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Fifth Circuit, sitting en banc, rules Mississippi district did not violate student’s First Amendment rights by disciplining him for off-campus online posting of rap video containing threatening language directed at two teacher/coaches

Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Aug. 20, 2015) (en banc)

Abstract: The U.S. Court of Appeals for the Fifth Circuit, sitting en banc (all active judges participating), has ruled that a Mississippi district did not violate a student’s First Amendment free speech rights when school officials disciplined the student for a video he created and posted online off-campus that contained threatening language directed at two teachers/coaches. The majority’s opinion (there were a number of concurring and dissenting opinions) held that the substantial disruption standard enunciated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969), was controlling even though the student speech in question took place off-campus. Because it determined that the speech was subject to regulation by school officials under Tinker, the majority declined to reach the issue of whether the student could be disciplined based on his speech constituting a “true threat.”

Facts/Issues: Taylor Bell, a student at Itawamba Agricultural High School (IAHS), filed suit in federal court against the Itawamba County School Board (ICSB), Superintendent Teresa McNeece and Principal Trae Wiygul, alleging that the defendants disciplined him in violation of his First Amendment free speech rights. Bell was suspended and sent to an alternative school for five weeks after he posted on Facebook a rap song he had composed and recorded accusing two IAHS coaches of flirting with and maintaining inappropriate contact with female students.

The suit contended that Bell’s song “was produced off school property, without using school resources, never played or performed at the school, not performed at a school sponsored event, and never accessed by students on school property.” Bell claims that four days after he posted the song on Facebook, he was taken out of class to meet with the school principal, the superintendent and the school board attorney, all of whom accused him of “making false allegations and threats.”

A school district disciplinary committee found that his song amounted to harassment and intimidation of school teachers and possible threats against teachers. The committee recommended a seven-day suspension and five weeks at Itawamba Alternative School. On appeal, the school board upheld the punishment and affirmed that Taylor Bell “threatened, harassed, and intimidated school employees” with the publication of his song.

The suit made three federal claims:  (1) that Bell was disciplined for engaging in constitutionally protected speech; (2) that the discipline violated the parenting rights of his mother, Dora Bell, as guaranteed by the Fourteenth Amendment Due Process Clause; and (3) that Bell’s speech was entitled to heightened protection as it addressed a matter of public concern. The complaint also alleged violation of Mississippi law. Having determined that there were no factual issues, the court resolved Bell’s claims by summary judgment.

The district court ruled that school officials did not violate Bell’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

The court rejected Bell’s argument that because his speech was regarding a matter of public concern, it was entitled to heightened protection. It found that he had failed to demonstrate as a matter of law that student speech is entitled to such heightened protection in lieu of the Tinker standard. The court also concluded that had it not found for school officials on the First Amendment speech claim, it would have granted them qualified immunity because the Bell  had failed to show that a reasonable official would have believed  his song to be clearly protected First Amendment speech.

The court, likewise, dismissed the parent’s Fourteenth Amendment due process claim that the school’s disciplinary measures infringed on her liberty interest to make decisions regarding the care, custody and control of her child. The parent had not shown, ruled the court, that the disciplinary measures taken by school officials were not tied to the school’s compelling interest of maintaining school order. The parent appealed the district court’s ruling.

A U.S. Court of Appeals for the Fifth Circuit three-judge panel, in a 2-1 split, ruled that ICSB violated Bell’s free speech rights by disciplining him for off-campus speech. The panel determined that the speech in question, i.e., a rap song accusing two male coaches of misconduct with female students, which was posted online on Facebook and YouTube, was not speech that occurred on school property or during a school-sponsored event off-campus. It concluded that the federal district court had incorrectly applied Tinker because the evidence did not “support the conclusion that a material and substantial disruption at school actually occurred or reasonably could have been forecasted.”

The panel pointed out that the U.S. Supreme Court’s “student-speech” jurisprudence does not address the question of student speech that occurs off-campus and not at a school approved event. Even in the absence of Supreme Court precedence, it found that it was neither necessary nor appropriate for the panel to anticipate such a decision. It also rejected the school board’s attempt to characterize the student’s speech as undeserving of First Amendment protection under Fifth Circuit precedent or because it constituted a true threat.

The Fifth Circuit subsequently granted ICSB’s motion for rehearing en banc and vacated the panel’s decision.

Ruling/Rationale: A majority of the Fifth Circuit’s judges, sitting en banc, affirmed the district court decision. The majority began with a brief review the U.S. Supreme Court’s and the Fifth Circuit’s student speech jurisprudence. In addition to Tinker, it touched on Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988), and Morse v. Frederick, 551 U.S. 393 (2007). Noting that Fraser, Kuhlmeier, and Morse are exceptions to Tinker that do not require school officials to prove the occurrence of an actual disruption or one that reasonably could have been forecast in order restrict student speech, the majority pointed out that the Fifth Circuit’s decision in Ponce v. Socorro Independent School District, 508 F.3d 765 (5th Cir. 2007), “extended the Morse exception to certain threats of school violence.”

The majority then addressed the student’s argument that “Tinker does not apply to off-campus speech, such as his rap recording; and, even if it does, Tinker’s ‘substantial disruption’ test is not satisfied.” It pointed out that at the time Tinker was decided “the Internet, cellphones, smartphones, and digital social media did not exist.” It added that technology gives students “the ability to disseminate instantaneously and communicate widely from any location via the Internet.” Acknowledging “such communications might be protected speech under the First Amendment,” the majority conceded that “off-campus threats, harassment, and intimidation directed at teachers create a tension between a student’s free speech rights and a school official’s duty to maintain discipline and protect the school community.”

Given “these competing interests and increasing concerns regarding school violence,” the majority found it “necessary to establish the extent to which off-campus student speech may be restricted without offending the First Amendment.” It found the student’s position that “Tinker does not apply to speech which originated, and was disseminated, off-campus, without the use of school resources” untenable. It concluded the student’s position “fails to account for evolving technological developments, and conflicts not only with our [Fifth] circuit’s precedent, but with that of every other circuit to have decided this issue.”

The majority found that of the six federal circuits that have addressed whether Tinker applies to off-campus speech, five, including the Fifth Circuit, have held it does. While the Fifth Circuit case, Shanley v. Ne. Indep. Sch. Dist., Bexar Cnty., Tex., 462 F.2d 960 (5th Cir. 1972), ultimately held that the off-campus student speech enjoyed First Amendment protection, the court had applied Tinker. It pointed out that the other four circuits “have held that, under certain circumstances, Tinker applies to speech which originated, and was disseminated, off-campus.” based on Fifth Circuit precedent and caselaw from four other circuits in agreement, the majority determined “Tinker applies to off-campus speech in certain situations.”

The majority then delved into the question of under what circumstances school officials may restrict off-campus student speech. Relying on the summary judgment record, it eschewed adopting a specific rule. Instead, the majority concluded that the student’s  “admittedly intentionally directing at the school community his rap recording containing threats to, and harassment and intimidation of, two teachers permits Tinker’s application in this instance.”

In order to answer the question of what circumstances, the majority analyzed the Fifth Circuit’s decision in Porter v. Ascension Parish Sch. Bd., 393 F.3d 608 (5th Cir. 2004). In Porter, the Fifth Circuit applied Tinker to the school’s regulations, but our court held the speech, a drawing created off-campus, “was protected because the student never intended for the drawing to reach the school, describing its introduction to the school community as ‘accidental and unintentional.’” The Fifth Circuit stated:

[I]ts holding was “not in conflict with this body of case law” regarding the First Amendment and off-campus student speech because the drawing’s being composed off-campus and remain[ing] off-campus for two years until it was unintentionally taken to school by his younger brother takes the present case outside the scope of these precedents.

The majority found the relevance of Porter is the “speaker’s intention that his speech reach the school community, buttressed by his actions in bringing about that consequence.” It concluded that intention “supports applying Tinker’s school-speech standard to that speech.”

Finding that “the pervasive and omnipresent nature of the Internet has obfuscated the on-campus/off-campus distinction,” the majority held: “Tinker governs our analysis, as in this instance, when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher, even when such speech originated, and was disseminated, off-campus without the use of school resources.”

Turning to the present case, the majority said the facts were clear that the student  “produced and disseminated the rap recording knowing students, and hoping administrators, would listen to it.” It found that “regardless of whether [the student’s] statements in the rap recording qualify as ‘true threats’, … , they constitute threats, harassment, and intimidation, as a layperson would understand the terms.” It, therefore, concluded that “there is no genuine dispute of material fact that Bell threatened, harassed, and intimidated the coaches by intentionally directing his rap recording at the school community, thereby subjecting his speech to Tinker.”

Finally, the majority applied Tinker’s substantial disruption standard to the facts of the case. Specifically, whether the student’s recording either caused an actual disruption or reasonably could be forecast to cause one. It concluded that “there is no genuine dispute of material fact that the school board’s finding the rap recording threatened, harassed, and intimidated the two coaches was objectively reasonable.” It then considered whether “the school board’s disciplinary action against Bell, based on its finding he threatened, harassed, and intimidated two coaches, satisfies Tinker.”

The majority said, “Arguably, a student’s threatening, harassing, and intimidating a teacher inherently portends a substantial disruption, making feasible a per se rule in that regard.” However, it did not reach that question and, instead, found that school officials could have reasonably forecast that the student’s conduct could cause a substantial disruption. Citing the holding in A.M. ex rel. McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009): “While school officials must offer facts to support their proscription of student speech, this is not a difficult burden, and their decisions will govern if they are within the range where reasonable minds will differ,” it emphasized that “school authorities are not required expressly to forecast a ‘substantial or material disruption’; rather, courts determine the possibility of a reasonable forecast based on the facts in the record.”

Applying Cash’s precedent to the summary judgment record and relying on other reasons, the majority found “a substantial disruption reasonably could have been forecast as a matter of law.” It pointed out that “the manner in which [the student] voiced his concern— with threatening, intimidating, and harassing language—must be taken seriously by school officials, and reasonably could be forecast by them to cause a substantial disruption.” It also noted “the speech pertained directly to events occurring at school, identified the two teachers by name, and was understood by one to threaten his safety and by neutral, third parties as threatening.”

In addition, the majority found that Bell “admitted he intended the speech to be public and to reach members of the school community, which is further evidenced by his posting the recording to Facebook and YouTube.” Further, it found “the school-district’s policy demonstrates an awareness of Tinker’s substantial-disruption standard, and the policy’s violation can be used as evidence supporting the reasonable forecast of a future substantial disruption.”

In regard to the school board’s response to the video, the majority opined, “The reasonableness of, and amount of care given to, this decision is reinforced by the school board’s finding, differently from the disciplinary committee’s, that [the student’s] statements also constituted threats.” It concluded that “with near-constant student access to social networking sites on and off campus, when offensive and malicious speech is directed at school officials and disseminated online to the student body, it is reasonable to anticipate an impact on the classroom environment.”

In closing, the majority said, “In considering [the student’s] First Amendment claim, and our having affirmed summary judgment for the school board under Tinker, it is unnecessary to decide whether Bell’s speech also constitutes a “true threat” under Watts v. United States, 394 U.S. 705 (1969).”

In addition to the majority opinion, there were three concurring and two dissenting opinions filed. The first concurrence recognized the relevance of the Tinker, but believed courts should not rigidly adhere that standard in cases involving threats to kill teachers. It called on courts to take technological and societal changes into account.

The first concurrence said, “Judges should also view student speech in the further context of public education today—at a time when many schools suffer from poor performance, when disciplinary problems are at their highest, and when schools are, in many ways, at their most ineffective point. “ It then suggested the following rule:

Student speech is unprotected by the First Amendment and is subject to school discipline when that speech contains an actual threat to kill or physically harm personnel and/or students of the school; which actual threat is connected to the school environment; and which actual threat is communicated to the school, or its students, or its personnel.

The second concurrence emphasized that “nothing in the majority opinion makes Tinker applicable off campus to non-threatening political or religious speech, even though some school administrators might consider such speech offensive, harassing, or disruptive.” It believed the majority had avoided creating a precedent that would allow under Tinker “the suppression of student speech (even political speech) based on its consequences rather than its content,” which “would empower schools to regulate students’ expressive activity no matter where it takes place, when it occurs, or what subject matter it involves—so long as it causes a substantial disruption at school.”

The second concurrence concluded that “the majority opinion avoids such “ominous implications” and does not subject a broad swath of off-campus student expression to Tinker.” It expressed agreement with the majority “[b]ecause this cautious approach does not place public school officials in loco parentis or confer upon them a broad power to discipline non-threatening off-campus speech.”

The third concurrence criticized the dissent saying that “[i]dentifying some aspect of [the student’s] song that addresses a matter of public concern therefore is not enough to elevate it above the Tinker framework unless Tinker does not apply to this type of off-campus speech.” It stated: “For the reasons discussed in the majority opinion, along with the views expressed by every other circuit that has taken a position on this issue, I agree that it does, at least when the speech is threatening, harassing, and intimidating as it is here.”

The first dissent, which was written by the judge who had authored the vacated panel opinion, found the majority opinion in error on three grounds:

(1) [The student] is entitled to summary judgment because his off-campus rap song was specially protected speech on a matter of public concern;

(2) the School Board was not authorized by Tinker to censor students’ off-campus online speech;

(3) even assuming arguendo that Tinker granted the School Board power to censor such speech, the School Board was not entitled to summary judgment under Tinker, because the evidence, viewed in the light most favorable to the non-movant, Bell, does not support the conclusion that Bell’s speech caused a substantial disruption of school activities or justified a reasonable forecast of such a disruption by school officials.

This dissent detailed four main errors in reasoning by the majority. First, it found the majority opinion failed to acknowledge that the student’s rap song constituted speech on a “matter of public concern.” Second, the majority by expanding the scope of schools’ authority to regulate students’ off-campus speech disregarded Supreme Court precedent establishing that minors are entitled to “significant” First Amendment protection. Third, “by holding that the Tinker framework applies to off-campus speech like Bell’s, the majority opinion simply ignores that Tinker’s holding and its sui generis ‘substantial-disruption’ framework are expressly grounded in ‘the special characteristics of the school environment.’” Fourth, the majority opinion erred in its application of the Tinker framework because “the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so.”

The other dissent began by stating: “[T]he majority opinion also errs in its very application of the Tinker framework. As detailed in the panel majority’s opinion, the summary-judgment evidence simply does not support the conclusion, as required by Tinker, that Bell’s song substantially disrupted school activities or that school officials reasonably could have forecasted that it would do so.” It said it was “unaware of a circuit or state supreme court going as far as the majority in this case and holding that threatening, harassing, or intimidating online speech that occurred purely off campus may be prohibited or punished.”

The dissent concluded the student’s “speech does not fit within the currently established, narrow categories of unprotected speech, and I would wait for the Supreme Court to act before exempting a new category of speech from First Amendment protection.” It also argued that the student’s speech “does not fall within the First Amendment exception we have previously recognized for student speech that threatens violence bearing the stamp of a well-known pattern of recent historic activity: mass, systematic school-shootings in the style that has become painfully familiar in the United States.”

Bell v. Itawamba Cnty. Sch. Bd., No. 12-60264 (5th Cir. Aug. 20, 2015) (en banc)

[Editor’s Note: In May 2015, Legal Clips summarized an article in the Student Law Press Center reporting on oral argument in Bell v. ICSB. Bell’s attorney Scott Colom framed the issued as: “The question in this case is whether government is so powerful that it can reach into the parents’ home, into a student’s computer and punish the student as if it were the parent.”

Colom ran into sharp questioning from Judge Rhesa Hawkins Barksdale, the dissenting vote in the December panel opinion, who argued that technology removes any distinction between on-campus and off-campus speech and that schools should have equivalent punitive authority over both. When Colom said giving schools punitive authority over off-campus student speech could even allow them to suspend a student who used sharp language criticizing an elected school superintendent at a political rally, Barksdale shot back. “That’s not what we’re dealing with,” Barksdale said. “We’re dealing with threats, harassment and intimidation.”

The school district’s attorney, Benjamin E. Griffith, argued that Bell’s constitutional challenge could be invalidated either by extending Tinker to reach potentially disruptive speech that is “intended to reach the school” or by finding that Bell’s speech constituted a “true threat,” which the Supreme Court has deemed to be categorically outside the First Amendment even in the off-campus adult world.

Several judges visibly struggled to come up with a legal standard that protects student political commentary and whistle-blowing speech from school retaliation. “Everything you say these days has the potential of reaching the Internet, so where’s the line?” asked Judge Jennifer Walker Elrod.]


Four Iowa districts suing seller of alleged defective students’ tablets

According to The Des Moines Register, The Van Buren, Albia, Keokuk and West Burlington Independent school districts are suing CurriculumLoft, who allegedly sold them KUNO tablets intended for student use. The districts bought the tablets, which run on an Android operating system, for students to take tests on, as well as do homework and other classroom activities.

The four districts all claim the tablets had problems, including apps that would disappear after being installed, slow speeds and low battery life, according to the lawsuit. The tablets would also randomly delete students’ homework and sometimes assigned homework wouldn’t appear on the devices as it should have.

The districts also claim they regularly had to wait more than 24 hours to speak with a CurriculumLoft technician when problems happened, the lawsuit said. “These delays are unreasonable when there are hundreds of students and teachers depending on the KUNOs for educational purposes and the KUNOs present consistent problems, requiring constant communication with CurriculumLoft,” the legal complaint alleges.

The districts have paid nearly $1.6 million for the tablets, according to the lawsuit. CurriculumLoft has refused to give refunds to any of the districts, despite requests by all four, the lawsuit said. The suit claims the company has breached its contracts with the four school districts, as well as the warranties on the KUNO tablets.

Source: The Des Moines Register, 8/12/15, By Grant Rodgers

New rule requires parents in Michigan seeking waiver from state’s mandatory vaccination law to attend class

Michigan has implemented a new rule requiring parents seeking a vaccination waiver for their children to attend a class at their local health department, reports the Detroit Free Press. The rule applies to children entering a licensed day care, a preschool, the Head Start program, kindergarten, seventh grade or enrolling in a new school district. The rule has reignited the debate over mandatory vaccinations.

The goal of the new rule is to reduce the number of vaccination waivers in Michigan, which has the fourth-highest rate of waivers in the nation, according to the federal Centers for Disease Control and Prevention (CDC). Any parent who wants a waiver for philosophical or religious reasons must attend a session. Parents who have obtained  medical waivers aren’t required to  attend a class. Dr. Eden Wells, chief medical executive at the Michigan Department of Health and Human Services (MDHHS), said, “We need to have this rule to help parents get as much information as they can to make the most informed decision regarding whether or not they’re going to vaccinate their child.”

Statewide, 5.9% (or 7,049) of Michigan children entering kindergarten in 2013 had vaccine waivers, according to the CDC. “Infection can spread pretty rapidly among schoolchildren,” Wells said. “What will happen is even if the non-vaccinated child isn’t sick … they may be asked to stay out of school until the outbreak is over. And that could mean a couple of weeks out of school.”

Wells said the new rule in part is targeted at parents who receive waivers out of convenience — those who run out of time to schedule a visit to get their children vaccinated, and opt to just sign a waiver instead. But even with the no-pressure approach, the new rule is raising some concerns. Parents are required to sign a form in which they “acknowledge that I may be placing my child and others at risk of serious illness should he or she contract a disease that could have been prevented through proper vaccination.”

Bob Swanson, director for the division of immunization at the MDHHS, said local health departments are free to establish their own rules for the waivers. But he said that from the state’s perspective, the form provides a spot where parents can explain why they signed. According to Swanson, there is no grace period for obtaining the waiver. He said, “It’s very clear in the public health code —  a child entering a program needs to have an immunization record at the time of admittance or a waiver.”

Source: Detroit Free Press,  8/13/15, By Lori Higgins

[Editor’s Note: In July 2015, Legal Clips summarized an article in the San Jose Mercury News reporting that Gov. Jerry Brown had signed into law Senate Bill 277 (SB 277), which requires almost all California schoolchildren to be fully vaccinated in order to attend public or private school. The law only allows for medical exemptions to vaccinations and students would have to be vaccinated without regard to their parents’ personal or religious beliefs. Only two other states, Mississippi and West Virginia, have vaccination laws that only permit medical exemptions to mandatory immunizations.]




Pittsburgh high school’s rules for accommodating transgender students could be model for district

Brashear High School in Pittsburgh, Pennsylvania has implemented de facto policies for restrooms, gyms and other everyday situations that have triggered flare-ups between transgender students and schools across the nation, reports the Pittsburgh Post-Gazette. At BHS, transgender students may choose the names they put on their ID and the gender pronouns that their teachers and peers use to refer to them. Locker rooms are treated the same as bathrooms.

This past spring, the high school’s prom dress code was not gender specific, setting out guidelines for suits and dresses, rather than male and female dress. Devin Browne, a teacher at BHS and an adviser for the school’s Gay Straight Alliance, wants the policy to become districtwide.

This past spring, Browne sat in on meetings with district representatives, including Jocelyn Kramer, deputy solicitor for Pittsburgh Public Schools. She calls Brashear’s draft “perfectly timely.” The district is working with the federal Office for Civil Rights to update its nondiscrimination and harassment policies, Ms. Kramer said. The district’s protections under Title IX include gender identity but have not been recently updated.

Board policies are “a recitation of the law and position of the board,” Ms. Kramer said. It’s the administrative regulations that are at play here, the “more technical pieces” — permitting students to use the bathroom of the gender with which they identify, allowing them to choose their name on nonofficial school documents, and not permitting a dress code that would prohibit gender expression.

Kramer said the administrative regulations, which require review but not a formal vote from the school board, are being “informed by the work Brashear has done.” “They may not be identical,” she said, stating that the district hopes to streamline the language because generalizing school-specific policies over the district is difficult. “Different schools have different needs.”

Kramer anticipates the policy and administrative regulations going before the board in October at the latest. After board review, they would go into effect immediately with an update of the online policy manual. The next cycle of staff professional development in the winter will include training on transgender issues.

Source: Pittsburgh Post-Gazette, 8/10/15, By  Elizabeth Miles

[Editor’s Note: Gloucester County Public Schools in Virginia is one of the districts where the issue of transgender students’ restroom use is being litigated. In July 2015, Legal Clips summarized an article in the Daily Press reporting that U.S. District Court Judge Robert G. Doumar said, during a hearing on a motion for a preliminary hearing, that it was “highly unlikely” he would grant the motion. Plaintiff Gavin Grimm, a transgender student, brought suit against Gloucester County Public Schools (GCPS) alleging that the school is discriminating against him by denying him access to the boys restroom. Grimm filed the motion asking the judge to order GCPS to allow him to use the boys restrooms until a decision on the merits of his claims. 

Also in July 2015, Legal Clips summarized an Associated Press article in Crain’s New York Business reporting that the New York State Education Department (NYSED) had issued guidance on accommodating transgender students, according to an Associated Press (AP) report in Crain’s New York Business. The guidance draws from real-life situations, addressing issues like students’ use of restrooms and changing spaces and which pronouns to use. The purpose of the guide is to help districts create a safe and inclusive environment and comply with laws covering bullying, harassment, discrimination and student privacy.]

Environmental group and alumni association give notice they may file suit over rebuilding of school on toxic waste site

According to The Times-Picayune, the Sierra Club and the Walter L. Cohen Alumni Association have put the Louisiana Recovery School District (LRSD) and the Orleans Parish School Board (OPSB) on notice that they may sue over rebuilding Booker T. Washington High School on a toxic waste site. The notice is required before filing the lawsuit in federal court.

LRSD is rebuilding the school on its original site, part of the Silver City dump next to the B.W. Cooper public housing development. The Orleans Parish School Board owns the site and building.

Attorney Monique Harden contends the two school districts have begun illegally digging up the property without sufficiently protecting workers and neighbors or determining whether the site is hazardous under federal environmental law. The state’s analysis shows it contains heavy metals and cancer-causing chemicals.

The Sierra Club and the Walter L. Cohen Alumni Association contend the digging violates the federal Resource Conservation and Recovery Act. Penalties could amount to $37,500 per day per violation, according to the organizations’ statement.

The alumni association got involved because LRSD officials plan to close the Cohen building at 3520 Dryades Street and send those students to the new Washington campus. Association President Jim Raby said it was an act of racial injustice. Cohen has an almost entirely African American enrollment, as did Washington before it closed after sustaining severe damage in Hurricane Katrina.

Recovery officials have said they stand by the state Department of Environmental Quality’s remediation plan for the site.

Source: The Times-Picayune, 8/3/15, By Danielle Dreilinger

[Editor’s Note: In May 2015, Legal Clips summarized a story from ABC News 10 reporting that a class action lawsuit had been filed against Ametek Aerospace & Defense (AAD) on behalf of parents, students and teachers at Magnolia Elementary School (MES). Attorney John Fiske, of Gomez Trial Attorneys, who is  representing the plaintiffs, said, “They dumped up to 7,000 gallons of chlorinated solvent waste into the ground a month.” He added, “That waste has created the largest TCE plume underground in the state of California.”] 

Sua Sponte: NSBA and OSBA, along other national education groups, file amicus brief with the U.S. Supreme Court urging it to review and overturn Sixth Circuit’s erroneous decision denying mandatory reporters of child abuse and neglect qualified immunity from federal retaliation claims

On August 13, 2015, the National School Boards Association (NSBA) and the Ohio School Boards Association (OSBA), along with fifteen other national education groups, filed an amicus brief with the U.S. Supreme Court,in Schott v. Wenk, 15-54, asking the Court to review the U.S. Court of Appeals for the Sixth Circuit’s ruling that individuals designated mandatory reporters of suspected child abuse and neglect under state law may be liable for reporting such abuse based on a federal retaliation claim. The Sixth Circuit concluded that a statutorily mandated reporter of known or suspected child abuse was not entitled to qualified immunity from liability under section 1983 even though there was evidence in the record to support a reasonable basis to suspect abuse and the report was not materially false.

The NSBA/OSBA brief makes two main arguments asserting that the Supreme Court should hear the petition and overturn the Sixtth Circuit’s decision. First, it argues that the Sixth Circuit’s denial of qualified immunity to mandatory reporters who know of or reasonably suspect child abuse cripples longstanding public policy to protect children from abuse. It points out that federal policy directly  supports mandatory reporting of child abuse as essential to protecting children and contemplates immunity for good faith reporters. The brief also argues that consistent with the Child Abuse Protection and Treatment Act (CAPTA), all states encourage good faith reporting of child abuse through low reporting thresholds, statutory grants of immunity, and penalties for failure to report.

Second, the brief contends that the Sixth Circuit’s decision allowing constitutional retaliation claims against mandatory reporters of child abuse, even where a reasonable basis exists to suspect abuse, raises important questions under section 1983 that the Supreme Court must resolve. It argues that the Court’s review is crucial to establish the plaintiff’s burden to plead and prove absence of a reasonable basis in order to state a prima facie First Amendment retaliation claim based on a mandatory report of suspected abuse. In addition, NSBA/OSBA  contend that the Sixth Circuit’s denial of qualified immunity is erroneous and subjects mandatory reporters to the threat of burdensome litigation, thereby imperiling children suffering from ongoing neglect and abuse.

NSBA issued a press release announcing filing of the brief, in which NSBA Executive Director Thomas J. Gentzel said, “It is a societal obligation to establish policy that protects children from further abuse at the earliest point possible.” He added,  “Subjecting school personnel to federal claims of retaliation risks having a chilling effect on school officials’ good faith efforts to report suspected abuse.”

OSBA Executive Director Richard Lewis, commenting on the brief, said, “Teachers, employees, school authorities and other mandatory reporters should not fear being sued for their efforts to protect children in Ohio. We appreciate the opportunity to partner with NSBA on this important issue, and urge the Court to overturn the Sixth Circuit’s decision restoring the protections that allow school professionals to address suspected abuse.”

According to NSBA Associate Executive Director and General Counsel Francisco M. Negrόn, Jr., “The Sixth Circuit ruling will discourage reporters from notifying child protective services or law enforcement agencies except in the most obvious cases of abuse.” He continued,  “We urge the Court to again recognize as it did in Ohio v. Clark the unique role that school personnel play in protecting children by reporting suspected abuse, and reversing the shortsighted decision of the Sixth Circuit.”

In addition to NSBA and OSBA, American Association of School Administrators, American Professional Society on Abuse of Children, American School Counselors Association, Buckeye Association of School Administrators, Council of Administrators of Special Education, International Municipal Lawyers Association, National Association of Elementary School Principals, National Association of School Psychologists, National Association of Secondary School Principals, National Association of State Directors of Special Education, Ohio Association of School Business Officials, Ohio Educational Service Center Association, Ohio Federation of Teachers, School Social Workers of America Association, and Council for Exceptional Children joined the amicus brief.

Newspaper’s report finds Florida district’s schools have become increasingly resegregated since 2007, with schools in black neighborhoods suffering from academic failure

The Tampa Bay Times has published a report on Pinellas County School District (PCSD) finding that after the school district abandoned  integration at the end of 2007 the school board turned “five schools in the county’s black neighborhoods into some of the worst in Florida.” According to the report, all of the schools operate within six square miles in one of Florida’s most affluent counties.

Among the findings in the report:

■ 95% of black students tested at the schools are failing reading or math, making the black neighborhoods in southern Pinellas County the most concentrated site of academic failure in all of Florida.

■ Teacher turnover is a chronic problem, leaving some children to cycle through a dozen instructors in a single year. In 2014, more than half of the teachers in these schools asked for a transfer out.

■ All of this is a recent phenomenon. By December 2007, when the board ended integration, black students at the schools had posted gains on standardized tests in three of the four previous years. None of the schools was ranked lower than a C. Today, all the schools have F ratings.

■ After reshaping the schools, the district funded four of them erratically. Some years they got less money per student than other schools, including those in more affluent parts of the county. In 2009, the year after resegregation, at least 50 elementary schools got more money per student than Campbell Park.

■ Other districts with higher passing rates are doing far more to aid black students, including creating special offices to target minority achievement, tracking black students’ progress in real time and offering big bonuses to attract quality teachers to high-minority schools. Pinellas does none of those things.

The report also pointed out that overall, black children in Pinellas County are failing at higher rates than black children in virtually any other school district in Florida. In 2014, they were a third more likely to fail math than black children in Miami-Dade, Broward, Orange and Palm Beach counties. They were 23 percent more likely to fail math than black children in Hillsborough. Fifty-seven of 67 school districts in Florida recorded better reading scores, putting Pinellas in the same league as the poorest, most rural counties in the state.

PCSD Superintendent Mike Grego acknowledged the school district’s role in creating problems at the schools. “You can’t undo the past. You have to take the district from where it’s at,” Grego said. “I’m going on record saying we’re going to fix this. And we’re going to educate our students as if each one of them was our own kid.”

Source: Tampa Bay Times, 8/14/15, By Cara Fitzpatrick, Lisa Gartner and Michael LaForgia

[Editor’s Note: In March 2014, Legal Clips summarized an Associated Press story carried on ABC News that said a report from the Civil Rights Project at the University of California at Los Angeles (CRP-UCLA) had concluded that New York state has the most segregated public schools in the nation, with many black and Latino students attending schools with virtually no white classmates.  “In the 30 years I have been researching schools, New York state has consistently been one of the most segregated states in the nation — no Southern state comes close to New York,” said Gary Orfield, co-director of CRP-UCLA.] 

Parents’ suit claims Tennessee district withheld nursing services from diabetic student and retaliated against parents for complaining about it

The Knoxville News Sentinel reports that Melissa and Christopher Jennings, the parents of a diabetic student identified as G.J., have filed suit in federal court against the Anderson County Board of Education (ACBOE). The suit alleges the school district refused at the beginning of the last school year to follow a plan that required nursing services for the boy, who has Type 1 diabetes. In addition to ACBOE, schools director Larry Foster and former deputy director Leisa Fair were named as defendants.

According to the suit, there were constant changes in nurses at Norris Elementary School at the start of the 2013-2014 school year, and some nurses lacked training in the boy’s new device for injecting insulin called a Novopen Junior. The suit states: “G.J. was terrified to go to school because he did not know from one day to the next who the nurse would be, or whether that nurse would be able to operate the Novopen Junior properly.”

The parents’ attorney Bill Allen said that “the school refused to accept doctor orders that specified times to check blood glucose levels, monitor insulin administration, and inject glucagon in emergency situations.” He contends  that the school system’s refusal to follow a plan for G.J.’s treatment came after his parents filed a civil-rights complaint about the assignment and training of nurses at Norris Elementary.

Allen also noted that the parents have filed a U.S. Department of Justice complaint alleging discrimination against diabetic students “because it refuses to enact a policy that would allow volunteers at school to administer glucagon to students in emergencies when a nurse is not available.” He said state law allows such a practice, and most school districts have a policy in place “to protect diabetic students.”

The suit seeks an injunction to keep ACBOE from refusing to provide required services. It also asks for unspecified compensatory damages for lost wages and emotional distress incurred by the boy and his parents. In addition, it asks for punitive damages, also unspecified, against Foster and Fair.

Source: Knoxville News Sentinel, 8/14/2015, By Bob Fowler

[Editor’s Note: In April 2013, Legal Clips summarized a decision by a U.S. Court of Appeals for the Sixth Circuit three-judge panel in A.C. v. Shelby Cnty. Bd. of Educ. holding that the parents of a diabetic student had stated a valid claim for retaliation under the Americans with Disabilities Act (ADA) and § 504 of the Rehabilitation ACT (§ 504 ) based on the school’s Principal reporting the parents for suspected medical abuse of the student to the state department of child services (DCS) after the parents requested certain disability accommodations for the student.  In particular, it found, unlike the federal district court, that the parents had satisfied the adverse action and causation elements of a retaliation claim, and had rebutted as pretextual the non-retaliatory reasons for the DCS reports proffered by the school district.]

Religious advocacy group files suit against Nevada district on behalf of student who was prohibited from forming pro-life club at school

Angelique Clark, a student at West Career and Technical Academy (WCTA), has filed suit against Clark County School District (CCSD) and WCTA, says Live Action News, alleging that school officials are violating her First Amendment free speech rights by preventing her from forming a pro-life club at school. Clark is being represented by the Thomas More Society (TMS).

TMS’s Associate Counsel Jocelyn Floyd said, “High school administrators should not censor but rather encourage students to exercise their free speech rights. We hope that the court will quickly recognize the illegal and unconstitutional denial of Angelique’s Students for Life club and require West Career and Technical Academy to respect the rights of all its students under both the First Amendment and Equal Access Act.” Clark applied in December 2014 to form the club. WCTA Assistant Principal Allen Yee denied her application in February 2015.

Clark contends that during a meeting with Yee, he gave her a number of reasons for denying the application. Those reasons included: that abortion was “controversial,” that a pro-life club would make pro-choice people feel left out, and that there were others ‘more qualified’ to speak on the issue than a high school sophomore.” After the refusal, Clark sought help from  Students for Life of America (SFLA), an organization that supports students in their campus pro-life clubs.

SFLA’s attorneys and TMS then sent a demand letter to WCTA and CCSD “challenging the administrators’ denial of the club as a violation of the federal Equal Access Act and the First Amendment to the United States Constitution.” The letter demanded that CCSD amend its club policies and for the school to approve the Students for Life club.

The suit asks the court to “require West Career and Technical Academy to approve Angelique’s club immediately while the lawsuit proceeds toward a permanent resolution.”

Source: Live Action News, 8/14/15, By Susan Michelle

[Editor’s Note: TMS’s legal complaint on behalf of Clark contains five counts. Counts I-III present claims under the federal Equal Access Act. Counts IV-V present claims under the First Amendment’s Free Speech Clause. In April 2015, Legal Clips summarized an article in the Grand Forks Herald reporting that TMS had sent a letter to Fargo School District (FSD) Superintendent Jeff Schatz on behalf of two high school students alleging that FSD barred the students from forming anti-abortion clubs at their respective high schools. The letter states that Brigid O’Keefe of North High School and Katie McPherson of Davies High School were prevented from starting the clubs. The letter also asked the school district to reverse its decision and recognize the clubs.] 

Parent’s suit against California district claims district revoked children’s inter-district permits in retaliation for parent’s criticism of school officals

According to the Pasadena Star-News, Sarah Wu has filed suit against Alhambra Unified School District (AUSD) on behalf of her three children, Maia, Keeley and Collin, who had been attending school in AUSD on inter-district permits. The suit alleges AUSD violated due process and breached a contract when it revoked the permits. “(The children) did not have any history of disciplinary problems,” the lawsuit states.

AUSD revoked the Wu children’s permits in January 2014, but relented and allowed the Wus to return to Monterey Highlands School from March until June 2014, although they have since not been allowed to attend classes there. AUSD contends that one of the reasons for revoking the permits was because of Sarah Wu’s “attempt to undermine the authority of the principal by giving incomplete and/or false information to staff members.”

AUSD has responded to the Wus’ legal complaint, saying:

A revocation of a permit is not a ‘punishment’ as it is not a government entity penalizing a student, but rather, removing a privilege to which the student was never entitled in the first place. Moreover, there need not be a ‘crime’ or ‘misconduct’ committed by a student as a prerequisite to an inter-district permit revocation.

Source: Pasadena Star-News, 8/11/15, By Zen Vuong

[Editor’s Note: In June 2015, Legal Clips summarized an article in the Pasadena Star-News reporting that the American Civil Liberties Union of Southern California (ACLU-SoCal) was 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.”] 

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