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Georgia appellate court rules parents of minor who libeled classmate by creating false Facebook account and posting defamatory statements and images to that account using a computer and Internet access provided by the parents can be held liable based on a theory of negligent supervision

Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)

Abstract: The Georgia Court of Appeals has ruled that the parents of a minor, who libeled a classmate by creating a false Facebook account and posting defamatory comments and images to that account, using a computer and Internet access provided by the parents, can be held liable for negligent supervision. However, the appellate court ruled that the parents could not be held liable as landowners imputed with a duty to remove the defamatory content that had been placed on the false Facebook account from their property. It, therefore, reversed in part and affirmed in part the trial court’s grant of summary judgment to the parents of the minor who libeled his classmate.

Facts/Issues: Dustin Athearn, a who was 13 years old, and his friend Melissa Snodgrass decided to have some fun at a classmate’s expense by creating a fake Facebook page for that person. Dustin used a computer provided by his parents, Sandra and Michael Athearn, and the family Internet account. He created a new Facebook account in his classmate Alexandria (Alex) Boston’s name. Dustin used an altered picture of Alex for the Facebook profile. He and Melissa added information to the unauthorized profile, which indicated, inter alia, that Alex held racist viewpoints and a homosexual orientation. Dustin and Melissa also caused the persona to issue invitations to become Facebook “Friends” to many of Alex’s classmates, teachers, and extended family members.  Within a day or two the account was connected as “Facebook Friends” to over 70  other Facebook users.

Dustin and Melissa continued to add information to the persona’s profile and caused the account to post status updates and comments on other users’ pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs. Alex suspected that Dustin was involved, because she recognized the profile photo as one he had taken at school. Alex’s parents, Amy and Christopher Boston, approached the school’s principal, Cathy Wentworth, for help. On May 10, 2011, Wentworth called Dustin and Melissa to her office. They admitted their involvement, and each signed a written statement.

Wentworth assigned them to in-school suspension for two days for their harassment of Alex. She called their parents. She also sent home a “Middle School Administrative Referral Form” to explain the disciplinary action. The Referral Form included the following “Description of Infraction: [Dustin] created a false Facebook page in another student’s name, pretended to be that person, and electronically distributed false, profane, and ethnically offensive information.”   Dustin’s mother, Sandra Athearn, reviewed the form, signed it and discussed the incident with her husband, Michael. The Athearns disciplined Dustin by forbidding him from seeing his friends after school for one week.

The unauthorized profile and page remained accessible to Facebook users until Facebook officials deactivated the account on April 21, 2012. During the 11 month period that the unauthorized profile and page could be viewed, the Athearns made no attempt to view the unauthorized page, and they took no action to determine the content of the false, profane, and ethnically offensive information that Dustin was charged with electronically distributing.

They did not attempt to learn to whom Dustin had distributed the false and offensive information or whether the distribution was ongoing. They did not tell Dustin to delete the page. They also made no attempt to determine whether the false and offensive information Dustin was charged with distributing could be corrected, deleted, or retracted.

On April 3, 2012, The Bostons filed suit in state court against Dustin and his parents. The suit claimed that Dustin had defamed Alex by creating and posting to the false Facebook account. It also alleged that Dustin’s parents had breached their duty as parents to supervise their minor child and breached their duty as landowners to remove defamatory content existing on their property. In addition, the suit alleged that Dustin’s actions constituted intentional infliction of emotional distress.

The Athearns filed a motion for summary judgment and the trial court granted their motion.The Bostons appealed the case. The Bostons’ appeal contended that questions of material fact existed regarding whether the Athearns were negligent in failing to compel Dustin to remove the Facebook page once they were notified of its existence. In addition, they contended that questions of material fact remained regarding whether the Athearns, as landowners, breached a duty to remove defamatory content existing on their property.

Ruling/Rationale: The Georgia Court of Appeals affirmed in part and reversed in part the trial court’s grant of summary judgment in favor of the Athearns. Addressing the question of whether the Bostons had stated a claim of negligent supervision that should have gone to a jury, the appellate court stated that the “key question is the foreseeability of the harm suffered by the plaintiff, that is, whether the parents had knowledge of facts from which they should have reasonably anticipated that harm to another would result unless they controlled their child’s conduct.” It pointed out that the question of whether the parents failed to exercise ordinary care in supervising or controlling their child is in general one for a jury to decide “when the circumstances support an inference that the parents were on notice that, absent their intervention, injury was likely to result from the child’s conduct.”

While conceding that the Atherans may not have been able to anticipate Dustin’s misuse of the computer and Internet in the first instance to cause harm with malicious intent, the appellate court stressed that “they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile.”  As a result, the court rejected the Athearns’ argument that they could not be held liable for negligently supervising Dustin’s use of the computer and Internet account. It concluded: “While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication.”

The appellate court determined that given the nature of libel, that the initial tortious act could continue to be published to additional readers after the first publication, “the defamatory content persists in a public forum without public correction or retraction.”  It concluded that “a reasonable jury could find that, after learning on May 10, 2011, of Dustin’s recent misconduct in the use of the computer and Internet account, the Ahearns failed to exercise due care in supervising and controlling such activity going forward.” Based on the finding, the appellate court stated: “Given that the false and offensive statements remained on display, and continued to reach readers, for an additional eleven months, we conclude that a jury could find that the Athearns’ negligence proximately caused some part of the injury Alex sustained from Dustin’s actions (and inactions).” It, therefore, reversed that part of the trial court’s decision granting the Athearns summary judgment on the negligent supervision claim.

However, the appellate court upheld that portion of the trial court’s decision granting the Athearns summary judgment on the claim that they had breached their duty as landowners to remove defamatory content existing on their property. After stating, it would set “aside the novel and abstract questions the Bostons’ argument raises regarding where Internet content is ‘exhibited,’” the appellate court pointed out that the Bostons “failed to identify any evidence that, apart from exercising their parental power to control Dustin’s conduct, they had the ability to remove the defamation.” It found: “There is no evidence that the Athearns unilaterally had the ability to take down the unauthorized Facebook page by virtue of the fact that it was created on a computer in their home, because it was created using an Internet service they paid for, or otherwise.” The court held that because there was no evidence to support this theory of recovery, the trial court did not err in granting summary judgment to the Athearns.

Boston v. Athearn, A14A0971 (Ga. App. Ct. Oct. 10, 2014)

[Editor’s Note: As the facts clearly spell out the online student speech/expression in this case took place off-campus using a home computer. Nonetheless, the Bostons first took their complaint to school officials. In July 2010, Legal Clips summarized a New York Times article reporting that schools these days are confronted with complex questions on whether and how to deal with cyberbullying, which is an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites. Affronted by cyberspace’s escalation of adolescent viciousness, many parents are looking to schools for justice, protection, and even revenge. But many educators feel unprepared or unwilling to be prosecutors and judges.  

Although a number U.S. Court of Appeals Circuits have weighed in on the question of whether school officials may discipline students for off-campus online speech consistent with the First Amendment, the U.S. Supreme Court has declined to review cases from the Second, Third and Fourth Circuits] 


University of New Mexico student’s free speech claim survives motion to dismiss in federal court

Pompeo v, Board of Regents Univ. of New Mexico, No. 13-0833 (D.N.M. Sept. 29, 2014)

Abstract: A federal district court in New Mexico rejected the student’s assertion that her curricular speech was governed by the standard enunciated in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which holds that restrictions on curricular speech are permitted provided they are reasonably related to legitimate pedagogical concerns subject to the caveat that such restrictions are viewpoint neutral. However, it concluded that the student had pleaded facts sufficient to show there was a First Amendment conflict between the ” all-views-are-welcome” promised in the syllabus versus the instructor’s “only-those-views-I-personally-agree-with-are-acceptable” implementation of the classroom forum.

The court said, “The Court questions whether a university can have a legitimate pedagogical interest in inviting students to engage in “incendiary” and provocative speech on a topic and then punishing a student because he or she did just that.” It found that the student had not forfeited her First Amendment protections because she expressed views on homosexuality that some might find offensive.

The court held that the student had stated a plausible case against her instructor for violation of the student’s First Amendment free speech rights. It, likewise, found that the claim against the instructor’s supervisor was plausible either through the theory of ratification of the instructor’s actions or independently based on supervision of the independent study course to which the student was assigned after being forced to withdraw from the instructor’s class.

Finally, the district court concluded that the student’s First Amendment rights were clearly established at the time the alleged violation took place, and, therefore, the qualified immunity issue was no longer in play.

Facts/Issues:  Monica Pompeo enrolled in a class at the University of New Mexico (UNM) titled “Images of (Wo)men: From Icons to Iconoclasts.”  Adjunct Professor Caroline Lawson Hinkley chose the title to spark “incendiary” class discussions. The syllabus assured students that “it’s quite clear that we do not expect anyone to necessarily agree with the positions and arguments advanced in our work. There’s controversy built right into the syllabus, and we can’t wait to hash out our differences.”

One of the class assignments was to view the film Desert Hearts. Pompeo submitted a four-page critique of the film Desert Hearts that was harshly critical of the lesbian characters portrayed in the film and of lesbianism in general. Ignoring representations in the syllabus concerning her openness to differing views, Hinkley refused to read beyond the first two pages of Pompeo’s critique, characterizing Pompeo’s views as inflammatory and offensive. Hinkley returned Pompeo’s critique without assigning a grade.

At a subsequent meeting with Pompeo, Hinkley accused her of using “hate speech.” Hinkley told Pompeo that it would be in her best interest to drop the class. Due to Hinkley’s hostility, including her refusal to assign a grade to Pompeo’s critique, she withdrew from the class. Pompeo filed suit in federal district court against UNM, Hinkley, and Hinkley’s supervisor, Susan Dever. She alleged that the defendants had violated her First Amendment free speech rights. The defendants filed a motion to dismiss the suit.

Ruling/Rationale: The district court denied the defendants’ motion to dismiss. It first laid out the two prong test for qualified immunity, i.e., (1) whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right;” and (2) “whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.” The court pointed out that courts have discretion in deciding which of the two prongs they address first.

The court then took up the analysis of the First Amendment claim, applying a three part test: (1) is plaintiff’s speech protected speech; (2) in what type of forum did plaintiff’s speech occur; and (3) do the justifications for restricting speech proffered by defendants satisfy the First Amendment standard applicable to the type of forum in question. It pointed out that the defendants conceded that Pompeo’s speech enjoyed First Amendment protection and the parties agreed the speech occurred in a nonpublic forum.

As a result, the district court focused the third part of test. After noting that the defendants bear the burden of justifying their restrictions on speech, it turned to the defendants’ assertion that “a university can restrict a student’s curricular speech so long as the restrictions are reasonably related to legitimate pedagogical concerns.” Pompeo agreed with that standard save the caveat that any restrictions must be viewpoint neutral.

The court stated that it would be inclined to accept Pompeo’s contention regarding viewpoint discrimination if “this case involved a non-curricular nonpublic forum.” However, because the case involves curricular speech, it found that “in this specific context the established general rule prohibiting viewpoint-based restrictions must yield to the Court of Appeals’ conclusion that “Hazelwood does not require viewpoint neutrality.”

The court concluded  that “[v]iewpoint-based restrictions on a student’s curricular speech are allowed, but only if they are reasonably related to legitimate pedagogical concerns.” Nonetheless, the district court determined, based on the facts as pleaded, that Pompeo had stated a valid claim that her free speech rights were violated when Hinkley sanctioned Pompeo for submitting a critique of the movie that diverged from Hinkley’s point of view.  According to the court:

The Court questions whether a university can have a legitimate pedagogical interest in inviting students to engage in “incendiary” and provocative speech on a topic and then  punishing a student because he or she did just that. Simply because Plaintiff expressed views about homosexuality that some people may deem offensive does not deprive her views of First Amendment protection.

It found Hinkley acted against Pompeo based on a personal disagreement with Pompeo’s ideology rather than out of legitimate pedagogical concerns.

The court also concluded that Pompeo had a valid claim against Dever based on the allegation that Dever “ratified” Hinkley’s censorship of Plaintiff’s views. It determined: “Plaintiff has adequately alleged circumstances demonstrating that Dever (1) possessed responsibility for the continued operation of Hinkley’s unconstitutional policy of censoring Plaintiff’s speech, (2) Dever consciously perpetuated the policy of censorship, thereby causing the deprivation of Plaintiff’s First Amendment rights, and (3) that Dever acted to suppress a viewpoint that she, like Hinkley, found personally offensive, rather than for a legitimate pedagogical reason.

Pompeo v, Board of Regents Univ. of New Mexico, No. 13-0833 (D.N.M. Sept. 29, 2014)

[Editor’s Note: On November 4, 2014, Courtney Such of The College Fix reported on the district court’s ruling. The article points out that the courts’ decisions on this issue are not a foregone conclusion based The College Fix’s review of litigation. It cited a 2008 Third Circuit opinion in DeJohn v, Temple University that issued a broad ruling in favor of classroom speech. The Third Circuit said that Temple University’s sexual harassment policy “provide[d] no shelter for core protected speech” and that “discussion by adult students in a college classroom should not be restricted.”]


Florida court allows parents of students receiving private school scholarships through state’s tuition tax credit program to intervene as defendants in suit challenging the program

Flaglerlive.com reports that Leon County Circuit Court Judge George Reynolds III has granted the request of a group of parents, whose children are the recipients of private school scholarships through the Florida Tax Credit Scholarship program, to intervene as a defendant in a lawsuit challenging the validity of the program under the state constitution. The parents’ group argued that it should be allowed full-party status because the children of those parents would lose access to the scholarship program if the court finds it unconstitutional.

The plaintiffs, a coalition of public school advocates, including the Florida Education Association, which is the state’s largest teachers union, did not object to the parents’ participation in the suit, but opposed the parents being granted full party status. Lynn Hearn, an attorney for the coalition, said, “If they are granted their request to come in as a party, a defendant standing shoulder-to-shoulder with the state, then they could raise completely unrelated claims.” Karen Walker, a lawyer for the parents, countered that not allowing them to be a party to the suit would make them “second-class citizens.” Judge Reynolds ruled in favor of the parents, offering little explanation.

The Tax Credit Scholarship Program, which could raise as much as $357.8 million this year, provides tax credits to companies that donate money to nonprofit entities that pay for children to go to private schools. Without the scholarship program, critics say, those tax dollars could be used to help fund public education. But supporters say the program provides better opportunities for low- or middle-income children trapped in failing public schools.

Source: Flaglerlive.com, 12/7/14, By Brandon Larrabee

[Editor’s Note: In September 2014, Legal Clips summarized an article in the Orlando Sentinel reporting that a coalition of public school advocates led by the Florida Education Association (FEA), which includes the Florida School Boards Association and the Florida PTA, brought suit against the state of Florida alleging that the Tax-Credit Scholarship Program ( TCSP) violates the state’s constitution because it redirects taxpayer money to religious schools and creates a separate system of state funded schools. The program is expected to provide private-school tuition for nearly 70,000 students from low-income families. Approximately 70% of the schools participating in the program are religious schools. ]

State of Washington’s AG files suit against company accused of providing school districts with fraudulent training leading to filing of false medicaid claims

The Enumclaw Courier-Herald reports that the State of Washington Attorney General’s (AG) Medicaid Fraud Control Unit (MFCU) has filed suit in state court against JT Educational Consultants (JTEC). The state  alleges that JTEC provided fraudulent training to dozens of school districts around the state, leading to tens of millions of dollars in false Medicaid claims.

“These scammers lined their pockets with millions of dollars meant to serve the healthcare needs of Washington children and families,” said AG Bob Ferguson. “This fraud will not be tolerated. If you steal from the Medicaid system, my office will hold you accountable.”

This lawsuit targets a group of individuals, including former school administrators and employees, who built a grossly profitable consulting business by marketing a corrupted version of this program. JTEC was the consulting company for the Centralia School District, which settled related allegations for $372,000 in July.

Washington’s Medicaid program provides a critical safety net of healthcare services to low income residents. Through a reimbursement program known as the Medicaid Administrative Claiming program, participating school districts may receive Medicaid reimbursement for administrative costs they incur that directly support the provision of healthcare services to Medicaid eligible students.

According to the suit, instead of assisting school districts in obtaining reimbursement for legitimate costs incurred helping Medicaid eligible students obtain necessary health care services, JTEC gamed the system and received millions of dollars in “consulting” fees by causing the districts to file tens of millions of dollars worth of false claims between 2005 and 2014. MFCU accuses JTEC of misrepresenting the rules of the program in training presentations, written training materials, and other communications with the districts, so that the districts would submit false claims for reimbursement and the defendants could take a percentage of the ill-gotten funds.

The suit also alleges that when the agency responsible for administering Medicaid moved to implement a computer-based system that would have enabled districts to more easily and accurately identify costs truly reimbursable under the administrative claiming program, JTEC strenuously opposed the effort and fought hard to preserve the paper based system that was central to the survival of their unlawful enterprise. The AG’s suit is seeking restitution of the ill-gotten Medicaid funds and substantial civil penalties for the false Medicaid claims.

MFCU investigators estimate that between 1998 and 2011 JTEC netted $12.6 million in consulting fees from school districts. In recent years, this company alone took between 6% and 8% of the total Medicaid Administrative Claiming reimbursement coming into the state.

Neither the owners of JTEC nor the company’s employees, or contractors, have any special Medicaid training. Most of the employees and contractors are retired school district employees.

Source: The Enumclaw Courier-Herald, 12/4/14, By Staff

[Editor’s Note: MFCU’s legal complaint is based on the State of Washington’s Medicaid Fraud False Claims Act and the anti-fraud provisions of the state’s Medicaid Statute. It spells out in detail how JTEC used the school districts to file false Medicaid claims defrauding the state of  millions of dollars of Medicaid funds.]

Maine court orders school district to pay $75,000 in discrimination suit brought by transgender student

The Portland Press Herald reports that Penobscot County Superior Court has ordered Orono school district to pay $75,000 to Gay and Lesbian Advocates and Defenders (GLAD) and attorney Berman Simmons, who represent transgender student Nicole Maines in her discrimination suit. The order, which was mutually agreed upon by the parties, prohibits the district from refusing to allow transgender students access to school restrooms that are consistent with their gender identity.

GLAD  spokeswoman  Carisa Cunningham said, “This was really just a technical conclusion of the case.” The monetary award covers legal expenses, related costs and a financial award. “A significant portion of that amount is going to the Maines family,” Cunningham said, although she declined to say exactly how the $75,000 would be divided.

The legal dispute involved Maines’ use of the communal girls’ bathroom at her school. After initially allowing her to use the bathroom, school administrators reversed course and barred Nicole from using the communal girls’ bathroom after a male student, at his guardian’s instruction,  followed her into the girls’ bathroom on two occasions.

The Penobscot County Superior Court initially supported the school administrators’ decision, but the Maine Supreme Judicial Court overturned that ruling after Maines appealed.

Source: Portland Press Herald, 12/2/14, By Scott Dolan

[Editor’s Note: In February 2014, Legal Clips summarized the decision by the Maine Supreme Judicial Court in the suit captioned Doe v. Regional Sch. Unit 26 holding that a school district violated a transgender student’s rights under the Maine Human Rights Act (MHRA) when it prohibited her from using the girls’ communal restroom at school.] 


U.S. Supreme Court hears arguments in suit over the notice and comment requirement as applied to federal interpretative rules

On Monday, December 1, 2014, the U.S. Supreme Court held oral argument in Perez v. Mortgage Bankers Ass’n, 13-1041, which involves the issue of whether a federal agency must engage in notice-and-comment rulemaking before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation. SCOTUSblog provided analysis of the argument and also background on the case. By way of background, it pointed out that the Mortgage Bankers Association (MBA) maintained in the Supreme Court that the rule in question is a “legislative rule in interpretive clothing.” However, U.S. Deputy Solicitor General Edwin Kneedler reminded the Court that,  “[T]he question of whether this is an interpretive rule … is not before the Court,” and Justice Kennedy agreed.

SCOTUSblog also pointed out that the question presented assumes exactly what the D.C. Circuit below had assumed – that the rule at issue here is an interpretive rule. Turning to the argument, it noted that some members of the Court expressed concern with the deference issues raised by MBA. Justices Elena Kagan and Sonia Sotomayor wondered whether the government was seeking an “end run” around the notice-and-comment process.

Kneedler tried to deflect this line of questioning by relying simply on the formal distinctions between legislative rules – which, he claimed, have the “force and effect of law” and “define duties and obligations” – and interpretive rules – which, as Kneedler put it, are “designed [only] to inform the public of the agency’s view of the statutes and rules.” Justice Antonin Scalia, who has called on the Court to abandon Auer deference, would have none of it: “Nonsense. [W]hether it’s an interpretative rule or a substantive rule, … you want us to give the same deference to both.” Kneedler agreed with Scalia.

According to SCOTUSblog, Justice Stephen Breyer cut off this line of questioning, perhaps signaling the ruling to come. He noted that the deference question was interesting and nuanced. But presumably because the question presented assumed that the rule at issue is interpretive, he noted that “we need not go into those [deference] matters in this case and I surely hope we don’t.” This comment gave Kneedler another opportunity to remind the Court that the case concerned only the validity of the Paralyzed Veterans doctrine, and not the dividing line between interpretive and legislative rules or the deference due those rules when they are challenged in court.

SCOTUSblog reported that MBA’s lawyer, Allyson Ho, faced tough questioning. Resisting the question presented she contended that the revised DOL interpretation amounted to a “substantive change in the law,”  i.e., a legislative rule. Justice Kagan, rejecting that reasoning, said, “Everything that happened in this case happened on the view that this was an interpretative rule and the question is what followed from that classification.”

SCOTUSblog found Ho’s exchange with Justice Scalia very revealing. Justice Scalia asked whether it was “absolutely essential” to MBA’s case that the rule at issue be classified as “substantive.” Ho agreed. Justice Scalia continued: “And if we disagree with that, you acknowledge that Paralyzed Veterans is wrong.” “Yes,” Ho replied. At that point, Justice Kagan jumped in: “Well … I think that you’ve just said Paralyzed Veterans is wrong then.” Ho then doubled down: “The question in this case is whether [the 2010 DOL rule] is, in fact, an interpretive rule” or, as MBA now maintains, a legislative rule. That’s effectively a concession that MBA loses if the Court is unwilling to go beyond the question presented in the government’s petition.

SCOTUSblog’s analysis of the argument concluded that:

The argument reinforces our view that the Court will bury the Paralyzed Veterans doctrine and hold that a revised interpretive rule need not go through notice-and-comment rulemaking. It is likely that one or more members of the Court will voice concern over the deference given to interpretive rules and, perhaps, the difficulty distinguishing between interpretive and legislative rules. But we think the Court will leave those broader and more difficult issues for another day (or two).

Another perspective on where the Court might land is offered by Federal Regulations Advisor :

SCOTUS has the opportunity to limit Auer deference by affirming the D.C. Circuit, warning agencies that their definitive interpretation must be carefully expressed and is not subject to political whims and flipflops are not an exception to the notice and comment requirements of the APA. At the same time, SCOTUS may recognize that the first interpretation may be overtaken by other realities than politics and limit an affirmance to otherwise unexplained political flipflops. Reversal, on the other hand, could leave interpretative rules open to continued manipulation. SCOTUS should not, however, be expected to revise precedent on the larger issues of the substantive / interpretative tests or the role of deference writ large – those are issues for another day.

[Editor’s Note: In October 2014, Legal Clips published an item announcing that The National School Boards Association, along with several other organizations that advocate on behalf of public sector employers, joined the amicus brief filed by the State and Local Legal Center urging the Court to affirm the U.S. Court of Appeals for the District of Columbia Circuit’s holding that significant changes to definitive interpretive rules are subject to notice and comment requirements.] 

U.S. Supreme Court hears argument in case involving whether online posting amounted to a “true threat” for purposes of a federal criminal statute

On Monday, December 1, 2014, the U.S. Supreme Court heard oral argument in Elonis v. United States, 13-983. Commenting on the argument, SCOTUSblog said: “At issue in the case is whether a Pennsylvania man’s conviction for making threats on Facebook should stand when he claims he was just ‘venting’ about his personal problems and did not actually mean to threaten his ex-wife and an FBI agent.” It also noted that it did not appear that either side had a clear path to “victory.” It pointed out that the federal government argued that the test should be an objective one that looks at whether an average person (in legal parlance, a “reasonable person”) would interpret the statement as reflecting a serious intent to harm someone. While Elonis argued that the test should be a subjective one: did he personally intend to threaten anyone?

According to SCOTUSblog, Justice Sonia Sotomayor was puzzled about whether there was actually any difference between the two standards. If you can infer someone’s state of mind from the circumstances “of how and what was said in words,” she asked, isn’t the jury really looking at what a reasonable person would think anyway. Highlighting that Justice Samuel A. Alito is no fan of extending First Amendment protection to offensive or unpopular speech, it said that nothing that occurred during Alito’s questioning of Elonis’ attorney suggested that Elonis’ chances of getting his vote were any better.

SCOTUSblog also believes that Alito may have an ally in Justice Antonin Scalia, who observed that, although the government’s proposed standard may be a fairly easy one for prosecutors to satisfy, that was not a problem because the statements at issue aren’t, as speech goes, very deserving of protection. It found that even Justice Ruth Bader Ginsburg seemed skeptical about how Elonis’ proposed standard would work as a practical matter. Although she asked only three questions during this oral argument, in two of those she pressed Elonis’ attorney to explain how the government “would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”

However, SCOTUSblog did observe that Chief Justice John Roberts proved to be Elonis’ staunchest ally on the bench. The Chief Justice asked the federal government’s attorney several times to clarify what exactly the government would mean by a “reasonable person”:  in the case of stupid teenagers making threats while playing video games online, for example, would a jury consider how a hypothetical “reasonable person” might perceive the threat, or would it consider instead what a “reasonable teenager” might think? When the attorney responded that it would depend on the audience to whom the teenagers were speaking, the Chief Justice expressed frustration with what he regarded as the potential for the statute to be applied inconsistently to the same speech:  “So if the teenager has a lot of friends on his Facebook page . . . then you are going to evaluate it by a different standard than if he only has a few friends that have access to his statements?”

The Chief Justice returned to this issue again later in the oral argument, asking the government’s attorney whether the government’s standard might result in prosecutions for violent rap lyrics, including lyrics by Eminem, that (in what was almost certainly a first at the Court) the Chief Justice quoted at some length.

Finally, SCOTUSblog wrote  that Justice Elena Kagan focused most of her energies at the oral argument on an effort to arrive at some sort of middle ground. She proposed what she described as a “recklessness” standard – someone like Elonis could be convicted as long as he knew that there was a substantial probability that his speech would place his ex-wife in fear, even if he didn’t actually intend to threaten her. Such a standard, she suggested, would create a kind of “buffer zone” that would provide more protection for speech than the government’s proposed rule, but at the same time would presumably avoid the kind of inquiry into the speaker’s subjective intent that Elonis would require.

On the question of the decision in Elonis’ effect on the issue of domestic violence, TechNewsWorld said, “If the Court upholds Elonis’ conviction, it will be an important victory in the effort to curb domestic violence.”

“The reasonable person standard is vital because very few abusers or stalkers admit their goal is to cause their victim fear,” said Cindy Southworth, vice president for development and innovation with the National Network to End Domestic Violence. “In this case, it didn’t matter where he posted his threats,” she told TechNewsWorld. “The goal was to threaten his victim, and he succeeded.”

If the court flips the lower court decision, it could be a serious setback, noted Southworth. “Most stalking statutes use the reasonable person standard, so if the decision is overturned, it could have a devastating impact on police and prosecutors’ willingness to take new cases involving the reasonable person standard.”

[Editor’s Note: In August 2011, Legal Clips summarized a decision by the U.S. Court of Appeals for the Eighth Circuit, in a three-judge panel in D.J.M. v. Hannibal Pub. Sch. Dist. holding 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 v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), 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.”]





Illinois athletic association hit with class action suit over concussions

The Claims Journal reports that a class action suit has been filed in Cook County Circuit Court against the Illinois High School Association (IHSA), alleging that ISHA failed to do enough to protect Daniel Bukal, a former high school football player, from concussions when he played and that it still doesn’t do enough to protect current players. The suit, which is the first of its kind, is being brought on behalf of all former players in Illinois against IHSA, the organization responsible for overseeing high school sports in the state. The article notes that the suit could snowball as suits against other state associations are planned.

Bukal, the lead plaintiff, played quarterback at Notre Dame College Prep in Niles from 1999 to 2003. According to suit, he sustained multiple concussions during his playing career, and over ten year later still suffers frequent migraines and has experienced notable memory loss. The suit also notes that Bukal didn’t play beyond high school.

The suit contends that the lack  of IHSA concussion protocols in place at the time Bukal played put players at risk, and asserts that the current protocols remain deficient. The suit calls on IHSA to tighten its rules and regulations regarding head injuries at the 800 high schools it oversees. It does not seek specific monetary damages. The suit states ” … responsibility – and, ultimately, fault – for the historically poor management of concussions begins with the IHSA.”

Attorney Joseph Siprut, who filed the suit against IHSA, also filed a similar lawsuit against the NCAA in 2011. The NCAA settled the suit this year, agreeing to commit $70 million for a medical monitoring program to test athletes for brain trauma. The deal is still awaiting approval by a federal judge.

The IHSA lawsuit seeks similar medical monitoring of Illinois high school football players, though it doesn’t spell out how such a program would operate. It contends that new regulations should include mandatory baseline testing of all players before each season starts to help determine the severity of any concussion sustained during the season.

The suit only targets IHSA. High school football isn’t overseen by a single national body equivalent to the NCAA, but rather by school boards, state law and 50 separate high school associations. Siprut says he intends to file suits against other state governing bodies.

An IHSA spokesman had no immediate comment on the lawsuit.

Washington was the first state to pass laws addressing sports concussions in children in 2009. The law includes a provision barring concussed players from going back into the same game. All 50 states have now adopted such laws. The new lawsuit alleges that respective governing bodies, like the IHSA, have had patchy, insufficient implementation of various state mandates.

Around 140,000 out of nearly 8 million high school athletes have concussions every year, according to the NFHS.  Most of these are football players. Some estimates put the number of concussions much higher, in part because many go unreported.

Source: Claims Journal, 12/2/14, By Michael Tarm

[Editor’s Note: In January 2014, Legal Clips summarized an article in al.com reporting that the parent of a Mississippi high school football player had filed a concussion class action lawsuit against the NCAA and the National Federation of State High School Associations (NFHS). The suit seeks to require the NCAA and NFHS to provide high schools with current concussion-risk information and standard of care practices. It also asks the court to order both associations to certify that high schools have concussion management plans for preventable risks of head injuries. The suit seeks to represent a class of all current high school football players in the United States as of December 2013.

In August 2011, Legal Clips summarized an article in the Chicago Tribune reporting that Illinois had enacted a law providing student-athletes from elementary to high school with better safeguards against concussion injuries, reports the Associated Press (AP) in the Chicago Tribune. The law requires student-athletes with concussions to obtain medical approval before resuming play. It also requires education for coaches, parents, referees and players about concussion symptoms. The law mandates that local school boards join with IHSA in developing guidelines and educational materials about concussions for coaches, student athletes and parents.]





Sua Sponte: OCR issues guidance on single-sex classes and extracurricular activities

The U.S. Department of Education’s (ED) Office for Civil Rights (OCR) has issued guidance on Title IX and single-sex classes and extracurricular activities. The guidance, which is the form of questions and answers (Q&A), is titled “Questions and Answers on Title IX and Single-Sex Elementary and Secondary Classes and Extracurricular Activities.” It provides 33 questions and answers divided into nine sections. The introduction to the Q&A indicates that although the guidance focuses on single-sex classrooms, some of the legal principles addressed in it will also apply to single-sex schools.

In the introduction, Catherine Lhamon, Assistant Secretary for Civil Rights, says: “In order to ensure that schools subject to Title IX comply with the Department’s requirements if they choose to offer single-sex classes and extracurricular activities, OCR provides the following responses to questions that schools should consider when assessing their compliance with Title IX.”

The Q&A’s first section covers seven questions, providing an overview of Title IX’s application to single-sex classes and extracurricular activities. The first three questions address the types of schools covered by the guidance; legal considerations beyond the Title IX regulations discussed in the guidance that apply to single-sex classes; and whether the guidance addresses single-sex schools.

In its response to question four’s inquiry as to whether schools may offer single-sex classes and extracurricular activities under ED’s Title IX regulations, OCR indicates that they can, but only under the circumstances expressly authorized by Title IX or ED’s implementing regulations. It states that the Department’s Title IX regulations permit offering single-sex classes when there are contact sports in physical education classes; when classes or portions of classes in elementary or secondary schools deal primarily with human sexuality; and in nonvocational classes and extracurricular activities within an elementary or secondary school if certain criteria are met.

Under question five, the OCR advises that this particular guidance only addresses nonvocational classes and extracurricular activities in coeducational, nonvocational elementary or secondary schools receiving federal funding. According to the guidance, ” these include any single-sex curricular activity ( such as a class or field trip) and any single-sex extracurricular activity ( such as before-school or after-school activity, lunch or recess).

As to question seven’s inquiry of the criteria required for offering single-sex classes under ED’s Title IX regulations, the Q&A lays out a two-part justification test requiring school school districts to show that:

• each single-sex class is based on the school’s “important objective” either to improve its students’ educational achievement through its overall
established policies to provide diverse educational opportunities ( the diversity objective), or to meet the particular, identified educational needs of its students (the needs objective); and
• the single-sex nature of the class has to be “substantially related” to achieving that important objective.

In addition to establishing justification for offering a single-sex class, a school district must also do the following in order to comply with the Department’s Title IX regulations:
• implement its objective in an evenhanded manner;
• ensure that student enrollment in the single-sex class is completely voluntary;
• provide a substantially equal coeducational class in the same subject; and  conduct periodic evaluations to determine whether the class complies with Title IX, and if not, modify or discontinue the class to ensure compliance with Title IX.

The next five sections discuss each of these elements in detail. Section seven discusses whether teachers may be assigned to single-sex classes on the basis of gender. Section eight explores other federal protections provided to students in single-sex classes. The final section is devoted to additional topics, i.e., “[w]hich set of regulations governs a school within a school” and how to contact OCR for additional information or to file a complaint.

[  Editor’s Note: In September 2014, Legal Clips summarized an article in The Courthouse News Service reporting that the ACLU of Texas (ACLU-TX) had filed a civil rights complaint with OCR asking the federal agency to investigate the Austin Independent School District’s (AISD) plan to revamp two struggling middle schools and assign boys and girls to separate campuses where they will receive gender-specific teaching methods. More than 94% of the students destined for gender divided classrooms are black and Latino, prompting the ACLU-TX  to ask for an investigation into potential sex and race discrimination.

In April 2013 Legal Clips summarized an article in the Green Bay Press Gazette , which reported that the American Civil Liberties Union (ACLU) had filed complaints with the U.S. Department of Education’s (ED) Office for Civil Rights, asking it to investigate whether Beloit School District and Barron School District had violated Title IX’s provisions banning sex discrimination in education by maintaining single-sex classes. ACLU officials alleged that Riverview Middle School in Barron separated its fifth-grade math and language arts classes by sex in 2011. The complaints stated that neither school district had offered adequate justification for separating boys and girls, relying instead on discredited scientific theories about how girls and boys learn differently.]



Louisiana court denies teachers union’s request to preliminarily enjoin the state from funding charter schools

New Orleans City Business reports that a Louisiana district court rejected a motion by the Louisiana Association of Educators (LAE) seeking a preliminary injunction barring the state from funding 33 charter schools that the Louisiana Board of Education (LBOE) authorized. The court concluded that LAE failed to show it would be irreparably harmed because money from the public school financing formula was going to the charter schools.

LAE’s suit claims it is unconstitutional to use $60 million from the formula to pay for charter schools operated outside of parish and city school systems. Charter schools are public schools with broad autonomy from state and local education officials. Charter school proponents argue that charters offer more specialized educational opportunities for students.

Public school officials, on the other hand, contend that charter schools take needed money away from traditional schools and worsen conditions for the students who remain in traditional public schools. In addition to the charter schools approved by the LBOE, the suit also targets charter schools that could be authorized by local education nonprofits, as allowed under a 2012 law.

The Louisiana Association of Public Charter Schools (LAPCS) applauded the ruling as “a significant, but ultimately small victory.” “We have protected 33 charters and their funding for now, but the attack on the 13,000 Louisiana children who attend those schools and their right to attend the public school of their choice is far from over,” said LAPCS director Caroline Roemer Shirley.

Source: New Orleans City Business, 11/17/14, Associated Press

[Editor’s Note: In July 2013, Legal Clips summarized an article in  The Times-Picayune reporting that LAE and several local teachers’ associations had filed a class-action suit charging that the state owes local school boards $199 million as a result of the Louisiana Supreme Court decision striking down a portion of the state’s private school voucher law. The Louisiana School Boards Association (LSBA) is also considering filing suit for about $65 million. ]




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