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An “I ♥ Boobies” decision goes the other way; school ban on bracelet upheld

J.A. v. Fort Wayne Cmty. Sch., No. 12-155 (N.D. Ind. Aug. 20, 2013)

Abstract: A federal district court in Indiana denied a student’s request for a declaratory judgment and permanent injunction that would have allowed her to wear a cancer awareness bracelet bearing the caption “I ♥ Boobies” at school, and entered judgement for the school district.  The court concluded that the school district’s ban on the bracelets was justified under the standard articulated in Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986).  The court held that the school district “made an objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene or plainly offensive,” and therefore its ban was constitutional.

The court rejected the recent decision by the U.S. Court of Appeals for the Third Circuit in B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 U.S. App. LEXIS 16087 (3d Cir. Aug. 5, 2013), striking down a similar ban on the bracelets as a violation of a student’s right to free speech.  In B.H., an en banc opinion, the majority rested its holding on a conclusion that Morse v. Frederick, 551 U.S. 393 (2007), “establish[ed] new limits on a school’s ability to regulate student speech commenting on political or social issues.”

Facts/Issues: The Fort Wayne Community Schools district (FWCS) prohibits students from wearing “inappropriate” plastic bracelets that contain “messages that are solicitous, profane, [or] obscene.”  The policy is strictly enforced, and administrators confiscate banned bracelets.  In 2010, school administrators banned “I ♥ Boobies” bracelets, concluding that the terminology was “offensive to women and inappropriate for school wear,” making the bracelet “lewd, vulgar, obscene, solicitous, and/or plainly offensive speech.”

After the ban, FWCS confiscated a number of “I ♥ Boobies” bracelets across the school system.  Student J.A. started wearing the bracelet to school in December 2011.  J.A. received her bracelet as a gift from her mother, who is a breast cancer survivor.  The outside of the bracelet reads “”I ♥ Boobies (Keep a Breast).”  On the inside of the bracelet, the website of the Keep a Breast Foundation is printed, along with the inscription ““art. education. awareness. action.””  The Foundation states on its website that it uses the phrase “I ♥ Boobies”” to “speak to young people in their own voice.”   J.A. wore the bracelet for three months before a school administrator confiscated it in March 2012.

J.A. filed suit against FWCS in federal district court seeking a declaratory judgment and permanent injunction allowing her to wear the bracelet at school. She argued that the “bracelet promotes a positive breast cancer awareness message and that the school’s ban violates the First Amendment’s free speech protections.”  FWCS relied on” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) in defending the ban.

Ruling/Rationale: The district court denied J.A.’s motion for a declaratory judgment and permanent injunction, and entered judgment for FWCS.

The school district argued that the ban was constitutional under Fraser, and the court agreed.  Fraser established a school district’s right to ban speech that is lewd, vulgar, obscene, or plainly offensive.  Fraser further held that the authority to determine whether speech is lewd, vulgar, obscene, or plainly offensive rests with the school board.  Under Fraser, courts should defer to schools when they determine that student speech is lewd or vulgar. Deference is appropriate because educators, not judges, best know the sensibilities of the students, community standards, and the important contextual variables:

For these reasons, school officials who ““know the age, maturity, and other characteristics of their students”” are in a much better position to decide whether speech is vulgar than judges who are ““restricted to a cold and distant record.””  B.H. ex rel. Hawk v. Easton Area Sch. Dist., No. 11-2067, 2013 U.S. App. LEXIS 16087, at 34 (3d Cir. Aug. 5, 2013). Judges are ““outsiders”” who do not have the experience and competence to “”tell school authorities how to run schools in a way that will preserve an atmosphere conducive to learning.””  Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 671-672 (7th Cir. 2008); see also Brandt v. Bd. of Educ. of City of Chi., 480 F.3d 460, 467 (7th Cir. 2007) (“”[Schools] have an interest of constitutional dignity in being allowed to manage their affairs and shape their destiny free of minute supervision by federal judges.””).

The court stated that the dispositive question is “whether an objective observer could reasonably interpret the slogan as lewd, vulgar obscene, or plainly offensive.” Phrasing the issue this way gives school officials the deference to which they are entitled.  As a result, the subjective intent of the speaker is irrelevant.

The district court declined to adopt the reasoning of the Third Circuit in B.H. v. Easton Area Sch. Dist., No. 11-2067, 2013 U.S. App. LEXIS 16087 (3d Cir. Aug. 5, 2013).  In B.H., the Third Circuit modifed the traditional Fraser standard, holding “that a school can only limit student speech under Fraser if the speech can reasonably be interpreted as either: (1) plainly lewd, or (2) ambiguously lewd and cannot plausibly be interpreted as commenting on political or social issues.”  The Third Circuit arrived at this test by grafting Justice Alito’s concurring opinion from Morse v. Frederick, 551 U.S. 393 (2007), onto the Fraser standard.

Rather than following B.H., the court found itself in agreement with the Seventh Circuit’s decision in Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668 (7th Cir. 2008), which “expressly rejected the argument that [Justice] Alito’s opinion controls Morse.”  The court also noted that eight other appellate courts have adopted the rule expressed by the majority opinion in Morse, rather than Justice Alito’s concurrence.  The court concluded: “The majority’s opinion in Morse did not establish new limits on a school’s ability to regulate student speech commenting on political or social issues.”

“Therefore, the bracelet’’s commentary on social or political issues does not provide additional protection under the First Amendment. This Court will ask solely whether the school made an objectively reasonable decision in determining that the bracelet was lewd, vulgar, obscene or plainly offensive.”

The court determined that the word “boobies” is sometimes vulgar and that the phrase “I ♥ Boobies”” may be lewd or vulgar.  The court, therefore, concluded there was “evidence that a reasonable observer could interpret the bracelet as being vulgar.”  The court then evaluated the age and maturity of the students at J.A.’s school, and found that the “evidence in the record reveals a low maturity level at the school.”  It noted that a “number of students wore other bracelets with plainly lewd and obscene words written on them.”  In addition, the record contained several instances of student misconduct precipitated by the bracelets. The court determined that the “school could therefore reasonably conclude that the bracelet contained sexual innuendo that was vulgar within the context of J.A.’s school.”

The district court stressed that “[w]hen confronted with ambiguously vulgar slogans, federal courts have sided with the school administrators’ decision to ban them.”  It pointed out that if the court adopted J.A.’s analysis and issued the injunction, a school official’s ability to “regulate speech that is lewd but supports a noble cause will be limited.”  It concluded: “School officials, who know the age, maturity, and other characteristics of their students better than federal judges, are in a better position to decide whether to allow these products into their schools. Issuing an injunction would take away the deference courts owe to schools and make their job that much harder.”

J.A. v. Fort Wayne Cmty. Sch., No. 12-155 (N.D. Ind. Aug. 20, 2013)

[Editor's Note: In May 2012, Legal Clips summarized an article in the Fort Wayne Journal Gazette providing background on J.A.'s suit against FWCS.  

In August 2013, Legal Clips summarized the Third Circuit's decision in B.H. v. EASD, holding that the school district’s ban on “I ♥ boobies” bracelets violated students’ First Amendment free speech rights.  The Third Circuit’s majority concluded that the ban could not be justified under either the Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), substantial disruption standard or the Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), vulgar, lewd, profane, or plainly offensive speech standard.]

Assistant principal who publicly opposed superintendent’s election states a valid claim that her severance was retaliatory

Mooney v. Lafayette Cnty. Sch. Dist., No. 12-60753 (5th Cir. Aug. 8, 2013)

Abstract: A U.S. Court of Appeals for the Fifth Circuit (TX, LA, MS) three-judge panel has ruled that a former assistant principal stated a valid claim that her school district retaliated against her for engaging in political speech.  It found that she had provided sufficient evidence to survive a motion for summary judgment.

However, the panel rejected the assistant principal’s Title VII retaliation claim based on her opposition to unlawful gender discrimination.

Facts/Issues: Lisa Mooney began her career with Lafayette County School District (LCSD) in Mississippi in 2001 as a speech pathologist at Lafayette Elementary School (LES).  In 2006, she was promoted by LES Principal Margaret Boyd to assistant principal.  Her first year as assistant principal, 2007, coincided with a local election for LCSD’s superintendent.  Mooney supported the challenger for the office rather than the incumbent.

During the campaign, Boyd and LCSD Assistant Superintendent Ben McClung attempted to get Mooney to switch her support to the incumbent on a number of occasions.  Mooney remained steadfast in her support of the challenger. The incumbent superintendent won re-election.

After the election, Boyd claimed that Mooney’s work performance began to deteriorate.  However, no formal complaints were made against Mooney by LCSD until May 2009, roughly a year and a half after the problems purportedly began.  That complaint occurred simultaneously with Mooney being told that she was being demoted to her prior position of speech pathologist.

Initially, Mooney was told that she being demoted due to budget cuts, and it was suggested that her duties may be assumed by a male.  After she protested, however, the reason for her demotion changed: LCSD told her that the demotion was due to her lack of punctuality and difficulty in handling parent relations.

Mooney filed a written protest.  In her protest, Mooney denied any performance problems, describing parent surveys showing that the parent satisfaction ratio at her school was equal to or better than any other school in the district, and documenting a decrease in disciplinary problems at the school since she had been assistant principal.  She further noted that her education level and her experience exceeded that of male administrators.  Mooney asked whether she was being transferred to another administrative role “because [she] was a woman.”  LCSD then decided not to demote Mooney at all.  Instead, it placed her on a performance improvement plan (PIP) for the upcoming school year, 2009-2010.

The PIP designated punctuality and parent relations as two problems that needed to be remedied by Mooney.  Mooney initially showed progress under the plan but by the end of the year, according to Boyd, she had not improved to a sufficient extent.

In March 2010, the superintendent ordered a reduction in force (RIF), to be implemented by Boyd.  As part of her cost-cutting strategy, Boyd says that she chose to eliminate several teacher and staff positions and not renew Mooney’s assistant principal contract in May 2010.

Mooney was the only administrator in the district who was removed from her position as part of the RIF, but “23 to 24 other positions” were eliminated, and roughly $400,000 was saved by LCSD.  LCSD did not hire another assistant principal during the year of the RIF.  When it did hire for that position, the district chose a female.

Mooney filed suit in federal district court against LCSD under § 1983 claiming that her contract was not renewed in retaliation for engaging in speech (in violation of the First Amendment) and for opposing gender discrimination (in violation of Title VII).  Mooney contended that the reason given for the non-renewal of her contract – the RIF– was pretextual, pointing to an email from Boyd to the superintendent that listed all the positions to be eliminated in the RIF but which did not include Mooney’s name or position.  Mooney alleged that the superintendent did not follow the list and instead chose to retaliate against her by not renewing her contract.

The district court granted summary judgment on behalf of LCSD as to both claims.

Ruling/Rationale: The Fifth Circuit panel vacated the district court’s dismissal of Mooney’s § 1983 First Amendment retaliation claim, affirmed its dismissal of the Title VII claim, and remanded the case to the lower court for further proceedings on the § 1983 claim.

Addressing the First Amendment claim, the panel stated that “the First Amendment precludes a discharge based upon an employee’s exercise of her right to free expression if two criteria are satisfied: first, the expression relates to a matter of public concern, see Connick v. Myers, 461 U.S. 138, 146 (1983), and, second, the employee’s interest in commenting upon matters of public concern must outweigh the public employer’s interest in promoting the efficiency of the public services it performs through its employees.  See Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)”

For Mooney to prevail on her First Amendment retaliation claim she must prove that:

 (1) she suffered an adverse employment action; (2) her speech involved a matter of public concern; (3) her interest in speaking outweighed the employer’s interest in promoting efficiency in the workplace; and (4) the speech motivated the employer’s adverse employment action.

If the prima facie elements of a First Amendment retaliation claim are met, the claim is then evaluated under the “mixed-motive” framework – not the McDonnell Douglas pretext analysis

The panel determined that Mooney clearly satisfied the first three prongs of the prima facie test but the fourth prong, concerning causation, was a closer question.

The fourth prong requires the plaintiff to show that the protected speech “was a motivating factor in her discharge.”  The district court had found that the period between the protected activity and Mooney’s non-renewal– almost three years–was far too long to support an inference of retaliation.  The panel commented that temporal proximity between the time of the protected activity and the adverse employment action should be viewed in light of all the evidence.  The causal connection prong may be satisfied when the plaintiff relies upon a chronology of events from which retaliation may plausibly be inferred.

The panel concluded that Mooney’s alleged chronology of events “is enough for a reasonable juror to infer retaliatory causation, especially considering that the ‘causal link’ need only be that her protected activity was one reason motivating LCSD’s decision.”

Mooney, however, had not yet secured her right to a trial.

The panel pointed out:

In First Amendment retaliation cases involving public employees, once an employee has met her burden of showing that her protected conduct was a motivating factor in the employer’s adverse employment action, the question becomes whether the employer has met its burden to show, by a preponderance of the evidence, that it would have taken the same adverse employment action against the employee even in the absence of the employee’s protected conduct.

If the employer meets its burden, then the infringement on the employee’s speech does raise to the level of a constitutional violation justifying remedial action.  The district court concluded that LCSD had met this burden due to: (1) Mooney’s poor job performance, (2) her lack of punctuality in arriving to work, and (3) the district’s need to effect cost savings through the RIF.

The panel, however, concluded that genuine issues of material fact existed in each of these areas.  Accordingly, the district court had erred when it entered summary judgement for LCSD.

Lastly, the panel dismissed Mooney’s Title VII claim stating: “This Title VII retaliation claim is unsupported by any evidence connecting gender to her termination.”  It continued, “It does not matter that Mooney has proved the other required prima facie elements of Title VII retaliation because, crucially, she has not introduced any evidence of causation.”

Mooney v. Lafayette Cnty. Sch. Dist., No. 12-60753 (5th Cir. Aug. 8, 2013)

[Editor's Note: In August 2013, Legal Clips summarized a decision by  U.S. Court of Appeals for the Eleventh Circuit (AL, GA, FL) three-judge panel in Leslie v. Handcock Cnty. Bd. of  Educ. holding that board members sued in their individual capacity are entitled to qualified immunity from a suit by a superintendent and assistant superintendent alleging that they were discharged from their positions in retaliation for exercising their free speech rights.  It concluded that the law was not clearly established that a public employer can be held liable for retaliation against a policymaking or confidential employee for speech related to policy or politics.]

California law guarantees transgender students access to all sex-segregated school programs and facilities

California Gov. Jerry Brown has signed legislation allowing students in California schools to compete on sports teams and use facilities, including restrooms, based on their gender identity, regardless of whether they are listed as male or female in official campus records, reports the Los Angeles Times. The law is aimed at all sex-segregated school programs and facilities, allowing female students who identify themselves as male to join male teams and vice versa.

Opponents of the law say it infringes on the privacy rights of students, including girls who might not want biological boys sharing their showers and changing rooms. Some opponents said the law might be exploited — for instance, by boys who want a competitive advantage by joining the girls’ swim team.

Supporters of the legislation, on the other hand, say that Los Angeles Unified School District has had a similar policy in place for eight years without problems.

Source: Los Angeles Times, 8/12/13, By Patrick McGreevy

[Editor's Note: In August 2013, Legal Clips published a Sua Sponte item reporting that the Arcadia Unified School District (AUSD) had entered into a resolution agreement with the U.S. Department of Education, Office for Civil Rights and the U.S. Department of Justice, Civil Rights Division which ends the federal agencies’ investigation into allegations of discrimination against a transgender student.  Under the resolution agreement, AUSD agreed to continue accommodations it began providing the student over a year ago.

Under the agreement, AUSD agrees to continue to treat the student like all other male students.  The agreement also provides that AUSD will: 1) work with a consultant to create a safe, nondiscriminatory learning environment for students who are transgender or do not conform to gender stereotypes; 2) amend its policies to designate gender identity as a form of discrimination; and 3) provide annual training on preventing gender-based discrimination.]

Civil rights group files legal challenge to Alabama’s tuition tax credit law

The Montgomery Advertiser reports that the Southern Poverty Law Center (SPLC) has filed suit in federal court seeking to enjoin implementation of the Alabama Accountability Act (AAA), claiming it does not extend its benefits equally to all students in schools designated as failing.  The suit, filed on behalf of eight Black Belt elementary and middle school students, alleges that the plaintiffs cannot afford private school tuition, even with the tax credits and scholarships extended under the law.  The suit also contends that even if the students could afford the tuition, there are no participating private schools available in the area, nor is transportation available to other schools.

According to SPLC’s president Richard Cohen, the AAA has created “two classes of students” in the state.  By diverting money from the Education Trust Fund to tax credits or scholarships, Cohen said, the effect of the law would be to make schools listed as failing worse.  “It will siphon away millions of dollars from public schools and not help the failing ones,” he said.  “It will make the failing ones worse than they are today.”

Gov. Robert Bentley did not comment directly on the allegations in the lawsuit, but stressed provisions in the legislation which allow schools to apply for waivers from certain laws governing schools.  The governor did not mention the tax credits or scholarship-granting organizations in the law.  Bentley pushed for a two-year delay on the tax credits in the last Legislative session, a delay that was rejected by lawmakers.

Supporters of the law have said it will foster competition and give students a chance to escape failing schools.  Sen. Del Marsh, who was the driving force behind the tax credit portion of the law, said in a statement that it “made no sense” to challenge the law on the grounds that it limited options.  “This is more of the same from those who would rather maintain the status quo,” Marsh said.  “We will continue working to make sure students and parents in failing schools have options to receive a quality education.”

Nearly 40% of the schools designated as failing are in the Black Belt, according to the suit.  In the complaint, the suit cites numerous instances of poor supplies and inadequate textbooks in the schools.

Source: Montgomery Advertiser, 8/20/13, By Brian Lyman

[Editor's Note: SPLC's press release announcing the suit states: "An Alabama law that gives tax breaks to families transferring their children to successful schools discriminates against impoverished students in the state’s Black Belt region who are trapped in failing school."  According to SPLC President Cohen:

“When the Act was passed, state officials promised it would benefit students regardless of their family income or where they lived.  The reality is that thousands of children in Alabama’s Black Belt, most of them African Americans below the poverty line, are trapped in failing schools and cannot take advantage of the Act.” 

The legal complaint, which is based on the Fourteenth Amendment's Equal Protection Clause, seeks declaratory and injunctive relief.  The essence of SPLC's complaint is that the benefits of AAA's tuition tax credit provisions are not equally available to all students.

Although the SPLC challenge is based on equal protection, tuition tax credit laws in other states have been challenged on the ground that they violate state constitutional provisions prohibiting state aid to religious institutions.  In June 2013, Legal Clips summarized a decision by a Stafford County Superior Court in Duncan v. State of New Hampshire holding that New Hampshire’s tuition tax credit law violates the No-Aid Clause of Part II, Article 83 of the New Hampshire Constitution.  The court concluded: “The program has been shown to have ‘money raised by taxation’ inevitably go toward educational expenses at nonpublic ‘religious’ schools without restriction regarding how the money may be used.  The benefit to ‘religious’ schools will be inevitably and obviously more than incidental or de minimis.”]

Indiana teachers’ union and NEA agree to pay $14 million to settle suit over mismanaged health insurance premiums

The Indiana Business Journal reports that the Indiana State Teachers Association (ISTA) and its parent organization, the National Education Association (NEA), have agreed to pay $14 million under a tentative settlement to 27 Indiana school corporations whose employees contributed premiums to the now-defunct Indiana State Teachers Association Insurance Trust for medical insurance.  A 2009 lawsuit brought by the Securities Division of the Indiana Secretary of State claimed that the ISTA Insurance Trust had sold the schools unregistered securities, commingled the funds of its medical and long-term disability insurance plans, and falsified reports to the schools.

Those allegedly falsified reports claimed the schools had amassed $27 million in excess premium payments, which were being held in “claims stabilization reserves” to offset future premium increases.  The suit contended that in reality, the ISTA Insurance Trust began using those claims stabilization reserves to pay off claims being generated by members in its long-term disability insurance plan.

Once finalized, the settlement calls for ISTA and NEA to write a check for the $14 million within 10 days.  The money will be paid to the Secretary of State’s office, which will distribute it to the school corporations.

Mark Shoup, a spokesman for ISTA, said the teachers union hopes the settlement puts its troubles with the insurance trust behind it.  “It allows us as ISTA, the teachers organization, to really move forward and focus on our mission, which is being the voice of teachers,” Shoup said.

The settlement will pay each school corporation roughly 52 cents for every dollar they were told was being held in reserve for them at the ISTA Insurance Trust.  “We think it’s more than fair,” Shoup said.  “At this point, we think it’s something everyone can live with.”

Letters were mailed on Thursday informing the school districts of the settlement terms, which also require the school districts to release ISTA and NEA from any further legal claims.  If any of the 27 school corporations does not agree to the settlement, then the case is set to proceed to trial Oct. 28.

“We are confident that we have a majority of the schools in agreement,” said Indiana Secretary of State Connie Lawson.  She added that while the state believes ISTA and NEA should pay back all $27 million, the settlement would avoid the years-long legal battle that would be necessary to win such a judgment against them.

The collapse of the ISTA Insurance Trust was the result of poor investment decisions that were then exposed by the global recession and financial meltdown of 2008 and 2009.  From 2004 to 2008, the ISTA Insurance Trust increased the percentage of its assets invested in “alternative investments,” which tend to be hard to value and hard to sell, from less than 20 percent to more than 93 percent.  From the fall of 2007 until the spring of 2009, the value of the trust’s assets fell by 55 percent, leaving it $67 million short of its liabilities

The settlement also brings to a close an ugly chapter for the ISTA.  The revelation of the losses in its insurance trust led to the resignation of its longtime executive director, Warren Williams, and the effective takeover of the state organization by its parent, the NEA.

Source: Indiana Business Journal, 8/13/13, By J.K. Wall

Private residential costs questioned in Delaware

According to the Cape Gazette, the taxpayers, school districts, and various state departments in Delaware spend millions of dollars every year to educate special needs students placed in full-time residential care facilities.  School officials refer to these students as “high behavior” students who cannot be educated in a regular classroom.  The individual tuitions can rise into the hundreds of thousands of dollars annually.

Although the news report acknowledges that all children are entitled by law to a free and appropriate public education, it concludes that the high cost of residential care raises questions.  What services are special needs children receiving in return for tuition costs?  Who evaluates the cost of services, and who determines whether the services are effective?

Months of effort to uncover answers to these questions have failed to produce any understanding of these costs.  Repeated efforts to access facilities that accept taxpayer money or obtain information about services students receive have been met with refusals on grounds that providing this information would violate student privacy.  There is very little oversight of special education dollars – not even school board members or district officials know what services children actually receive.

Cape Henlopen Superintendent Robert Fulton and others said districts do not receive an itemized bill; the district simply pays an amount the Delaware Department of Education (DDE) says the district owes.  State education officials, on the other hand, said they receive no itemized bill, and that the districts have contracts with specific costs.

Last year the Cape Henlopen School District Board of Education members began questioning overall special education costs in the school district.  At the August 2012 school board meeting, district officials gave a thorough presentation on the high costs associated with placing some students in full-time residential care.

The Cape Gazette says it has submitted Freedom of Information Act requests and questions to several state agencies requesting detailed costs and information on residential care.  Asked for the number of students and costs to attend each residential facility, DDE cited student privacy issues under the Family Educational Rights and Privacy Act (FERPA) and refused to release information.

After months of requests, the department released student enrollment and costs for only one residential facility – AdvoServ, a residential facility that serves 17 Delaware students placed by DDE.  Other than information on AdvoServ, DDE agreed to release only the total amount of taxpayer money spent on all residential facilities and the total number of students who attend them, again citing the need to protect student privacy.

Delaware’s Department of Education spent $7.6 million last school year to send 33 special needs students to residential facilities throughout the region – an average of more than $230,000 per year per student.  Tuitions paid by school districts and the state together – all taxpayer dollars – range from $88,000 to $441,000 a year, said Alison May, spokeswoman for the Delaware Department of Education.  Generally, she said, districts pay 30 percent of total tuition; DDE pays the remaining 70%.

Mary Ann Mieczkowski, director of Exceptional Children Resources Teaching and Learning Branch for the Delaware Department of Education, defended the high cost of residential care.  “We’re always great stewards of taxpayer dollars; however, the needs of the student need to be addressed first,” she said.

The free appropriate public education (FAPE) provision required by law is the driving force behind residential placement decisions, Mieczkowski said.  When asked whether $200,000 a year for residential placement meets legal requirements when compared to the average Delaware student cost of $11,300, she said, “If their needs far exceed the average student, we have to meet their needs.”

A search of lawsuits filed by parents who wanted a school district to pay for costly school services for their special needs students revealed two local cases.  In both cases, the court ruled in favor of the school and school district to limit costs.

Source: Cape Gazette, 8/16/13, By Melissa Steele

[Editor's Note: In August 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Third Circuit three-judge panel in Munir v. Pottsville Area Sch. Dist. holding that the parents of a student, who the parents unilaterally placed in a private residential facility and later a private boarding school in order to address the student’s mental health problems, were not entitled to reimbursement for the costs of those placements under IDEA.  The panel concluded that the student attended the private residential center to treat his mental health needs, rather that his educational needs.  The educational component of the center was state accredited, but the educational benefit to the student was incidental to the primary service, which was therapeutic.

In January 2013, Legal Clips summarized Jefferson Cnty. Sch. Dist. R-1 v. Elizabeth E., No. 11-1334 (10th Cir. Dec. 28, 2012), a unanimous decision by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit that the parents of a special education student, who her parents unilaterally placed in a private treatment facility, were entitled to reimbursement for tuition expenses under the IDEA.  Supreme Court review was sought, but denied.]

Webinar opportunity on the hot topic of police involvement with schools

NSBA sponsors Working with Law Enforcement:  Tips for School Attorneys and School Boards

As public school district leaders and their attorneys prepare for the start of another school year, the National School Boards Association’s Council of School Attorneys also begins its webinar season with a practical look at one of the hottest topics facing school attorneys: the numerous and legally complex connections between public school districts and their local law enforcement agencies.

School officials and law enforcement departments regularly work together on a variety of student matters and safety issues.  Police involvement in school activities, however, is coming under stronger scrutiny.  Recent cases such as the Kentucky decision requiring the Mirandizing of students during principal questioning are exposing practices that need school attorney review.  Kentucky officials are asking the Supreme Court to review that decision, but in the meanwhile school attorneys and school leaders should refresh their understanding of the laws implicated by police work at schools.

This webinar will address violent attacks on school property and other public safety emergencies, police questioning of students, police access to student records, changes to FERPA, drafting school district–police department MOUs, SRO roles and responsibilities, establishing Law Enforcement Units, and more.  Join Connecticut school attorney and COSA board member Anne Littlefield for a practical overview of the legal standards that affect the school-law enforcement relationship.  Come with your questions!

August 21, 2013, 1:00 p.m. – 2:15 p.m.

Host: Mark Blom, NSBA Senior Staff Attorney

Presenters: Anne H. Littlefield, partner, with Jessica Ritter and Jessica Soufer (research), Shipman & Goodwin LLP, Hartford, CT

Register Here.

NSBA’s Council of School Attorneys offers ongoing webinars for school attorneys, school board members, and educators interested in the legal issues surrounding school district governance and operations.

Just announced:  a two-part webinar series offering in-depth review and analysis of the Family Educational Rights and Privacy Act.

Check out COSA webinar descriptions and registration information here!



Students challenge California district’s social media policy creating standards and sanctions for students in athletics and extracurriculars

Attorneys representing the Student Press Law Center (SPLC) have sent a letter to the Lodi Unified School District (LUSD) asking its school board to suspend a controversial social media policy, says the Recordnet.  The letter from attorney Thomas Burke asks LUSD to suspend the new contract required of student athletes and extracurricular club members that allows punishments for inappropriate or “bullying behavior” on social media outlets.

Students have complained that the contract is too vague and are upset that they could be in trouble for “liking” somebody else’s post or marking a post as a “favorite” or for adult misinterpretation of their own posts.  The letter provides several pieces of case law arguing that the contract is too broad in its wording and “violates federal and state laws and infringes on students’ fundamental constitutional rights.”  The letter states in part: “[T]he policy also violates the First Amendment Rights by giving school officials unfettered discretion if students’ speech – even speech taking place off campus and having no connection to school business – is ‘inappropriate,’ and thus subject to sanction.”

Board President Ralph Womack said members have already planned to re-examine the social media contract at their Aug. 20 meeting, which could lead to some rewording of the agreement that students must sign.  The student agreement is essentially a student waiver saying they agree to be punished – benched, suspended or removed from their teams or clubs – for their behavior on social media.

Womack said he encourages student involvement in debate over issues, including the current First Amendment one.  However, he believes the students may be taking it too personally.  “They are focusing on the wording instead of focusing on the intent,” said Womack, later adding that he trusts that administrators would not abuse the power to punish students under the contract for things such as quoting controversial literature or rap lyrics.  “Maybe it needs to be reworded, but it’s really sad that they feel the need to get a lawsuit and an attorney instead of coming out and discussing it.”

Lodi Unified is committed to end bullying, Womack said.  The district has seen a rise in bullying in social media in recent years, and has seen national news coverage from other areas where teens have committed suicide because of constant online attacks, Womack said.  Womack added that athletics and clubs are privileges, not rights, so he stands behind the contract’s validity.  It’s similar, he said, to not allowing an athlete with a GPA less than 2.0 to participate in sports.

Burke says in the letter that the policy “deprives students of their constitutionally guaranteed free access to extracurricular activities unless they submit to vague, overly broad restrictions on their speech.”  He cites the lawsuit FCC v. Fox TV Stations where the Supreme Court ruled “that regulated parties should know what is required of them so they may act accordingly,” while requiring “precision and guidance … so that those enforcing the law do not act in arbitrary or discriminatory way.”

Source: Recordnet, 8/13/13, By Keith Reid

[Editor's Note: The gist of SPLC's complaint is that LUSD's attempt to  regulate the students' off-campus speech violates their First Amendment free speech rights.  In March 2013, Legal Clips summarized an article on phillyBurbs.com reporting that the Delran Board of Education had decided to throw out the school district’s 24/7 rule from the student code of conduct.  The decision came after parents legally challenged the policy when school officials imposed punishments that barred some students from going on a senior trip to Florida after they were caught at an underage drinking party in December 2012.  

In February 2013, Legal Clips summarized an article in the Courier-Post reporting that the Haddonfield School Board had voted to eliminate the “24/7” student-conduct policy at Haddonfield Memorial High School.  Haddonfield’s policy was initiated in 2009 to curb alcohol and drug use outside of school by students, who could be suspended from extracurricular activities for violating the policy.] 

Montana district sued under Voting Rights Act; precincts alleged to favor white residents over American Indian in board elections

According to an Associated Press (AP) report in the Great Falls Tribune, the America Civil Liberties Union of Montana (ACLU-MT) has filed suit against Wolf Point School District charging that school board voting districts are arranged to favor white voters in a predominantly Native American area.  The suit contends that the voting districts are drawn so that white residents have a proportionally greater say on the school board than American Indian residents.

ACLU-MT is asking the court to order the school board to draw new voting districts.  According to the suit, one predominantly white voting district has a population of 430 people and elected three members to the board.  That is one board member for every 143 residents.  By comparison, the predominantly Native American voting district has a population of 4,205 people and elects five board members, or one board member for every 841 residents.

“This clearly violates the principle of one person, one vote, and creates a school board where white members of the district are overrepresented and Native Americans are underrepresented,” ACLU-MT Legal Director Jon Ellingson said.  “The school district has an obligation under both state and federal law to redraw voting districts every 10 years based upon accurate population numbers.  It’s long past time for the district to do that.”

The Wolf Point School District website said 80 percent of its students are Native American.  The suit also points out that none of the members of the school board are enrolled members of a tribe.

Source: Great Falls Tribune, 8/8/13, By Matt Gouras (AP)

[Editor's Note: The ACLU-MT's legal complaint makes two claims: (1) a Fourteenth Amendment equal protection claim; and (2) a Section 2 of the Voting Rights Act claim.

In June 2013, Legal Clips summarized a decision by a Georgia federal district court in Georgia State Conference of NAACP v. Fayette Cnty. Bd. of Comm. holding that the county’s at-large method of electing the county board of commissioners and the board of education violated § 2 of the Voting Rights Act because the present voting scheme virtually insured that no African-American would be elected to either board.]

New York state district settles gay harassment suit with outreach and intervention measures

According to the Watertown Daily News, Indian River Central School District (IRCSD) has agreed to settle a federal discrimination suit brought by two former students alleging anti-gay harassment.  Charles P. Pratt and his sister, Ashley E. Petranchuk, charged that he was harassed, called names, physically assaulted and threatened for being gay before he dropped out of high school when he was 15 years of age.

The suit claimed IRCSD officials were aware of the problems but refused to help him.  He and his sister also claimed administrators shot down his attempts to form a Gay-Straight Alliance at the high school.

Details of the settlement were not released.   However, Lambda Legal (LL), a national organization that defends the rights of gay, lesbian, bisexual and transgender people, issued a statement revealing that as part of the settlement IRCSD had agreed to:

  • hire a consultant for the upcoming school year to provide training and education of faculty, staff and students about responding to student harassment.
  • gather information about harassment of students and share that information with other district schools as the students move up in grades and move to different buildings.
  • administer anti-harassment surveys of students annually, with questions designed to ascertain “hot spots” where bullying or harassment is occurring.
  • create clear procedures for students to start and continue extracurricular clubs and, if a request is denied, provide a written reason why.
  • adopt peer leadership programs in its intermediate, middle, and high schools to detect, prevent and address harassment.
  • ensure that district policies and procedures concerning harassment and student clubs are available on the district’s websites.
  • provide live, interactive staff training and student education concerning lesbian, gay, bisexual and transgender student harassment.

Shortly after the suit was filed in 2009, IRCSD agreed to allow Petranchuk to form a Gay-Straight Alliance, insisting that it never denied her request to form a club but said she would need a faculty adviser.  The hurdle was cleared when the district recruited a faculty member to serve as adviser.

Source: Watertown Daily News, 8/9/13, By Brian Kelly

[Editor's Note: In July 2013, Legal Clips summarized an article in the Indianapolis Star reporting that the Indianapolis Public School District had agreed to pay $65,000 to a student who was expelled after firing a stun gun in the air at Tech High School (THS), which he says he fired to scare away a group of THS students who were bullying him.  The settlement, which also includes expungement of the expulsion from the student’s record, seeks to end a federal lawsuit brought by the student and his mother.]

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