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ACLU threatens to sue California district amid allegations that school officials censored article in student publication about dismissal of popular teacher

According to the Pasadena Star-News, the American Civil Liberties Union of Southern California (ACLU-SoCal) is threatening legal action against the Alhambra Unified School District (AUSD) following student journalists’ claims that San Gabriel High School (SGHS) Principal Jim Schofield censored an article about first-year teacher Andrew Nguyen’s termination. ACLU-SoCal legal director Peter Eliasberg sent a letter to AUSD Superintendent Laura Tellez-Gagliano requesting that she investigate the students’ claims. The letter stated: “I request you to take appropriate action to ensure that these legal violations do not occur again. If you fail to do so, it will sharply increase the likelihood that the school and the district will be subject to a lawsuit.”

SGHS student newspaper, “The Matador,” began working on an article about first-year teacher Andrew Nguyen’s dismissal in May 2015, but when the students approached Principal Jim Schofield for a comment on the article, he allegedly told the adviser that the newspaper could not publish any articles relating to Nguyen’s impending departure. The Matador’s staff issued a statement that said: “The Matador views this as a clear violation of freedom of the press … as Nguyen’s dismissal is an ongoing and public incident relevant to the school.”

The allegations against the district include violating the students’ First Amendment rights and a provision in the California education code that governs student communications on high school campuses. “It’s very early and I don’t have all the information yet, but sources provided me with enough information that I wanted to make sure the district was aware there was potentially a very serious problem,” Eliasberg said.

Under the code, the only speech that can be prohibited is that which is “obscene, libelous or scandalous.” It also prohibits material that incites pupils to create a “clear and present danger” on school premises or would disrupt the orderly operation of the school. Eliasberg said an attorney for the school district later contacted him and informed him that they were investigating the claims.

Three student journalists met with the superintendent, assistant superintendent Marsha Gilbert and school board member Bob Gin to request that Schofield lift the censorship ban, to which administrators replied that they were “never” censored in the first place. Gin confirmed that the district does not think the students were censored, but failed to comment further.

Source: Pasadena Star-News, 6/5/15, By  Courtney Tompkins

[Editor’s Note: ACLU-SoCal’s letter states in part

If what I have learned is true – and I have no reason to doubt the sources of this information – then Dr. Schofield blatantly violated the rights of the student newpaper staff protected by California Education Code § 48907. That provision bars any prior restraints on student newspapers by school officials  except to prevent the publication of obscene, libelous, or slanderous material. There would have been no basis for the principal to believe that a story about the non-renewal of a teacher would, or would be likely to, include such material. Thus, if Dr. Schofield did direct the paper not to publish a story on the teacher’s non-renewal, as a number of sources report, he clearly violated the law. 

 In November 2011, Legal Clips summarized a decision by the Iowa Court of Appeals in Lange v. Diercks holding that a school district  improperly reprimanded the faculty advisor of a high school student newspaper for allowing student journalists to publish articles that district officials believed violated the limited restrictions on student speech set out in the state’s student free expression law. The appellate court rejected the school district’s argument that the state law was a codification of the student speech standard established by the U.S. Supreme Court in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). Instead, it determined that the law was passed “for the purpose of giving students more robust free-expression rights than those articulated by the Supreme Court.”]


Student sues New York state district after being disciplined for sharing “super hot” pepper with classmates during lunch

The parents of Nick Lien, a student at Centereach High School, have filed suit against Middle Country School District (MCSD) after he was disciplined for sharing his hot pepper with his classmates during lunch, reports CBS 2 New York. Suppliers of the peppers, known as bhut jolokia or ghost peppers, claim they pack 400 times the mouth-numbing heat of Tabasco.

“My friends saw that I had the new ghost pepper with me, and they all wanted to see how spicy it really was, because everybody thought that basically they could handle it and it was nothing,” Lien said. “So they all tried a piece.” However, two of Lien’s classmates left gym class, and landed in the nurse’s office with red faces, stomach pains, and burning tongues. He was then told by school officials that he would have to serve either after-school detention for two days, or a one day in-school suspension.

Lien expressed shock that sharing the pepper would lead to being disciplined. His parents were mystified when they said the school likened the pepper to psychedelic drugs. “I was told that it’s equivalent to giving someone LSD,” Lien said. The parents’ attorney, Ken Mollins, said, “Students’ rights cannot be violated by dictating to them what they can and can’t bring in for lunch, so it’s an out[r]age.”

MCSD’s superintendent said she does not tolerate any action that compromises the health of their students, and said she has determined that the hot peppers do pose such a threat. She said she stands by the detention. There are no New York state regulations yet on ghost peppers in schools.

Source: CBS 2 New York, 5/26/15, By Jennifer McLogan

[Editor’s Note: In November 2013, Legal Clips summarized an Associated Press article in the Huffington Post reporting that the federal Centers for Disease Control and Prevention (CDC) had issued voluntary guidelines on how to protect students with food allergies in schools. The guidelines were required by a 2011 federal law. The guidelines encourage schools to take such steps as restricting nuts, shellfish or other foods that can cause allergic reactions, and to make sure emergency allergy medicine, such as EpiPens, are available. Currently, 15 states and numerous local school districts have food allergy policies. However, Dr. Wayne Giles, who oversaw development of the advice for CDC, believes there is a need for a more comprehensive, standardized way for schools to deal with the issue. The number of students with food allergies is increasing. A recent CDC survey estimates that 1 in 20 U.S. children have food allergies, which represents a 50% increase from the late 1990s.  Experts aren’t sure why cases are rising.]



MIchigan court reinstates student-athlete to high school tennis team based on claim of bullying and harassment by teammates, their parents and coaches

mlive reports that Kalamazoo County Circuit Court issued a preliminary injunction ordering Portage Public Schools (PPS) to reinstate Carly Pratt to Portage Central High School’s (PCHS) girls varsity tennis team. The suit accuses PPS Superintendent, Mark Bielang, PCHS Principal Eric Alburtus, Athletic Director Joe Wallace and varsity tennis coach Peter Militzer of discrimination and violating Pratt’s constitutional and civil rights. PPS officials declined to comment on the suit, citing the federal Family Educational Rights And Privacy Act.

The suit alleges Pratt had to navigate a difficult path during her senior season because of bullying by her teammates and their parents, and coaches who ignored her pleas for help with the issues. “They searched her property at school, they searched her car, they’ve never found anything to support the allegations that were made against her and, at the same time, when Meredith Pratt has brought these allegations of bullying to the school they’ve done absolutely nothing to investigate those allegations,”  said Matthew DePerno, Pratt’s attorney.

DePerno said that in addition to the lawsuit filed in circuit court, he is considering filing a claim in federal court alleging that the school district’s treatment of Carly violated her constitutional rights, as well as Title IX.

According to the suit, Pratt’s problems with teammates began early in this year’s tennis season when they began spreading rumors that she was using alcohol and marijuana at school and practice. During the season, the lawsuit says Pratt’s tennis bag was searched by PCHS Assistant Principal Kim Lumas and, on at least one occasion, her car was searched for alcohol and marijuana without her consent or a warrant.

The lawsuit also  alleges that Pratt was issued a Breathalyzer by Wallace, which tested negative for alcohol. It states: “The Defendants and the School District’s officials and employees had no evidence, consent, or probable cause to conduct any searches of Carly’s possession or person, had no warrant issued, and were apparently operating on the rumors and bullying tactics of other students; which the school officials and employees did nothing to stop, but in fact contributed to this behavior.” Additionally, the lawsuit says that Pratt’s coaches threatened to remove her from the varsity tennis team, as well as remove her from qualification for any awards unless she stepped down as captain of the team.

DePerno contends PPS’ attorneys told him that Pratt was removed from the team “because the incident on May 21, 2015 demonstrated to them that Carly was not a good teammate.” That incident involved Pratt complementing a player from another school, who is her friend, on a shot in a match against one of Pratt’s teammates.

Source: mlive, 6/2/15, By Rex Hall Jr.

[Editor’s Note: In February 2011, Legal Clips summarized an Eau Claire Leader-Telegram article in the Pioneer Press reporting that Wally Ellenson, a former student-athlete at Memorial High School (MHS) in Eau Claire, Wisconsin and his parents had filed suit in state court against Eau Claire School District (ECSD), alleging that MHS boys basketball coach, Greg Van Grunsven, and Ellenson’s teammates harassed and bullied him. The parents claimed the harassment and intimidation reached the point that they moved in order to enroll their son at another school. The suit indicated that beginning in early 2009, some of his fellow students and teammates began to act toward him in an “aggressive, intimidating and harassing manner.” It also contended that Van Grunsven engaged in such conduct and “encouraged, permitted and tolerated” the same behavior directed specifically at Ellenson by his teammates.]


Nevada enacts groundbreaking school choice law giving parents almost universal access to state education funds

The Christian Science Monitor reports that Nevada Gov. Brian Sandoval has signed into law legislation that allows virtually all parents of K-12 students to opt out of public school and use their children’s state education dollars for a customized education, including private or religious schooling, online classes, textbooks, and dual-enrollment college credits. The state funds go into an education savings account (ESA), and dollars not spent by the parent in a given year roll over for future spending – until the student finishes high school or opts back into public school.

Nevada’s ESA law adds fuel to the long-standing debate about whether funneling public dollars to private schools is a catalyst for improvements or damaging to public schooling. “This is a voucher on steroids…. This is something many school choice advocates have been pushing for many years, this notion of universal school choice, and no state has come close to going as far as Nevada has,” says Michael Petrilli, president of the Thomas B. Fordham Institute.

Although Nevada is not the first state to create ESAs, it is the first to offer almost universal coverage, rather than limiting them  to select groups of students. Nevada is giving them to all who have been enrolled in public school for at least 100 days – about 453,000 children, or 93% of school-age students in the state. The universal aspect is groundbreaking, but the fact that Nevada chose ESAs, instead of vouchers and tax-credit programs, “makes it even more innovative and monumental,” says Lindsey Burke, an education policy fellow at the Heritage Foundation.

ESAs, like vouchers and tax-credit programs, are often opposed by teachers unions and other advocates for strong public school systems.“We’re very concerned that it would divert funds from public education … for students to attend private schools,” says Ruben Murillo Jr., president of the Nevada State Education Association. He criticized the ESA law on two bases: schools are still short on funds in the aftermath of budget cuts during the recession; and whether participating parents and educational service providers will be held to high enough standards to show they are benefiting students.

These new varieties of vouchers still represent “an organized effort to weaken public schooling,” says Kevin Welner, an education professor and director of the National Education Policy Center at the University of Colorado, Boulder. Proponents of vouchers, ESAs, and other school choice policies say they set up competition that forces public schools to better respond to families’ needs. Welner disagrees: “It’s not a good idea to create a highly regulated system of public schools and an almost entirely unregulated system of taxpayer-funded private schools and then pretend that we’ve set up a system of fair competition.”

Arizona was the first state to set up such accounts when it launched its Empowerment Scholarship Accounts in 2011. It has been followed by Florida, Mississippi, Tennessee, and now Nevada. The other states allow parents to use any saved dollars for college tuition as well, while Nevada allows spending only for college courses that students take before finishing high school.

At first, Arizona’s ESAs were only for students with disabilities. The ESA law was later expanded to include students in failing public schools, foster-care adoptees, active-duty military families, and native Americans living on reservations. While some opponents might worry about a steady stream of students leaving public schools, that hasn’t been the case in Arizona. Out of about 250,000 students who are eligible, about 1% applied for the 2014-15 school year, and currently there are about 1,200 participants, a spokesman for the Arizona Department of Education told the Monitor.

Source: The Christian Science Monitor, 6/3/15, By Stacy Teicher Khadaroo

[Editor’s Note: In October 2013, Legal Clips summarized a decision by the Arizona Court of Appeals, Division One, in Niehaus v. Huppernthal holding that the Arizona Empowerment Scholarship Accounts program (ESA) does not violate the state constitution’s Religion Clause or its Aid Clause. It also concluded that the ESA does not unconstitutionally condition receipt of a governmental benefit on the waiver of a state constitutional right to public education.] 

California district’s settlement of suit brought by Native American student allows student to display eagle feather on graduation cap

Clovis Unified School District (CUSD) has agreed to allow Christian Titman (who is Native American) to wear an eagle feather to his high school graduation, reports the Associated Press (AP) in Yahoo News, ending a suit brought by the American Civil Liberties Union of Northern California (ACLU-NoCal). Titman’s attorneys argued that the student’s rights to freedom of expression and religion in the state constitution were being violated.

Titman, a member of the Pit River Tribe, said he wants to attach the 5-inch feather he received from his father to the tassel on his cap at the Clovis High School graduation ceremony. In a letter to Titman’s attorneys, Superintendent Janet Young said the district has a strict graduation dress code intended to show “respect for the formality of the graduation ceremony, unity of the graduating class, and also to avoid disruption of the graduation ceremonies that would likely occur if students were allowed to alter or add on to their graduation cap and gown.” The district previously refused to allow stoles, leis, rosaries and necklaces on graduation caps and gowns, and its dress code is neutral to any religion. Young said that Titman could wear the eagle feather after the ceremony and take photos with the principal.

Novella Coleman, a staff attorney with ACLU-NoCal argued, “The district’s refusal to allow a small symbol of religious expression during the graduation ceremony is a misunderstanding of both the spirit and the letter of the law.” Coleman added, “The implication that an eagle feather with religious significance is unacceptable or disruptive signals a deep disrespect from the district.”

The issue of whether Native American students can wear eagle feathers at graduation has come up in other school districts in the country. Last month, a federal judge in Tulsa, Oklahoma, ruled that an American Indian student couldn’t wear an eagle feather on her graduation cap. U.S. District Court Chief Judge Gregory Frizzell said the school’s policy of prohibiting all decorations on graduation caps did not violate the U.S. Constitution’s right to exercise religion freely because it was religion-neutral and applied generally. The school also had a legitimate interest in maintaining the formality of the graduation ceremony and in demonstrating the unity of the graduating class.

Aaron Caplan, a constitutional law expert at Loyola Law School in Los Angeles, points out The U.S. Supreme Court has held that under the Constitution, governments don’t have to make exceptions to religiously neutral laws that are applied generally. However, he notes that the issue has not been resolved by the California Supreme Court under the state’s constitution. Titman is bringing his lawsuit under California’s state constitution. According to Caplan, the California Constitution guarantees free exercise and enjoyment of religion, but not if it would lead to actions that are “licentious” or inconsistent with peace or safety.  He believes that state constitutional provisions seem to favor Titman’s argument that he has a right to wear the eagle feather.

Source: Yahoo News, 6/3/15, By Sudhin Thanawala

[Editor’s Note: In April 2011, Legal Clips summarized a CBS/AP article reporting that the American Civil Liberties Union was suing the Livingston Parish school district on behalf of Seth Chaisson, a native American student. The district suspended Chaisson for violating the dress code which prohibited males from having long hair. Attorney Katherine Schwartzmann said the student, who is a Houma Indian, won’t cut his hair because of religious and cultural beliefs, but she says that parish school officials at a hearing did not appear to think his beliefs were sincere. Superintendent Bill Spear says officials offered exemptions and didn’t think the dress code substantially burdened the boy’s free exercise of his religious beliefs.]

ACLU sues Indiana district on behalf of parents claiming school officials conduct Christian themed prayers at school events

The Post-Tribune reports that the American Civil Liberties Union of Indiana (ACLU-IN) has filed suit in federal court against River Forest Community School Corporation on behalf of Jim and Nichole Bellar and their son, identified as J.B., claiming school officials at River Forest Junior/Senior High School are conducting Christian prayers at school events. The suit alleges that coaches in several sports say prayers before competitions.

According to the suit, when J.B. complained, coaches told him to sit silently. When his parents took it to school officials, they were told that J.B. should get along better with the coaches.

The suit also alleges that the school board conducts prayers at the start of its meetings. The Bellars say the school corporation also sponsors student-led prayers at River Forest graduations with “overtly Christian themes.”

The Bellars claim the prayers violate the First Amendment and are asking for nominal and compensatory damages, along with a request to enjoin school officials from leading prayers.

Source: Post-Tribune, 6/3/15, By Teresa Auch Schultz

[Editor’s Note: ACLU-IN’s legal complaint raises three factual allegations: (1) coach led prayers; (2) school board prayers; and (3) graduation prayers.

In May 2015, Legal Clips summarized a decision by a federal district court in South Carolina in American Humanist Ass’n v. South Carolina Dep’t of Educ. holding that a school district’s prior policy of official and school-sponsored student prayers at school events, such as graduations, violated the First Amendment’s Establishment Clause. As a result, it granted the plaintiffs’ motion to permanently enjoin the school district from officially promoting prayers at school sponsored events. However, the court concluded that the school district’s revised policy of allowing student led and initiated prayer at school events absent school district supervision and control did not violate the Establishment Clause. Applying the three-prong test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), it determined that the revised policy passed constitutional muster. The court pointed out that the speech being sanctioned by the revised policy is private speech, which even if it endorses religion is protected by the First Amendment’s free speech and free exercise of religion clauses.]

New Jersey teacher learns the pitfalls of commenting on social media after receiving a one year suspension of license for Facebook posts that mocked student’s name

NorthJersey.com reports that Yvette Nichols, a teacher in Wayne, New Jersey, had her teaching license suspended for a year after she mocked a student’s name on Facebook because a syllable sounded like a common curse word. The school district found her comments violated the district’s harassment, intimidation and bullying policy. A state panel suspended her teaching license for a year in a decision that the education commissioner upheld earlier this month. “Regardless of whether or not she intended her comments to be made public, [Yvette] Nichols’ conduct was immature and hurtful and falls below the ‘role model’ status that is expected of teachers,” the state panel wrote in its initial decision.

Nationwide, teachers have faced suspensions, reprimands and firings because of online posts that were discovered and found to be offensive or inappropriate. School officials say such teacher behavior, even outside of school, can harm relationships and trust with students and parents who look to teachers for leadership and authority.

In an age of instantaneous online communications, the traditional notion of free speech is being challenged because of the new and quasi-public nature of digital media. Disrespectful and racist comments that at one time went unnoticed or ignored, now can end up widely read and shared.“The First Amendment is certainly a strong privilege for all of us, but if it impacts negatively on the work they do, there is obviously going to be consequences for that,” said Richard Bozza, executive director of the New Jersey Association of School Administrators.

On the other hand, civil libertarians say schools have gone too far, infringing on teachers’ rights to free speech and privacy. Teachers have received  support from groups such as the American Civil Liberties Union and Alliance Defending Freedom, who say that schools are infringing on the rights of teachers as private citizens. “In most of these cases when a teacher is operating on their private Facebook page, it’s very clear they’re speaking in their personal capacity and not as an employee,” said Rory Gray, legal counsel for Alliance Defending Freedom. “A school district shouldn’t have authority to regulate that.”

Teachers are held to a higher standard of behavior than individuals in other professions because of their relationship to the community, officials say. New Jersey law grants the state authority to revoke or suspend licenses for “conduct unbecoming a teacher.” So where is the line between an insensitive comment and a punishable offense? Usually, if it’s gotten the attention of school administrators, that means it has already had a negative impact, Bozza said. In most of these cases, the complaints have come from a parent, co-worker or community member who saw the online comment.

The social media conflicts come as schools are stepping up efforts to discourage bullying and teasing and attempting to promote respect and tolerance. Teachers are key to creating a respectful school environment so their actions and words outside the classroom matter, said Stuart Green, director of the New Jersey Coalition for Bullying Awareness and Prevention. “There is nothing more corrosive to school climate than teacher misbehavior — aggression toward students, demeaning or humiliating students — whether it’s electronically or in person,” said Green, a licensed clinical social worker.

Source: NorthJersey.com, 5/18/15, By Hannan Adely

[Editor’s Note: On June 2, 2015, Alex Napoliello of N.J.com reported that Leslie Anderson, a law clerk for Middlesex County Superior Court Judge Travis L. Francis, has been suspended with pay after comments she posted on her Facebook page about the death of New Jersey State Trooper Anthony Raspa. Raspa was killed over the weekend in an on-duty crash with a deer. “Not that sad, and certainly not ‘tragic,'” Anderson wrote. “Troopers were probably traveling at a dangerously high speed as per usual. Totally preventable. At least they didn’t take any of the citizens they were sworn to serve and protect with them.” In another post, Anderson described the praise Raspa was receiving by other commenters for his service as “absurd” and “nonsensical.”

Winnie Comfort, director of communications for the New Jersey judiciary system, told NJ Advance Media Tuesday that Anderson was suspended for two weeks with pay, pending an outcome of an internal investigation. “It would be premature for me to suggest anything that they will find until after the investigation,” Comfort said.

In January 2013, Legal Clips summarized a decision by a two-judge panel of the Appellate Division of the New Jersey Superior Court in In re Tenure Hearing of Jennifer O’Brien holding that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.]




Utah Court of Appeals rules that video from school camera was subject to FERPA disclosure restrictions because it was an “education record”

Bryner v. Canyons Sch. Dist., No. 20130566 (Utah App. Ct. May 29, 2015)

Abstract:  The Utah Court of Appeals has ruled that a videotape from a security camera placed outside the exit to a middle school classroom was subject to the disclosure restrictions of the federal Family Educational Rights and Privacy Act (FERPA). The appellate court concluded that the videotape was an “education record” within the meaning of FERPA because it contained personally identifiable information of students. It rejected the plaintiff’s argument that FERPA’s application is limited to academic records. The appellate court found that the video: (1) contained information directly related to students; and (2) was maintained by persons acting for the school district.

The Court of Appeals also concluded that under the state’s government records access and management law the school district could provide the plaintiff with a redacted copy of the tape, but the plaintiff was responsible for paying the cost of redaction.

Facts/Issues: Roger Bryner filed a records request pursuant to Utah’s Government Records Access and Management Act (GRAMA) with Canyons School District (CSD) after his son was involved in a fight at Butler Middle School. A surveillance camera recorded that incident. CSD officials denied Bryner’s request for a copy of the tape. They rejected the request on the ground that the videotape constituted an “educational record” within the meaning of FERPA and, therefore, they were prohibited pursuant to FERPA from releasing an unredacted copy of the tape. Officials also stated that because the video contained the personally identifiable information of students other than Bryner’s child, the school would only release the video to Bryner if and when it obtained written consent from all of the parents of the other students shown in the video.

Bryner filed a suit in a state trial court against CSD, asking the court to determine that CSD was required to produce the video. Bryner then filed a motion for summary judgment, requesting that the court “rule that [the video] is not covered under FERPA and must be disclosed pursuant to a GRAMA request.” In opposition, the District reiterated its position that the video was an education record. The District asked the trial court to deny summary judgment and to “affirm [the District’s] determination that [the video] is an ‘education record’ subject to the disclosure restrictions of FERPA.”

The trial court denied Bryner’s motion and concluded that because other students were clearly identifiable in the video, Bryner’s GRAMA request was subject to FERPA and the District had properly denied Bryner’s request to disclose an unredacted copy of the video. In response to Bryner’s request for a redacted copy of the video, CSD filed a supplemental memorandum with the court and indicated that it would cost approximately $120 to redact the other students’ images from the video. The trial court issued an order granting the request for a redacted copy of the video provided Bryner paid $120 for redaction. The court gave Bryner ten-days from the date of the court’s order to remit payment for the redacted tape. He failed to do that, so the court dismissed the case with prejudice. Bryner timely appealed the court’s ruling.

Ruling/Rationale: The Utah Court of Appeals affirmed the trial court’s decision as to nondisclosure of an unredacted version of the video and payment of the cost of redaction. It addressed Bryner’s argument that the trial court erred by determining that the video was an education record subject to FERPA.

The appellate court began it analysis by pointing out that under GRAMA “certain records are classified as nonpublic …, and disclosure of such records may be limited by GRAMA itself or by other statutes, rules, or regulations.” Among those nondisclosable records are records “to which access is restricted pursuant to court rule, another state statute, federal statute, or federal regulation, including records for which access is governed or restricted as a condition of participation in a state or federal program or for receiving state or federal funds.” It determined that FERPA’s requirements govern the disclosure under GRAMA of any records that fall within FERPA’s reach.

The appellate court then took up the question of whether the video was an “education record” within the meaning of FERPA. It stated, “A plain reading of FERPA’s statutory language reveals that Congress intended for the definition of education records to be broad in scope.” As a result, it rejected Bryner’s suggestion that only those records that are academic in nature are “education records” under FERPA.

The appellate court analyzed whether the video satisfies the two elements of an education record set forth in the statute. The first element examined was whether the record contains information directly related to a student. It agreed with the trial court that the video contains information directly related to the students involved in the altercation. In reaching that conclusion, the appellate court cited the United States Department of Education’s Family Policy Compliance Office’s (FPCO) position that “a parent may only inspect a school videotape showing his or her own child engaged in misbehavior if no other students are pictured.”

The appellate court also noted that “[o]ther guidance provided by the FPCO suggests that video recordings may constitute education records only for those students who are ‘directly related’ to the focus or subject of the video.” In addition, it determined that “the students’ images in the Video constitute information identifying the students.” The appellate court, therefore, concluded “the Video contains information ‘directly related to’ the students involved in the incident.”

The appellate court next considered whether the video was maintained by persons acting for the school district. It rejected Bryner’s argument that this element was not met because CSD admitted that the video was not “administered by educators,” or “regularly reviewed by educators.” The court indicated that “FERPA requires only that the record be maintained by or on behalf of an educational agency, not that educators themselves maintain the records or review them.”

The appellate court concluded that the video contained information directly related to students involved in the incident, other than Bryner’s child, and that Bryner had failed to demonstrate that the video was not “maintained” by CSD. It, therefore, affirmed “the trial court’s determination that the Video is subject to the protections of FERPA.”

Finally in regard to the question of who was responsible for paying the cost of redacting the video, the appellate court held:

In accordance with FERPA and GRAMA, the Video had to be redacted before Bryner could receive a copy of it, and the District could charge a reasonable fee for the redaction process. We uphold the trial court’s determination that the District introduced sufficient evidence that for $120, the District could create a redacted copy of the Video with the personally identifiable information of the other students removed. Accordingly, the trial court did not err in ordering the District to produce a redacted copy of the Video and requiring Bryner to bear the cost of redaction.

Bryner v. Canyons Sch. Dist., No. 20130566 (Utah App. Ct. May 29, 2015)

[Editor’s Note: In May 2013, Legal Clips summarized a decision by a three-judge panel of the Florida District Court of Appeals, First District, in Rhea v. District Bd. of  Trustees of Santa Fe College holding that a college did not violate the state’s public records law by refusing to provide a professor with an unredacted copy of a student’s email complaining about the professor’s classroom behavior and teaching methods. The panel concluded that the email was an education record under the federal Family Educational Rights and Privacy Act (FERPA) and thus the student’s identity was protected from disclosure.]


Parent of student files suit against Michigan district alleging school officials failed to take steps to stop bullying/harassment by classmate

The mother of an eighth grade student has filed suit against Hartford Public Schools (HPS) and a number of school officials, reports WOOD TV 8, alleging that the school district and some staff knew the student was being bullied but didn’t take the proper steps to stop the bullying. In addition to HPS, Hartford Middle School Principal Joel Passenger, Hartford High School Principal David Janicki and Superintendent Andrew Hubbard were named as defendants in the suit.

The suit details a number of instances where the alleged bully threatened the student with physical violence and death. It claims the alleged bully has a history of “targeting female students and staff at school for intimidation, threats and assaultive behavior.” According to the suit, when the girl’s parent spoke to the middle school principal, he said that “it was nothing to worry about” and was “very vague.”

The suit also contends that when police tried to investigate the threats, officers were told that the school officials and teachers wouldn’t talk to them about the threats, citing privacy concerns. The Hartford police officer, who investigated the case, said HPS had always cooperated with police investigations in the past and had never cited privacy concerns before this incident. Staff eventually provided some information to police about the alleged threats. There is an open criminal investigation.

Superintendent Hubbard said he was not aware of the suit, adding, “We have policies and regulations in place that meet the state code and we follow those policies as directed by the board of education.”

The suit alleges that HPS violated Title IX and the student’s 14th Amendment rights. The district allegedly violated Title IX by not requiring “appropriate investigations of complaints or identifying the person to whom complaints should be directed.” It also alleges that the threats “constitute severe, pervasive and objectively offensive sex-based harassment that has deprived [the alleged victim] of access to educational opportunities and benefits provided by the middle school.” The 14th Amendment violation is allegedly because the threats meant that the girl did not get equal protection under the law and her rights to personal safety and security were violated.

Source: WOOD TV 8, 5/27/15, By Staff

[Editor’s Note: In April 2015, Legal Clips published a Sua Sponte item reporting that the National School Boards Association (NSBA) had issued a press release in response to a U.S. Court of Appeals for the Fourth Circuit three-judge panel’s decision in Does v. Board of Education of Prince George’s County, ruling that courts are required to apply the deliberate indifference standard, to determine liability under Title IX, rather than the negligence standard that the plaintiffs sought. The panel’s decision is in alignment with the U.S. Supreme Court’s 1999 decision in Davis v. Monroe County Board of Education, which held that school districts may only be held liable under Title IX for peer-on-peer sexual harassment if school officials are actually aware of and act deliberately indifferent to severe, pervasive, and objectively offensive harassment.]




Louisiana district enters into consent order with DOJ that provides a three-year desegregation plan leading to the district achieving unitary status

Courthouse News Service reports that the Avoyelles Parish School Board (APSB) has agreed to a three-year plan with the U.S. Department of Justice (DOJ)  to complete its 1967 goal of desegregation. APSB has been under a federal desegregation order since 1967. The case is one of several remaining in which desegregated – or unitary – status has never been reached, despite the fact that it has technically been in litigation for over 50 years, according to court documents.

If APSB complies with federal regulations for the next three years and implements a series of federal directives, including adoption of a uniform admissions process and ensuring that classes within schools are desegregated, it will be considered unitary. In addition to those directives, the school board must also determine whether a magnet program can be established at a “racially identifiable African American elementary school,” and take steps to encourage white students to transfer to that school.

Additionally, APSB must revise discipline policies in schools to reduce racial disparities in the use of exclusionary discipline, such as suspensions and expulsions, among other directives. Commenting on the agreement, Chief Judge Dee Drell of the Alexandria, Louisiana Federal Court said, “What this Court has seen along the way is a hopeful transformation of a school board which was initially tentative, recalcitrant, and partially uninformed regarding the depth of its responsibilities in the desegregation area.” He continued, “That board has now matured and we have seen a remarkable effort within the board to get on with the work of providing the best for the children of Avoyelles Parish.”

Principal U.S. Deputy Assistant Attorney General Vanita Gupta of the federal Civil Rights Division praised the group effort involved in completing desegregation of schools in Avoyelles Parish.  “The Avoyelles Parish School Board’s unanimous vote to approve the consent order reflects our shared goal of securing equal educational opportunities for all students,” Gupta said. “We are confident that this agreement will bring meaningful progress, and we look forward to working closely with the School Board over the next three years to bring this case to a successful close.”

Source: Courthouse News Service, 5/27/15, By Sabrina Canfield

[Editor’s Note: In February 2015, Legal Clips summarized an article in Education News, culled from a number of news sources, reporting that the DOJ had reached a tentative agreement with Huntsville City Schools (HCS) in a lengthy legal dispute over the desegregation of the city’s schools. The agreement represents the successful conclusion of mediation between the parties, which was ordered by federal court Judge Madeline Haikala in the summer 2014. The mediation focused on reaching a proper agreement in rezoning the school zone boundary lines.]

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