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Massachusetts district backs off of disciplining student for profane tweet to school’s twitter

After North Attleboro High School (NAHS) sent out a message via the school’s official twitter account notifying students that school was cancelled due to snow that ended with “See you in June!,” the Boston Daily reports, senior Nick Barbieri responded with a profane tweet saying “[expletive] off.”  Barbieri’s F-word laced tweet earned him a call from school officials demanding he delete the tweet.

Barbieri obliged NAHS, but when he returned to school he was informed that he would be facing a possible suspension, or more than six hours of detention.  He was pulled out of class on three separate occasions to discuss the Tweet and his punishment.  School officials also demanded that he delete additional tweets he sent out on his twitter account discussing the ongoing disciplinary action and the school’s response.

Barbieri contacted the American Civil Liberties Union (ACLU) via twitter, saying, “My public school tried to suspend me for a Tweet containing profanity made on the weekend.  Help me save the [First] Amendment.”  The ACLU wrote to the school asking that they delay the detentions handed down to Barbieri until they figured out the legal issues outside of the classroom.  The ACLU’s attorney, Sarah Wunsch, argued that the administration had no authority, consistent with the First Amendment, to punish Barbieri or any other student for their speech outside of the school, even if it’s about the school.  They also demanded the school apologize to the student.

Shortly after receiving the ACLU’s letter, NAHS officials reversed their decision to discipline Barbieri, wiping away the detentions.  Commenting on the outcome, Barbieri said, “Social media is a new thing, and it’s important teachers and schools have these conversations about what civil liberties and students’ rights are.  As more and more schools decide to join Twitter, it’s important they know that there are different standards and rules they will have to follow when they step into that world.”

Barbieri added,  “I can understand how they would be offended by my choice of words,” and said that he had initially apologized for the curse word.

Source: Boston Daily, 2/13/14, By Steve Annear

[Editor's Note: The ACLU's letter to NAHS cited both federal and state law in defense of the student's free speech rights. The letter asserted:

Schools officials simply do not have the authority. consistent with the First Amendment, to punish students for their speech outside of school. even if it relates to the school. Without evidence of a substantial disruption of school, not present here, the administration may not lawfully discipline a student because it does not approve of his speech.

In October 2013, Legal Clips summarized an article in the Minneapolis Star Tribune reporting that Tyson Leon, who attends Shakopee High School (SHS), had filed suit in federal court against the school district and the Minnesota State High School League alleging that his suspension from sports over a tweet is endangering his chances of landing a college scholarship for wrestling. The suit asserts that the tweet was not a threat and that the suspension violates his constitutional rights.]   

Civil rights group files federal complaint charging North Carolina districts are barring immigrant children from enrolling in school

The Southern Poverty Law Center (SPLC) has announced that it has filed a complaint with the U.S. Department of Justice (DOJ) asking the department to conduct an investigation into two school districts in North Carolina.  The SPLC claims the districts discriminated against an immigrant child by denying, delaying, or discouraging enrollment.  According to SPLC, the incident appears to be symptomatic of a larger problem in school districts across the state.

The complaint describes how “unaccompanied” immigrant children – who arrive in the United States without a parent or legal guardian and are placed in the care of a sponsor, such as a family member – were turned away from the schoolhouse door because of their limited English proficiency, age, or national origin.

The complaint contends that these children were subjected to unlawful discrimination in violation of Title IV and Title VI of the Civil Rights Act of 1964, which bar discrimination on the basis of national origin in federally funded public schools.  The complaint also relies on the U.S. Supreme Court decision in Plyler v. Doe, which held that it is unconstitutional to deny a child in the United States a public education, regardless of their immigration status.

The complaint urges DOJ to require the districts to adopt a nondiscrimination policy and to provide staff training on the law.

Source: Southern Poverty Law Center, 2/18/14, By Staff

[Editor's Note: SPLC's complaint states in part: [C]hildren who have come to the United States from another country without a parent or legal guardian to care for them  …  are being turned away at the schoolhouse door because of their limited English proficiency, their age, and their national origin.  These practices violate the nondiscrimination provisions of Title IV, Title VI and the clear holding of Plyler v. Doe.

In November 2011, Legal Clips summarized a CNN article reporting that DOJ had issued a letter to Alabama school districts to make sure they are abiding by federal law, under which a child may not be denied equal access to schools based on his or her immigration status.   In the letter, DOJ’s Civil Rights Division requested each school district to describe its enrollment practices regarding immigrant students and to provide data on student withdrawals and absences.  

In February 2013, Legal Clips summarized an article in The Palm Beach Post reporting that DOJ finalized a settlement with the Palm Beach County School District (PBCSD) over discipline and enrollment practices.  The agreement addresses two complaints alleging discrimination in how PBCSD disciplines students who struggle to speak English, and how it handles registration and enrollment for undocumented immigrants.]

Pennsylvania districts grapple with loss of federal funding for special education services

According to The Times Leader, school districts throughout Pennsylvania are experiencing drastic reductions in the amount of federal money they receive for special education funding.  It’s a case of a federal money being cut while the federal mandate the money helps fund remains.

In a recent webinar hosted by the Pennsylvania School Boards Association, state Acting Secretary of Education Carolyn Dumaresq blamed two federal changes in how Medicaid money can be used in schools, calling it “a perfect storm.”  The changes are choking off money from Medical Assistance at two points, hitting districts with reductions that have run close to 90 percent in some cases.

Medical Assistance, commonly referred to as ACCESS in Pennsylvania, has long been legally offsetting medical-related special-education costs for low-income students. The money pays for things such as occupational and physical therapy, or for aides needed to help a student with disabilities.  Districts have also sought and received reimbursements for “indirect services,” such as drawing up a student’s individual education plan (IEP).

Anthony Grieco, executive director of the Luzerne Intermediate Unit, an agency that provides special-education services to most local districts in Pennsylvania, said two things happened in rapid succession: A federal audit determined the money cannot be used for indirect services, and a new mandate required proof that all other insurance — “third-party liability” — was exhausted before the federal money could be used.  The money for indirect services is almost certainly gone for good, Grieco said, but losses for third-party liability may be reversed.

Cutting the special-education services isn’t really an option.  Devising and following an IEP is mandated under the federal Individuals with Disabilities in Education Act, and reducing services could lead to lawsuits from parents and sanctions from the federal government.  And if the special-education costs can’t be cut and the federal money isn’t restored, it could mean less money for other district costs.

During the webinar, Dumaresq voiced cautious optimism that at least some of the funding will be restored.  “It’s been awful,” she said.  “I know our schools are owed money and we’re working to get that money to flow out.  It’s not for a lack of effort by the Department of Education

Source: The Times Leader, 2/23/14, By Mark Guydish

[Editor's Note: In December 2013, Legal Clips summarized an article in mlive reporting that local Michigan superintendents are opposing U.S. Department of Education proposed regulations that would prohibit school districts that receive federal special education funds from reducing the amount of local or state funding below the amount appropriated the previous year.  The purpose of the rule is to prevent districts from using federal funds to take on a larger share of special education costs by shifting local special education dollars to other uses.]

Federal appeals court upholds Alabama law prohibiting public employers from making payroll deductions for political activity

Alabama Educ. Ass’n v. State Superintendent of Educ., No. 11-11266 (11th Cir. Feb. 5, 2014)

Abstract: A U.S. Court of Appeals for the Eleventh Circuit three-judge panel unanimously upheld Alabama’s statute prohibiting public employees from “arrang[ing] by salary deduction or otherwise” for payments to (1) political action committees or (2) organizations that use any portion of the dues for ‘political activity.’”  The Alabama Education Association had challenged the statute as being unconstitutionally overbroad and vague.  The panel, based on responses provided by the Alabama Supreme Court to two questions it had certified to that court, concluded that the Alabama law fell squarely within the U.S. Supreme Court’s decision in Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009), holding that “[N]othing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities” provided the deduction is properly conceived.

Facts/Issues: Alabama enacted legislation, codified at Alabama Code §17-17-5, that prohibits public employees from “arrang[ing] by salary deduction or otherwise” for payments to (1) political action committees or (2) organizations that use any portion of the dues for “political activity.’”  The term “political activity” was defined as:

a. Making contributions to or contracting with any entity which
engages in any form of political communication, including
communications which mention the name of a political candidate

b. Engaging in or paying for public opinion polling.

c. Engaging in or paying for any form of political communication, including communications which mention the name of a political candidate.

d. Engaging in or paying for any type of political advertising in any medium.

e. Phone calling for any political purpose.

f. Distributing political literature of any type.

g. Providing any type of in-kind help or support to or for a political candidate

Prior to the law taking effect, the Alabama Education Association (AEA) and its political action committee, A-Vote, filed suit in federal court against the State of Alabama.  AEA argued that the statute was overbroad because of the “or otherwise” provision, and that the term “political activity” was vague.  The district court agreed with AEA and granted AEA’s motion for a preliminary injunction, barring the state from enforcing the statute.  The district court concluded that: (1) the “or otherwise” language suffered from a constitutional overbreadth problem and risked prohibiting protected First Amendment activity; and (2) the term “political activity” was unconstitutionally vague–those subject to the statute’s criminal penalties could not determine whether their actions constituted “political activity.”

The state appealed the injunction to the Eleventh Circuit.  The appeals panel certified two questions regarding the statute to the Alabama Supreme Court:

 (1) Is the “or otherwise” language in the statute limited to the use of state mechanisms to support political organizations, or does it cover all contributions by state employees to political organizations, regardless of the source?

(2) Does the term “political activity” refer only to electioneering activities?

The state supreme court issued its opinion in State Superintendent of Education v. Alabama Education Association, __ So. 3d ____, No. 1110413, 2013 WL 5763283 (Ala. Oct. 25, 2013), appended to the panel’s decision.  The Alabama Supreme Court ruled that the “or otherwise” phrase applies only to government facilitated contributions to political organizations, and that the term “political activities” applies to more than electioneering activities.

Ruling/Rationale:  The Eleventh Circuit panel reversed the lower court ruling. The panel concluded that the Alabama law fell squarely within the U.S. Supreme Court holding in Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009): “[N]othing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities.”

Interpreting the “or otherwise” language, the Alabama Supreme Court ruled that the language prohibits only the use of state mechanisms to support politically active organizations, not private forms of contributions.  Therefore, the panel concluded, “the Act only declines to promote speech, rather than abridging it.” Finding that the statute did not implicate a constitutionally protected interest, i.e., the First Amendment, the panel ruled that the district court committed error in not applying the rational basis test. 

The Alabama Supreme Court had, however, concluded that the term “political activities” included more than electioneering activities, giving strength to a vagueness challenge.  The AEA had brought a facial challenge, though, and therefore was required to “demonstrate that the law is impermissibly vague in all of its applications,” quoting Village of Hoffman Estates, 455 U.S. 489, 497, 102 S. Ct. 1186, 1193 (1982).  Although the Alabama Supreme Court ruled that the definition of “political activities” covered more than electioneering activities, it ruled that it does include electioneering activities.  “Some of AEA and A-VOTE’s conduct indisputably falls within the Act’s definition of political activity, and therefore the challengers cannot bring a facial challenge arguing the term is vague based on other applications.”  Citing Supreme Court guidance, the panel noted that “[a] series of as applied challenges is a more appropriate forum for challenging other, potentially more vague applications of the Act.”

Alabama Educ. Ass’n v. State Superintendent of Educ., No. 11-11266 (11th Cir. Feb. 5, 2014)

[Editor's Note: In March 2011, Legal Clips summarized an article in Courthouse News Service reporting on the filing of AEA's lawsuit.

In February 2009, Legal Clips summarized the U.S. Supreme Court's decision in Ysursa, holding that Idaho’s ban on political payroll deductions does not infringe unions’ First Amendment rights. The Court concluded that state governments are not required to "affirmatively assist political speech by allowing public employers to administer payroll deductions for political activities.”] 

Federal district court in Delaware issues preliminary injunction keeping open single-sex charter school identified by state as “failing”

Reach Acad. For Boys and Girls, Inc. v. Delaware Dep’t of Educ., No. 13-1974 (D. Del. Jan. 3, 2014)

Abstract: A federal district court in Delaware issued a preliminary injunction which keeps open a single-sex charter school (for girls) for one year. The Delaware Department of Education had rated the school as “failing” and decided not to renew the school’s charter.  The court also ruled that the charter school did not have standing to sue the state, but the individual plaintiffs (students and their parents) did have standing to pursue Title IX and Fourteenth Amendment equal protection claims.

Facts/Issues: Reach Academy for Girls (RAG) is an all girls charter school operating in Delaware.  The Delaware Department of Education (DDE) identified RAG as a “failing” school, based in part on its standardized test scores.  It decided not to renew RAG’s charter beyond the 2012-13 school year.  Delaware has one all-boys public charter school (The Prestige School), whose charter was renewed for five years in June 2012.  Under Delaware statute, DDE is precluded from considering any new application for a single-sex charter school because of a sunset provision that states: “The same-gender charter school provisions shall sunset, for any new charter applications, on June 30, 2013, unless the General Assembly has otherwise acted to extend such date prior to its expiration.”

DDE’s decision means girls cannot attend a single-sex school in Delaware beyond the 2012-13 school year, because no new single-sex schools may be formed.  The state will continue, however, to operate the Prestige charter school for boys.  If DDE’s decision stands, only males in Delaware will have the option of a single-sex education.

RAG and a group of students and their parents filed suit against DDE to prevent DDE from terminating its charter.  The plaintiffs alleged that DDE’s action violated their Fourteenth Amendment equal protection and due process rights.  They also claimed that DDE’s decision not to renew the charter violated Title IX.  The plaintiffs filed a motion for a preliminary injunction to keep RAG open.  DDE moved to dismiss all claims as to both RAG and the individual plaintiffs.

Ruling/Rationale: The district court determined that RAG lacked standing, because under Delaware law schools may not sue the state and for purposes of this law charter schools are indistinguishable from traditional public schools.  The court decided that the individual plaintiffs lacked standing to bring their due process claims.  They did, however, have standing to mainatin their equal protection and Title IX claims.  Based on those claims, the court granted the individual plaintiffs’ motion for a preliminary injunction, and ordered that RAG remain open an additional year.

The court concluded that the individual plaintiffs demonstrated a likelihood of success on the merits of their discrimination claims.

With respect to Count I, alleging a violation of Equal Protection, the Individual Plaintiffs are likely to show that the sunset provision of Section 506, in combination with the non-renewal of Reach’s charter, will imminently leave Delaware’s girls with no option for a single-sex K-8 public charter school education while, at the same time, Delaware’s boys have that very option due to the charter the State has granted to Prestige.  The Individual Plaintiffs will likely prove that single-sex education at the K-8 level provides a unique and valuable learning environment for at least some children. Indefinitely depriving Delaware’s girls of access to this unique and valuable educational opportunity, while at the same time providing it to Delaware’s boys for at least several more years, is likely to be found to be a violation of the Individual Plaintiffs’ right to Equal Protection.

The court also found it likely that the plaintiffs would be able to show a violation of their rights to equal educational opportunities protected by Title IX, based on the same reasoning.

The court also concluded that the individual plaintiffs will be irreparably harmed if a preliminary injunction is not issued, because they will no longer be able to attend RAG.  The state had argued that the individual plaintiffs will incur irreparable harm by attending RAG, because it is a failing school.  The court discounted that claim, however, because enrollment at RAG is voluntary.

The state also cited harm to its interests by the “‘undermin[ing]‘” of their ability to hold charter schools accountable and to enforce rigorous academic standards.” The court agreed that this was substantial harm, but reduced its weight because the state can impose reasonable conditions on RAG’s one-year charter renewal and can initiate revocation proceedings against RAG if needed.

Reach Acad. For Boys and Girls, Inc. v. Delaware Dep’t of Educ., No. 13-1974 (D. Del. Jan. 3, 2014)

[Editor's Note: The November 2013 issue of COSA's Inquiry and Analysis featured an article on this subject entitled Singled Out: Can Your Single-Sex Program withstand Title IX and Constitutional Scrutiny

In August 2011, Legal Clips summarized an article in the Westport News reporting that the board of Tarek ibn Ziyad Academy, a charter school that has fought claims that it improperly promoted religion, voted to end its legal battle to overturn the decision by the Minnesota Department Education (MDE) to close the school.] 

School funding suits focus on new state accountability standards

USA Today reports that litigation is currently pending against 11 states over inadequate or inequitable school funding.  School finance suits are not new, but the plaintiffs’ arguments are changing.  Higher state standards lie at the heart of the arguments in many of the recent cases.

“The states have promulgated content standards, assessment systems—they’ve promulgated lots of accountability,” said David Sciarra, executive director of the Education Law Center, which advocates on behalf of students in New Jersey and is viewed nationally as a leader in school funding lawsuits.  “But what the states haven’t done is determine the cost of delivering standards-based education to all kids.”

Teachers and schools are increasingly being held accountable for student achievement.  As a result, Sciarra and others argue it costs more to educate children to the higher standards, and that states need to figure out how much more.  The extra money might be used, for example, to shrink class sizes, provide preschool for low-income students, or to beef up instruction for students with special needs, such as those learning English or those with disabilities.

Some of the lawsuits specifically argue that states are not spending enough to educate students with special needs, who are being asked to meet the tougher standards along with their classmates.

Eric Hanushek, however, an education expert at Stanford’s Hoover Institution who has conducted influential research on evaluating teachers, said there is “considerable evidence that suggests that there’s no clear relationship between what’s spent on schools and student performance.  It’s very difficult for the courts to address issues of how money is spent.  They can’t enforce it, they don’t have the capacity to make these kinds of policy decisions very well, so the courts generally stick quite narrowly to how much money is spent,” he said.  Hanushek said school spending is largely driven by class size and teacher salaries, and he asserts that neither is closely related to student achievement.  Instead, he argues that school districts should focus on improving teacher quality.

One common thread in the current spate of education funding lawsuits is the argument that states have failed to comply with previous court rulings.  In some cases, states have argued that they just didn’t have the money, particularly during the recession and its aftermath.

California recently approved an historic school funding overhaul that would give schools a base amount of funding per pupil with extra funding for disadvantaged students and for schools with large numbers of students who are low-income, English-language learners, or are in foster care.  But it will remain unclear for some time how the new funding formula will affect two school funding lawsuits, which have been consolidated at the California Court of Appeals and are waiting for oral arguments to be scheduled.

Source: USA Today, 2/18/14 Adrienne Lu

[Editor's Note: As mentioned in the article, one of the current aspects of litigation is a state's failure to fulfill previous court orders.  In August, 2013, Legal Clips reported that NSBA and the North Carolina School Boards Association had filed in amicus brief urging the North Carolina Supreme Court to require the state to fulfill its constitutional duty to provide at-risk children with access to prekindergarten programs.

A search for "school funding" in Legal Clips will return numerous news items concerning school funding lawsuits and court decisions across the Nation.]

COSA sponsoring webinar on responding to claims of student abuse

Mandated Reporting of Child Abuse and Investigation of Employee Conduct Webinar

This webinar will address several areas associated with a school district’s investigation of child abuse reporting including: state mandated reporting requirements, a school district’s duty to investigate and stop abuse/prevent it from recurring, the development of investigation plans, recognition of union rights, and maintenance of student confidentiality.

Date: February 24, 2014

Time: 1:00 p.m. – 2:15 p.m. (EST)

  • Host: Leza Conliffe, NSBA Senior Staff Attorney
  • Presenters: Diane Marshall-Freeman, Partner, Fagen Friedman & Fulfrost, Sacramento, California, and Christopher D. Keeler, Fagen Friedman & Fulfrost, San Diego, California

Register now for one low fee per site!  https://secure.nsba.org/register/webinar/webinarDetails.cfm

Federal appeals court upholds expulsion of Michigan student against myriad procedural due process claims

C.Y. v. Lakeview Pub. Sch., No. 13-1791 (6th Cir. Feb. 11, 2014)

Abstract: A U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY) three-judge panel rules that a student who was suspended and later expelled for having brought a knife to school and threatening another student received adequate procedural due process before disciplinary measures were imposed.  The panel upheld the school district’s actions against numerous due process allegations, applying Goss v. Lopez, 419 U.S. 565 (1975) and Newsome v. Batavia Local Sch. Dist., 842 F.2d 920 (6th Cir. 1988).

Facts/Issues: C.Y., a freshman at Lakeview High School (LHS), tweeted that she was going to stab A.B., a fellow student.  Later that day, A.B. and a school counselor reported to Assistant Vice-Principal Heather Huber that C.Y. had brought a knife to school and was threatening to stab A.B.  When Huber attempted to locate C.Y., she learned that C.Y. had left school.

Huber conducted an investigation.  A.B. showed Huber a tweet she received from C.Y. at 6:30 a.m. that said “stab stab stab.  Going to stab stab stab you today to see your insides, ya ya ya,” and told Huber that C.Y. had been bullying her.  A.B. reported that a few days prior, C.Y. had posted on Facebook a picture of a T-shirt that she made, with a photograph on it of A.B.’s mother in a coma after a suicide attempt and a caption stating “DEAD BITCH.”  Huber  also obtained written statements from two other students who said they heard C.Y. threaten to stab A.B.  J.Y., a friend of C.Y.’s, confirmed that at 10:00 a.m. that morning, C.Y. had told J.Y. that she planned to stab A.B., and had shown J.Y. a steak knife tucked into the back of her binder.  J.Y. prepared a witness statement to that effect. While J.Y. was writing the statement, C.Y. sent her texts, which J.Y. showed to Huber:

12:46: Who told AB about the knife

12:53: Someone did. Hmmm, they’re gonna think she’s a nut case when she tells me. Lol she doesn’t have proof I brang [sic] a knife

1:09: I wasn’t gonna actually stab her

Huber then phoned C.Y.’s mother, Antone.  Antone testified that Huber suspended C.Y. during the phone conversation, but Huber testified that she called to schedule a conference and did not suspended C.Y. at that time.  A conference was held the next day, involving Huber, C.Y., Antone, and C.Y.’s brother Christopher.  At the meeting, Huber informed C.Y. and her family of the charges, the evidence against C.Y., and gave C.Y. an opportunity to provide a written statement giving her side of the story.  In her statement, C.Y. admitted to the tweet, and admitted that she threatened A.B. during conversations with two students, but she denied bringing a knife to school

Huber said that after the meeting she decided that C.Y. should be suspended. The school sent C.Y.’s mother a letter informing her of the decision and advising that C.Y. might be expelled as a result of further proceedings mandated by federal and state law regarding the possession of a knife with a blade over three inches.  A pre-expulsion hearing was conducted by Lakeview Public Schools (LPS) Superintendent Karl Paulson, at which C.Y., her mother, brother, and Huber were present.  According to Huber and Paulson, C.Y. was shown all of the evidence against her, including the witness statements, and was allowed to question Huber about it.  Antone denies that C.Y. was ever allowed to review the witness statements and report.  At the conclusion of the hearing, Paulson recommended expelling C.Y. for possession of a knife at school and threatening to use it against another student.

The school board held an expulsion hearing, closed at Antone’s request. The board refused to allow C.Y.’s brother to attend or read his statement.  However, the board allowed C.Y.’s father to read the statement.  At the conclusion of the hearing, the board voted to expel C.Y.

C.Y. filed suit in federal district court against LPS, alleging that she was denied her constitutional rights to procedural due process at her suspension and expulsion hearings.  The district granted LPS summary judgment.

Ruling/Rationale: The Sixth Circuit panel affirmed the lower court’s decision. C.Y. raised numerous allegations that her procedural due process rights were violated, all rejected by the panel.

C.Y. argued that Huber suspended her over the phone, prior to providing any due process.  The panel held that, even if the appellant’s version of the phone conversation was accurate, the school had the authority under Goss v. Lopez, 419 U.S. 565 (1975) to suspend C.Y. on an emergency basis, given the information possessed by the school. “Under the circumstances, it would have been reasonable for Huber to direct C.Y. not to return to school until Huber had the opportunity to meet with her.  See Goss, 419 U.S. at 582–83 (‘Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school.  In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable.’).”

The panel also concluded that the school’s conference met the minimum due process requirements established in Goss.  The panel stated: “[M]inimum due-process requirements are met if, during ‘an informal give-and-take between student and disciplinarian,’ the student is ‘told what he is accused of doing and what the basis of the accusation is and then given an opportunity to respond.’” (quoting Goss).

C.Y. also alleged that her suspsension was longer than 10 days, because it began on the day of the phone conversation, and thus the minimal due process procedures articulated in Goss were insufficient.  The panel acknowledged that “Goss did not address the due-process requirements for suspensions longer than ten days, noting only that ‘[l]onger suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures.’” (quoting Goss).  The panel determined that even if the school’s suspension action exceeded ten days, it did not violate C.Y.’s due process rights.  Assuming C.Y.’s version of events, she was out of school for only ten days plus the one or two class periods she missed on the day of the phone conversation.  “Under these circumstances, the additional deprivation posed by the two extra class periods of suspension is not significant enough to require a deviation from the standards set forth in Goss.

C.Y. also argued that the school district’s expulsion proceedings violated her due process rights.

C.Y. contended that she was deprived of due process because neither she nor her mother were allowed to read the witness statements or Huber’s report, and therefore she was not advised of the evidence against her.  The panel emphasized that “undisputed evidence shows that the substance of the witness statements and the report were conveyed to C.Y. and her mother repeatedly, and no essential facts were withheld.”  The student statements reported that C.Y. brought a knife to school, showed the knife to a student, and stated that she intended to stab A.B.  The panel noted that C.Y. was informed multiple times that students had reported this information.  “Accordingly, whether or not C.Y. was provided copies of the statements and report, the record leaves no doubt that she received an explanation of their contents adequate to prepare her defense, and thus her due process rights were not infringed.  See Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 927 (6th Cir. 1988)(student has a right to ‘an explanation of the evidence the authorities have’) (emphasis added) (quoting Goss, 419 U.S. at 581).”

C.Y. also alleged that she was denied the right to present witnesses on her behalf because the school board did not permit her brother (Christopher) to attend and speak at the expulsion hearing.  Her brother’s statement was read to the board by her father.   The panel addressed this question by balancing three factors: (1) C.Y.’s important interest in her education; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of the requested procedural safeguard; and (3) the government’s interest, including the fiscal and administrative burden that the additional procedural safeguard would entail.  The panel determined that “nothing in the record [] suggest[s] that preventing Christopher from making comments in addition to his written statement increased the risk of an erroneous deprivation of C.Y.’s rights.” It concluded: “On these facts, denying C.Y. the additional safeguard of allowing Christopher to be present at her expulsion hearing and make unspecified comments in addition to his written statement did not violate procedural due process.”

C.Y. also alleged that she was denied the right to an impartial tribunal because the school administrators had communicated with the board and convinced the board of her guilt prior to the hearing.  Citing Newsome, the panel stated that “absent some showing of bias, it does not violate due process for school administrators to communicate ex parte with the Board, or even to participate in the Board’s deliberations.”  It pointed out that C.Y. made no charge of bias, only that school administrators had convinced the board of C.Y.’s guilt in advance of the hearing.  “Due process is not implicated in those circumstances.”

C.Y. further alleged that she was not told that she had the right to an attorney. The panel rejected this argument as well, stating “Students do not necessarily have a due-process right to an attorney at expulsion hearings, let alone a right to be notified that they are entitled to an attorney.”

C.Y. v. Lakeview Pub. Sch., No. 13-1791 (6th Cir. Feb. 11, 2014)

[Editor's Note: A student's disciplinary defense usually consists of a parade of procedural due process arguments.  For those circumstances, this is a good decision for school attorneys to clip and keep handy. 

In September 2011, Legal Clips summarized the U.S. Court of Appeals for the Sixth Circuit (MI, OH, KY, TN) decision in Heyne v. Metropolitan Nashville Pub. Sch. holding that a suspended high school student's lawsuit stated valid procedural due process claims. The panel concluded that the student had made legally sufficient allegations that the decision-makers involved in his hearing were biased on the basis of race.] 

Mississippi private school voucher bill for disabled students advances, different versions passed in both chambers

Both chambers of the Mississippi legislature have passed versions of legislation that would provide state funds to parents who withdraw their special needs child from public school to enroll that child in a private school, says an Associated Press (AP) report in the Sun Herald.  The Senate passed Senate Bill 2325 on a 26-23 vote, while the House passed House Bill 765 on a 61-45 vote.  The chambers will exchange bills for more work.

The legislation would provide vouchers equal to the amount designated per student under the Mississippi Adequate Education Program plus “categorical funds” for special education.  Opponents of the legislation contend that a student would get a full per-student share of the Mississippi Adequate Education Program at a time when lawmakers are not fully funding that formula for public school students.  Opponents also fear that vouchers could weaken public schools and be an opening wedge for a statewide voucher program.  Sen. David Blount, D-Jackson, also questioned whether the bill was allowable under the state Constitution’s ban on religious schools.

Source: Sun Herald, 2/13/14, By Jeff Amy (AP)

[Editor's Note: Earlier in February 2014, Legal Clips summarized an AP article in the Hattiesburg American reporting on the parallel voucher bills in the Mississippi House and Senate.  Both would provide more than $6,000 a year in state funding to the parents of any special education student who withdraws their child from the local public school system.] 

Kansas legislature considers drug screening school employees

The Lawrence Journal World reports on proposed legislation in the Kansas legislature that would require school districts to test employees for drugs if they are suspected of illegal drug use, and concerns raised by the state’s teachers’ association and the Kansas Association of School Boards.  State Sen. Greg Smith insists the legislation (Senate Bill 335) will “provide a safe learning environment for our students,” pointing out that according to a national report 10% of students are victims of sexual abuse by school personnel sometime during their school career.  Under the bill, all drug tests would be sent to the State Board of Education where a hiring school district would be able to access the test results.

However, Marjorie Blaufuss, an attorney with the Kansas National Education Association, and Mark Tallman, associate executive director of the Kansas Association of School Boards, raised numerous concerns about the proposed drug screening of school employees.  Blaufuss has concerns about whether a drug test would let a potential employer know about a teacher’s use of a legally prescribed drug for a physical or mental disability.  Divulging that information is illegal under the Americans with Disabilities Act, she said.  Tallman raised several questions, including whether the bill required drug testing or allowed school districts to put in place drug screening policies.  Blaufuss and Tallman said their organizations were taking a neutral position on the bill at this point.

The proposed bill would also require teachers to submit fingerprints for background checks.  The two groups support the fingerprint provision, noting that new applicants for a teaching license and those renewing a lapsed license already submit their fingerprints.

The senate committee took no action but will continue to study the issue.

Source:  Lawrence Journal World, 2/10/14, By Scott Rothschild

[Editor's Note: Disputes over employee drug testing have often involved state laws or school district policies that impose random drug testing for school employees.  In July 2013, Legal Clips summarized an article in The Washington Post reporting that the Washington D.C. Office of the Inspector General (IG) had found that nine years after a D.C. law mandated that public employees who work with children or hold safety-sensitive positions submit to random drug testing, D.C. Public Schools (DCPS) had yet to implement a drug testing policy. The IG’s report condemned the lack of a testing program, saying DCPS had not tested any of the more than 8,200 employees subject to the law.]

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