the real issues in this case" made her job "manifestly more difficult."]

Tennessee governor’s voucher task force debates how soon a voucher program can be implemented

According to The Commercial Appeal, a task force appointed by Tennessee Governor Bill Haslam has skipped over the question of whether to create a school voucher program. Instead, the panel’s most spirited recent debate was over how soon vouchers could be offered in Tennessee.

The panel, which is scheduled to make its full recommendations to the governor in November, also discussed whether private schools participating in the program should be allowed to charge parents any more than the vouchers are worth. Some members said most lower-income families would be priced out of more expensive schools if controls were not put into place.

However, state Senator Brian Kelsey argued that more expensive schools were less likely to participate if they could not make up some of the difference between the vouchers and their tuition. Tennessee Education Commissioner Kevin Huffman noted that the experience in Louisiana has been that most private schools have agreed to participate in the voucher system despite similar tuition controls.

Jerry Winters, chief lobbyist for the Tennessee Education Association, the state’s largest teachers’ union, said he was upset by the proceedings. “It’s very disturbing to see the leaders of the state education system talking about ways to take more money away from public schools and send it to private schools,” he told reporters after the event.

Source:  The Commercial Appeal, 9/26/12, By Staff

[Editor's Note: In April 2012, Legal Clips summarized an article by the Associated Press, which reported that at the heart of brewing political fights is whether public dollars should go to school vouchers to help make private schools more affordable. Opponents say vouchers erode public schools by taking away money, violate the separation of church and state by giving public dollars to religiously-based private schools, and are not a proven way to improve test scores. Even among supporters, there is dissension over whether vouchers should only be offered to low-income students on a limited basis or made available to anyone. There is also division among black and Hispanic leaders as to whether vouchers help or hurt kids in urban schools.]

New Hampshire school district settles transgender student’s discrimination suit

According to UnionLeader.com, the Nashua School District (NSD) has entered into a settlement agreement with the family of a transgender student suing for discrimination. The agreement allows the student to wear girl’s clothing, use her female name, and use the female restroom.

However, NSD Superintendent Mark Conrad said that a district-wide policy dealing with transgender is not necessary. “We don’t have a specific policy on transgender students, but we do have policies in place that prevent discrimination against students and bullying, and we regularly review those policies,” said Conrad.

According to Janson Wu, a staff attorney with Gay and Lesbian Advocates and Defenders who represented the student and her family, most school districts and businesses in New England are looking for some guidance when dealing with transgender issues. “Transgender is being identified earlier and earlier these days, and it presents unique challenges and opportunities for these students and their schools. When they are reaffirmed, they are more likely to do well in school,” said Wu. “It is hard to generalize, because this really is a new area, and school districts and families are learning together on a case-by-case basis.”

According to Wu, it would be easier if the state of New Hampshire, or individual school districts had policies in place to address transgender issues specifically. Schools must first educate their administrators and teachers about transgender, and help them to understand what these children are facing, he said.

When asked whether a district-wide policy on how to address concerns from transgender families would be beneficial, Conrad said there is already protection in place for all students. “It has always been a relatively unique occurrence,” said Conrad. “Because there is such a small number within the school community, we have been able to address their needs on an individual basis.”

Source:  UnionLeader.com, 9/24/12, By Kimberly Houghton

[Editor's Note: In September 2012, Legal Clips summarized an article in the Bangor Daily News, which reported that Penobscot County Superior Court Justice William Anderson had heard oral arguments in a discrimination suit brought by the parents of a transgender student over the local school district’s handling of their transgender child’s transition from male to female. It is the first case in Maine to address a transgender student’s right to use the bathroom of the gender with which he or she identifies.]

ACLU sues to obtain documents from Des Moines school board’s closed session about acceptance of superintendent’s resignation

The Des Moines Register reports that, on behalf of a former school board member, the American Civil Liberties Union of Iowa (ACLU-IA) has filed suit under the state public records law against the Des Moines school district seeking materials from a May 2012 school board meeting closed to the public, after which the school board voted to accept the now-former superintendent’s resignation. Nancy Sebring abruptly resigned her position after board members confronted her with the district’s discovery that she had carried on sexually explicit conversations using her district email account, some of them during the workday.

The ACLU-IA wants the school board to turn over the materials, including any written materials and audio recordings, because the school board did not go into a closed meeting to discuss Sebring’s qualifications, which is allowed under state law. As evidence, the lawsuit cites public comments School Board President Teree Caldwell-Johnson made after the meeting in which she said Sebring’s qualification were not scrutinized. However, district spokesman Phil Roeder maintains the meeting was, in fact, closed to discuss personnel matters. “As everyone everywhere knows by now, the May 10 school board meeting was in every way, shape and form about personnel matters, and as such the board acted according to Iowa law in holding a closed session,” he said. “The district will vigorously defend itself against this entirely frivolous lawsuit.”

Iowa Code allows, but does not require, closed sessions “to evaluate the professional competency of an individual whose appointment, hiring, performance or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation.” Board officials said a closed meeting was requested by Sebring and Interim Superintendent Tom Ahart, who was at the time an associate superintendent.

Source:  The Des Moines Register, 9/24/12, By Jens Manuel Krogstad

[Editor's Note: Challenges to the matters discussed during the closed sessions of school boards often cite state open records laws as their bases. In June 2012, Legal Clips summarized an article in The New Hampshire Union Leader, which reported that a New Hampshire state trial court had ordered the Wilton-Lyndeborough Cooperative School District to release school board meeting minutes containing a discussion of an investigation of former Superintendent Trevor Ebel’s misuse of a district-provided credit card. The court’s ruling was in response to a suit filed by The New Hampshire Union Leader after its request for information.

In July 2010, Legal Clips summarized a decision by a Kentucky Court of Appeals in Carter v. Smith, which held that the Bourbon County Board of Education violated the state’s Open Meetings Act (OMA) by negotiating the resigning superintendent’s personal services contract (PSC) behind closed doors. The court held that under the OMA, the negotiation of a PSC is not an appropriate topic for executive session. The school board could have discussed Carter’s dismissal during executive session and then returned to open session to announce the resignation and negotiate the consulting contract.]

Federal district court rules student stated valid First Amendment free speech claim based on school officials disciplining her for off-campus online postings

R.S. v. Minnewaska Area Sch. Dist., No. 12-588 (D. Minn. Sept. 6, 2012)

Abstract: A federal district court in Minnesota has denied the defendants’ motion to dismiss, ruling that a middle school student has stated a valid claim for violation of her First Amendment free speech rights based on school officials disciplining the students for off-campus postings made on her Facebook page. The court also denied school officials’ assertion that they were entitled to qualified immunity from the First Amendment claim at this early stage of the litigation.

The court also concluded that the student had stated a valid claim for violation of her Fourth Amendment right to be free from unreasonable searches based on school officials requiring her to provide passwords to her Facebook and personal email accounts. Although the district court’s opinion addressed a number of issues raised by her federal and state law claims, this summary focuses on the student’s First and Fourth Amendment claims, and the individual defendants’ claims to a qualified immunity defense.

Facts/Issues: R.S., a student at Minnewaska Area Middle School (MAMS), was disciplined for two postings she made on her Facebook wall. One posting expressed her dislike for a school employee, while the other “expressed salty curiosity about who had ‘told on her.’” Facebook’s website is inaccessible from school computers, and R.S. posted the messages from home, outside of school hours.

However, MAMS Principal Pat Falk learned of the posting when one of R.S.’ classmates recorded the message. Falk required R.S. to apologize to the employee and serve detention. R.S. then posted a message stating: “I want to know who the f%$# [sic] told on me.” She received a one-day in-school suspension and was also prohibited from attending a class ski trip for that posting. Her disciplinary record indicated she was punished for “insubordination” and “dangerous, harmful, and nuisance substances and articles.”

R.S.’ Facebook page came to MAMS officials’ attention again when the guardian of a male student complained that the boy was communicating with R.S. about sexual topics via the Internet. R.S. was pulled out of class by a school counselor, who questioned her about the allegation. R.S. admitted to having Internet conversations of a sexual nature.  R.S. was pulled out of class a second time that same day and taken to the office of the local law enforcement officer assigned to the school.

Deputy Sheriff Gilbert Mitchell, the counselor, and a third unknown school employee questioned R.S. about her Internet conversations. R.S. alleged that the officials demanded she provide them with her email and Facebook usernames and passwords under threat of detention. The officials viewed her public Facebook postings and her private messages. However, R.S. was uncertain that they accessed and viewed her email account. At no point did officials ask for R.S.’ permission to search through her private correspondence.

Although R.S. was not disciplined, only after the search took place did the counselor contact R.S.’ mother, S.S., leaving a voice mail relaying the day’s events. S.S. filed suit in federal district court on behalf of R.S. against Minnewaska Area School District (MASD) and a number of MAMS officials, laying out several federal and state law claims.  This case summary will focus on just the First Amendment free speech claim and the Fourth Amendment unlawful search claim, and several state law claims.

Ruling/Rationale: The district court denied the defendants’ motion to dismiss, finding that the student had alleged sufficient facts for her claims of violations of her First and Fourth Amendment rights to proceed.

First Amendment Free Speech

Addressing the issue of whether the defendants violated R.S.’ free speech rights, the court stated that “out-of-school statements by students … are protected under the First Amendment and not punishable by school authorities unless they are true threats or are reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption in that environment.”

The court concluded R.S.’ postings were certainly not threats, much less true threats. While conceding her statements may have been reasonably calculated to reach the school environment, the court pointed out that the defendants had to show that they could reasonably forecast substantial disruption to the school environment. However, the court found that the content of the statements fell far short of statements made by students in cases in which courts have upheld intervention by school authorities. It concluded, based on the facts alleged, that “a reasonable reader could not consider her statements likely to cause a substantial disruption to the school environment.”

Regarding the individual defendants’ argument that they were entitled to qualified immunity, the court determined that the protected status of off-campus online speech was clearly established at the time they disciplined R.S. Citing D.J.M. v. Hannibal Public School District # 60, 647 F.3d 754 (8th Cir. 2011), the district court stated that D.J.M. “explained the contours of a narrow exception to the general rule – an exception which applies to true threats or egregious statements likely to make their way to school and cause a substantial disruption to the school environment.”

The court also referred to the twin Third Circuit decisions, Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. 2011) (en banc) and J.S. v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (en banc), pointing out that courts have applied the exception “only to the most violent and threatening forms of speech and consistently declining to expand it to extremely offensive but nonviolent out-of-school speech.” The court also noted that a number of U.S. Supreme Court cases have distinguished between regulation of on-campus and off-campus speech.

Fourth Amendment Unreasonable Search

The court noted that searches in a school setting are governed by principles established in New Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985). From T.L.O., in order to determine whether a search is reasonable, the Court must “consider first the ‘scope of the legitimate expectation of privacy at issue,’ then the ‘character of the intrusion that is complained of,’ and finally the ‘nature and immediacy of the governmental concern at issue’ and the efficacy of the means employed for dealing with it.”

The court pointed out that a person’s reasonable expectation of privacy depends in large part on the ability to exclude others from the place searched. The court found that it is well-settled law that individuals enjoy protection from intrusions on their private electronic communications, such as emails.

As a result, the court agreed “that one cannot distinguish a password-protected private Facebook message from other forms of private electronic correspondence.” It found that R.S.’ allegations show that “at least some of the information and messages accessed by the school officials were in R.S.’ exclusive possession, protected by her Facebook password.” It, therefore, concluded that R.S. had a reasonable expectation of privacy to her Facebook information and messages. Having established that R.S. had sufficiently alleged a reasonable expectation of privacy, the court then analyzed the nature of the search.

Based of the facts as alleged, i.e., R.S. admitted to conversations of a sexual nature that broke no laws or school policies, the court found there was “no indication at this stage that they tailored their search in any way,” and it was difficult to discern “what, if any, legitimate interest the school officials had for perusing R.S.’ private communications.” The court, therefore, concluded that R.S. had “alleged facts sufficient to show that she had a reasonable expectation of privacy at least with respect to her private Facebook messages and that the school officials had no legitimate interest in searching them against her will.”

The court then turned to the defendants’ claim that they were entitled to qualified immunity from R.S.’ Fourth Amendment claim. The court found that a “student’s right to be free from an unreasonable search – that is, a search without a justifying and legitimate government interest – of private correspondence in school is clearly established.” Noting the early stage of the litigation, it denied the defendants’ motion for qualified immunity.

R.S. v. Minnewaska Area Sch. Dist., No. 12-588 (D. Minn. Sept. 6, 2012)

[Editor's Note: In June 2012, Legal Clips summarized an  Associated Press (AP) article on NECN.com, which reported that in response to the federal lawsuit filed by three students expelled after commenting on Facebook about wanting to kill classmates, Griffith Public Schools (GPS) disputed that the comments were jokes and or that GPS had violated the students' free speech rights.  Instead, GPS charged the online postings “and this disturbing conversation posed a ‘true threat’ and two of the threatened students were so fearful of the threats that they missed classes and school.”

In March 2012, Legal Clips summarized a Mississippi federal district court decision in Bell v. Itawamba Cnty. Sch. Bd., which held that school officials did not violate a student’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that under Tinker, school officials can regulate off-campus speech/expression that causes a material or substantial disruption at school.

In January 2012, Legal Clips summarized articles from several national media outlets, which reported on the U.S. Supreme Court’s denial of certiorari in three student Internet speech cases, J.S. v. Blue Mountain Sch. Dist. (combined with Layshock v. Hermitage Sch. Dist.) and Kowalksi v. Berkeley Count Sch. In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or a fellow student, for which the student was disciplined by school officials.

In August 2011, Legal Clips summarized the Eighth Circuit panel decision in D.J.M. (referenced in the above case summary), which held that a school district that suspended a student for off-campus instant message communications with a classmate did not violate the student’s free speech rights because the student’s speech constituted unprotected true threats. The panel also concluded that the school district was justified in disciplining the student under the substantial disruption standard established in Tinker, based on Tinker’s language that school officials may discipline students for speech that occurs ”in class or out of it,” which “might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities.”]