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Alabama Student sent home for “Distracting hair color” challenges unexcused absence

WAFF.com reports that a student from Muscle Shoals High School was sent home on the first day of school because her hair color was deemed to be “too distracting.”

Hayleigh Black, who is sixteen, has been dyeing her hair the same red color for the last three years.  Hayleigh is an “A and B” student, a member of the marching band and has represented her school in various school events while donning red hair.  Yet, prior to the first day of this school year, no school administrator had said anything to her about the color of her hair. This includes the school district’s superintendent and assistant superintendent who served as administrators at Hayleigh’s school when she first dyed her hair.

Kim Boyd, Hayleigh’s mother, said that she was shocked to get a phone call telling her to pick Hayleigh up from school.   Boyd said that nothing was said last year about Hayleigh’s hair color.  Boyd said “I understand sending kids home for pink or purple or blue, but Hayleigh is red and he (the principal) argued that it is not a natural shade of red.”

Determining whether or not hair color violates the dress code section of Muscle Shoals High School Student handbook is up to the discretion of the school principal or assistant principal. Dr. Brian Lindsey, Muscle Shoals City Schools Superintendent, responded to the story by saying that he supports the school principal’s decision and that the dress code states that students will not be allowed to attend classes if their attire includes hair which has been dyed a bright or distracting color.

According to Dr. Lindsey, the handbook states that, “Dyed hair will be permitted only if the hair is dyed a natural human color.” He indicated that the high school administration had already sent four students home this school year because of their hair color.

Dr. Lindsey and Hayleigh’s mom have met about the issue and he advised that if Hayleigh wanted to return to school, she would need to dye her hair a darker red or go back to her natural color.

Even though Hayleigh was not happy about having to change her hair color, she wanted to return to school so that she could begin her sophomore year.  She tried stripping her hair, to get out all of the color, but it did not work completely.  It did, however, work well enough that the administration allowed Hayleigh to return to school.

Jon McGee, the family’s attorney, has now sent a formal letter to the school asking them to reconsider their decision to mark her absent for the day they sent her home. McGee has specifically asked for the absence to be marked as “excused.”  The family is concerned that the absence may interfere with possible exam exemptions and other school related issues later in the year.

According to the student handbook, students found to be out of compliance with the dress code will not be allowed to attend classes and will incur an unexcused absence.  McGee disputes those policies, saying that school leaders never had an issue with the color of Hayleigh Black’s hair until now.

McGee is requesting that the absence be expunged from Black’s record and that they allow her to change her hair color back to red.  If they cannot come to an agreement, McGee said that they have discussed steps to proceed with a federal lawsuit.

Source: WAFF.com, 8/12/14  By Marie Waxel

 [Editor’s note:  In February, 2012, Legal Clips summarized an article from the New  York Daily News, which reported about a  student at a Michigan charter school, who is  a cancer survivor and was growing out his hair to donate it to Locks of Love was suspended for a week for violating the Madison Academy’s dress code with hair that went past his ears. Locks of Love donates hair to make wigs for cancer patients.]

Ann Majestic, renowned Education Law attorney, has passed away

The News & Observer reports that Ann Majestic, the longtime attorney for the Wake County school board and a nationally recognized expert in Education Law, died this past Saturday after battling breast cancer. Funeral services are scheduled for this Wednesday.

During more than 30 years as an Education Law attorney, Majestic figured prominently in some of North Carolina’s most important legal disputes over education, including the Leandro school funding case and Wake County’s battles over student assignment. Majestic was the lead attorney in the Education Law section of Tharrington Smith, the Raleigh-based law firm whose clients include many of the state’s 115 school systems. A major client is the Wake County school system, where Majestic served as the school board’s attorney for more than 20 years.

Majestic was recognized locally in 1998, receiving the Distinguished Service Award of the North Carolina Bar Association for outstanding service to the Education Law section. On the national stage, Majestic was the chair of the National School Boards Association’s Council of Schools Attorneys (COSA) from 1998 to 1999. In 2012, she received COSA’s Lifetime Achievement Award.

Sonja H. Trainor, Director of the NSBA’s Council of Schools Attorneys, called Majestic “a pillar of the national school-law community” who mentored and befriended school attorneys across the country. “Ann had a unique and infectious combination of powerful advocacy and gentle grace,” Trainor said. “We valued her leadership on key areas of school law, including the landmark Leandro litigation in North Carolina. Her strong mind and kind character will be missed.”

Source:  News & Observer, 8/18/14, By T. Keung Hui

[Editor’s Note:  In an email message to COSA members announcing Ms. Majestic’s passing, the NSBA Office of General Counsel and Council of School Attorneys noted that she had been awarded COSA’s Lifetime Achievement Award in 2012 for her outstanding service to the school law community and her leadership in legal advocacy on behalf of public schools. “Ann was a respected leader in the school law community and a powerful advocate for public schools,” said NSBA General Counsel Francisco M. Negrón, Jr.  “We will miss her leadership, her intellect, her grace, and her kindness.”]

Parent sues Colorado district for denying re-enrollment of her special needs child at district-sponsored charter school

The Denver Post reports that Cheyenne Mountain School District 12 (CMSD12) and the Colorado Department of Education (CDE) are the targets of a federal lawsuit filed by the mother of an autistic student who was denied re-enrollment by a CMSD12-sponsored charter school. Ramona Smith is seeking tuition reimbursement for her son’s private school placement.

Robert Smith began attending Cheyenne Mountain Charter Academy (CMCA) in 2012. CMSD12 developed an individualized education plan (IEP) for him in November 2013, which was updated in 2014. The suit alleges that CMCA Executive Director Colin Mullaney notified the family that he was denying enrollment to Robert because his IEP required the charter school to hire additional staff.

The suit claims that pursuant to CMSD12 policy, it is the responsibility of the district to fund paraprofessionals to meet the special education needs of students. It also asserts CMSD12 has an automatic re-enrollment policy for students in good standing and there are no exceptions for special education students.

The mother filed a due process complaint with CDE in July 2014 arguing that the refusal of the charter school to accept her son was a violation of the federal “stay put” law. The suit says Smith received a response from CDE saying that the “stay put” provision did not apply and that the charter school and CMSD12 were not going to admit her son.

Source:  The Denver Post, 8/17/14, By Kirk Mitchell

[Editor’s Note: In May 2014, Legal Clips summarized a “Dear Colleague Letter” (DCL) issued by the U.S. Department of Education’s Office for Civil Rights, which contains guidance on the civil rights obligations of charter schools in areas such as school operations, recruiting, admissions, academics, and other areas. In regards to disabled students, the DCL states that charter schools must provide such students with a “free appropriate public education.” On the subject of admissions, the DCL warns that charter schools must avoid “admissions criteria that have the effect of excluding students on the basis of race, color, or national origin from school without proper justification, and they cannot bar students from admission on the basis of disabilities.”]

New Jersey district will not allow transgender student to return to school as a female

The Times Herald reports that Angela Peters, the mother of a transgender student, claims a Thorne Middle School (TMS) official told her that her daughter would not be allowed to return to school unless she dressed and acted as a male. Peters was told that no accommodations would be made and no out-of-district educational options would be available for her student.

Experts contend the TMS official’s decision violates state and federal anti-discrimination laws. However, the school district’s superintendent says the district will work with the family to find a resolution.

The student, Rachel Pepe, previously attended TMS as Brian. Peters says that her daughter [as Brian] developed stress-related seizures, depression, and panic attacks last year, and was bullied by other students because she was so quiet. According to Pepe and her mother, they came to the conclusion that Pepe could only return to school as a female.

Nonetheless, a TMS official informed Peters that the school was not equipped to handle a transgender student. Peters contends the school rejected her suggestion that Pepe be allowed to use the bathroom in the nurse’s office. She also claims school officials said they could not call her child Rachel because her birth certificate says Brian. In addition, Peters claims TMS officials told her that allowing Pepe to return as female would upset the boy-girl ratio in school and standardized tests require the legal name and gender. 

District officials now say they are willing to work with the family to come up with a solution.  Without addressing details, Superintendent William O. George said, “We as a district want to do everything we can as a district.” “Every child is different and their education and social and emotional well being is my priority. We will work with them to find the appropriate placement.” George stated that “children with psycho-sexual issues often benefit from a fresh start at a new school.”

Source:  The Times Herald, 8/16/14, By Carol Gorga Williams (Asbury Park Press)

[Editor’s Note: Even when a school district makes the decision to accommodate a student dealing with gender identity issues, there can be backlash. In July 2014, Legal Clips summarized an article in The Courier-Journal, which reported that a group of Kentucky parents and community members had appealed Atherton High School’s new policy that allows students to use the restroom and locker room that aligns with their sexual identity. Atherton’s site-based decision-making council will be meeting soon to discuss the appeal, which was submitted in writing by Clinton Elliott, a Louisville attorney with the Christian-based legal group Alliance Defending Freedom.]

Colorado Attorney General seeks dismissal of school funding formula lawsuit

As reported on co.chalkbeat.org, Colorado Attorney General John Suthers has formally asked for dismissal of the lawsuit challenging the “negative factor” used by the legislature to set annual K-12 public school funding.

“Amendment 23 expressly requires the public school finance formula’s statewide base per pupil funding amount to at least keep pace annually with the rate of inflation. By its plain terms, Amendment 23 does not extend to overall state education funding as plaintiffs claim,” Suthers wrote in a motion filed recently in Denver District Court.

The lawsuit, Dwyer v. State, was filed June 27 by a group of school districts and parents who claim the negative factor is unconstitutional. At issue is interpretation of Amendment 23, the 2000 constitutional provision that requires annual K-12 spending increases based on inflation.

In 2010, the legislature created the negative factor to control school spending as lawmakers continued to struggle with the overall state budget. The legal reasoning behind the negative factor is that A23 applies only to base per-student funding, not to additional funds districts receive to compensate for size, number of at-risk students, and other factors. The theoretical funding shortfall created by the negative factor is just under $1 billion.

The plaintiffs argue A23 should be applied to all school spending, but the state’s motion to dismiss emphatically disagrees.

“Amendment 23 does not refer to any other portion of the finance formula. It refers to the statewide base per pupil funding … leaving no question whatsoever that component of the finance formula — and that component only — must at least keep pace annually with the rate of inflation,” the motion reads.

Source:  co.chalkbeat.org, 8/15/14, By Todd Engdahl

[Editor’s Note:  In July 2013, Legal Clips summarized a report by Colorado Public Radio, which stated that a group of educators, parents, and school districts had filed suit against Colorado seeking to enforce Amendment 23, a voter approved referendum that requires the state to meet its in 1988 funding levels for public schools. Amendment 23, which went into effect in 2000, required, at a minimum, that the state gradually catch up to 1988 funding levels and then hold steady, even in times of economic downturn.

In May 2013, Legal Clips summarized an article in The Denver Post, which reported that the Colorado Supreme Court, in a 4-2 vote, had found the state’s system of funding public schools to be constitutional. It overturned the trial court’s decision that the state’s funding system failed to provide a constitutionally mandated “thorough and uniform” system of public education. The supreme court’s six justice majority concluded that the current finance system was, in fact, “rationally related” to the thorough and uniform standard.]

Washington supreme court to review case on charter school law

As reported by the Associated Press (AP) in Education Week, the Washington Supreme Court recently announced it would consider whether a voter-approved charter school law violates the state constitution. King County Superior Court Judge Jean Rietschel found in December 2013 that parts of the new law were unconstitutional.

The decision focused on whether certain taxpayer dollars can be used to pay for the operation of charter schools. Both sides asked the state Supreme Court to skip the appeals court process and directly review the case.

“We have always believed that the Supreme Court would be where we’d end up,” said attorney Paul Lawrence, who represented the coalition that brought the lawsuit.

The arguments will focus on the part of the lawsuit concerning whether charter schools meet the state definition of a “common school” and whether they are eligible for dollars set aside for those schools, Lawrence said. That was not the main focus of arguments at the trial court level.

The coalition that brought the lawsuit included the state teachers’ union, a group of Washington school administrators, the League of Women Voters, El Centro de la Raza and several parents, children, and school advocates.

The state’s charter school system was approved by voters in 2012. The first charter school — First Place Scholars in Seattle — is scheduled to open in a few weeks. Reitschel’s 2013 decision has not stopped the charter school approval or planning process, since she ruled that only one part of the law violates the state constitution.

Oral arguments concerning the lawsuit brought by charter school opponents have been scheduled for Oct. 28.

Source:  Education Week, 8/18/14, By AP

[Editor’s Note:  In September 2013, Legal Clips summarized an article in The Tennessean, which reported that Tennessee Attorney General (AG) Robert Cooper said the state’s charter school law did not impose financial burdens on local school districts in violation of the state constitution. However, the AG’s opinion was at odds with one issued by a Metro Nashville Public Schools attorney, which said that the state’s failure to offset such costs was unconstitutional. Cooper’s opinion defended the constitutionality of the 2002 law that set the funding mechanism for publicly financed, privately- led charters.]

OCR investigating claims of race discrimination in Chicago’s south side schools

According to the Chicago Sun-Times, activists fighting to keep open two Bronzeville Chicago public schools slated for closure are applauding the United States Department of Education Office for Civil Rights’ (OCR) decision earlier this month to investigate those planned closings.

“It’s a major first step,” said Jeanette Wilson, senior advisor to the Rev. Jesse Jackson, speaking at Rainbow Push Coalition headquarters Tuesday. “The fact that they are going to look into it at all says that some of the practices that have been accepted as normal and appropriate are now being questioned.”

Earlier this year, activists filed a civil rights complaint alleging students at the predominantly African American Dyett High School and Mollison Elementary School are facing discrimination. The group alleged, among other things, that Mollison is overcrowded and understaffed, while kids at Dyett are being unfairly denied art education and physical education — among other things.

OCR announced on Aug. 6 that it plans to investigate.

“Because OCR has determined that it has jurisdiction and that the allegations were filed timely, it is opening them for investigation,” wrote Aleeza Strubel, supervisory attorney with the civil rights’ office. “Please note that opening the allegations for investigation in no way implies that OCR has made a determination with regard to their merit.”

Source:  Chicago Sun-Times, 8/12/14, By Stefano Esposito

[Editor’s Note:  In July 2014, Legal Clips summarized a decision by a D.C. federal district court in Smith v. Henderson, which dismissed a suit claiming that D.C. Public Schools’ school closure plan violated minority parents’ and students’ Fifth Amendment equal protection rights and civil rights under Title VI of the Civil Rights Act because the decision to close schools was made on the basis of race. The court concluded that some of the issues raised by the plaintiffs were policy questions, which are political in nature and not susceptible to legal resolution. Regarding the school closure policy, it found there was no evidence that the policy was applied in a racially discriminatory manner.]

Delaware court rules teacher and district are not entitled to governmental immunity from student’s negligence/gross negligence suit

Jordan v. Indian River Sch. Dist., No. S14C-02-036 RFS (Del. Super. Ct. July 31, 2014)

Abstract: A Sussex County Superior Court has ruled that a student stated a valid cause of action for negligence and/or gross negligence against a teacher and the Indian River School District (IRSD) because a teacher’s duty to provide due care for the safety of her students is a ministerial act. The court rejected the Defendants’ assertion of governmental immunity from the suit under Delaware’s State Tort Claims Act (STCA) because immunity is only available if the act was discretionary.

Facts/Issues:  In October 2012, Nina Jordan, a student at IRSD’s Southern Delaware School of the Arts, “competed” in an experiment in teacher Lisa McVey’s class that involved recreating the conditions involved in the sinking of the Titanic. The experiment consisted of placing a hand up to the mid-forearm in ice water for as long as one was able to withstand the cold temperature. Jordan held her right hand and arm in the ice water for approximately forty minutes. Upon removing her hand from the water, she noticed numbness and tingling, as well as a lack of sensation in the hand. As a result of lengthy exposure to the cold water, Jordan claims she suffered “serious and permanent injuries to her right upper extremity.”

Consequently, Jordan filed suit against McVey and IRSD for damages for the personal injuries she claims to have suffered. Her suit alleges “the experiment was ill-advised and not properly supervised by Defendant McVey.” Jordan contends that McVey’s actions constitute gross or wanton negligence. The legal complaint states that “[McVey] had the students engage in a competitive project that had the obvious potential to cause injury – namely, immersing one’s appendage in ice cold water.” McVey then allegedly “compounded this gross error in judgment by failing to supervise the students’ efforts.” Jordan argues that “McVey was aware of the obvious and substantial risk of prolonged exposure to low temperatures, and consciously disregarded it by failing to monitor the competition.”

The Defendants filed a motion to dismiss Jordan’s complaint, arguing that “the allegations set forth in the Complaint are conclusory and lack factual support.” They assert Jordan failed to sufficiently plead facts “demonstrating any gross negligence.” The Defendants insist Jordan failed “to set forth any facts to support their claim that Defendants’ conduct was an extreme departure from the ordinary standard of care.” The Defendants also argue that “their actions in conducting the experiment were discretionary and performed in good faith.”  According to the Defendants, “Decisions of teachers in managing classrooms are discretionary, and therefore protected [by governmental immunity] under the STCA.”

Ruling/Rationale: The Superior Court denied the Defendants’ motion to dismiss, which raised two issues involving Delaware’s STCA: (1) whether the Defendants acted without negligence and/or gross negligence; and (2) whether the Defendants’ actions were ministerial or discretionary.

Turning first to the issue of negligence and/or gross negligence, the court determined that there was “an obvious safety risk to students participating in the experiment,” if the facts as set forth were true. As a result, it concluded that the Defendants had not met their burden of demonstrating that Jordan had failed “to establish Defendants were aware of some substantial and unjustifiable risk associated with conducting the experiment.” The court also pointed out that “a teacher owes a heightened duty when involving students in a hazardous activity,” such as protecting them from engaging in a dangerous undertaking, like keeping an arm immersed in freezing water for an unreasonable length of time, simply for the hope of a prize.

The Superior Court next took up the issue of whether to characterize the Defendants’ actions as ministerial or discretionary. It pointed out that immunity under the STCA is only available for discretionary acts. While acknowledging whether an act is ministerial or discretionary is normally a question of law, the court specifically stated that it is “well-settled Delaware law [that] a teacher has a duty to exercise due care to provide for the safety of his or her students and to protect those students.” In its analysis, the court noted “[t]he duty to supervise students’ activities may, however, be deemed ministerial or discretionary depending on the facts.” It emphasized, however, “a teacher does not have the discretion to decide whether or not to exercise due care for the safety of her students.”

The court stated that in the present case, the Defendants could be held liable for either: “a ministerial act done with negligence” or “a discretionary act done with gross negligence.” It also reiterated that Jordan’s legal complaint adequately pleaded negligence and/or gross negligence. Given these two facts, the court concluded that the Defendants’ attempt to assert immunity under the STCA was unwarranted, because McVey’s decision as to whether to “exercise due care for the safety of her students” was not discretionary. Because it found that the Defendants ignored the “blatant and obvious risk” of having students immerse their arms in freezing water, the Superior Court declared that the Defendants “cannot sidestep the apparent issues of negligence and gross negligence by simply claiming their actions were discretionary.”

Jordan v. Indian River Sch. Dist., No. S14C-02-036 RFS (Del. Super. Ct. July 31, 2014)

[Editor’s Note: In July 2014, Legal Clips summarized a panel decision by an Indiana Court of Appeals in Metropolitan Sch. Dist. of Martinsville v. Jackson, which upheld the trial court’s ruling denying the school district’s motion for summary judgment. The panel concluded the district was not entitled to immunity from suit under the Indiana Tort Claims Act (ITCA) because the actions alleged to form the basis of the negligence claims were not discretionary functions. It also rejected the school district’s contention that the plaintiffs had failed to allege sufficient facts to raise a material question of fact for the jury on the issue of breach of duty. Lastly, the panel rejected the district’s assertion that one of the plaintiff’s negligence claims was barred by the affirmative defense of contributory negligence as a matter of law. Instead, it found that the question of contributory negligence was best left to a jury to decide.]

New Jersey district settles suit with student disciplined for profane off-campus tweet about principal

The South Jersey Times reports that the Sterling High School District (SHSD) has settled a lawsuit brought by a Sterling High School (SHS) student disciplined for tweeting profane comments about SHS’ principal. SHSD agreed to pay the student, identified as H.W., $9,000 for legal fees and clarify the school district’s policy on social media monitoring. SHSD also agreed to rescind its ban on her participating in the senior trip and expunge her record.

H.W.’s suit claimed her First Amendment rights were violated when SHSD district allegedly checked her Twitter account and then disciplined her for “purely off-campus speech” in which she called her principal a name in a tweet to her friends. The suit alleged that she was disciplined for that specific comment, and not for another tweet about smoking before school, which she said SHSD would likely allege was the reason for punishment. H.W.’s punishment included being banned from attending the senior prom, the senior class trip, and from walking during graduation.

In addition to the free speech claim, H.W. charged that SHSD discriminated against her because of her disabilities, including Oppositional Defiant Disorder (ODD) and bipolar disorder, which caused her to say the things that she did. According to her lawsuit, ODD is characterized by “oppositional behavior and difficulty with authority.”

SHSD also agreed, as part of the settlement, to modify its student handbook to include that administrators “may be monitoring student discussions on Facebook, Twitter or other social media outlets and may seek to impose penalties in accordance with the student code of conduct if such discussions cause a substantial disruption at the school.”

Source:  South Jersey Times, 8/13/14, By Jessica Beym

[Editor’s Note: In March 2014, Legal Clips summarized an article in the New Jersey Law Journal reporting on the filing of H.W.’s suit. The article stated that her lawsuit emphasized that her profane commentary was a consequence of her psychological disorder, which causes her to have “dramatic mood swings” and “difficulty with authority.”

Students being disciplined for posts on social media are occurring more and more, as school districts grapple with how to handle off-campus student conduct. In February 2014, Legal Clips summarized an article in the Boston Daily, which reported that after North Attleboro High School (NAHS) sent out a message via the school’s official twitter account notifying students that school was cancelled due to snow that ended with “See you in June!,” senior Nick Barbieri responded with a profane tweet saying “[expletive] off.” Barbieri’s F-word laced tweet earned him a call from school officials demanding he delete the tweet.

In July 2013, Legal Clips summarized a decision by a Nevada federal district court in Rosario v. Clark Cnty. Sch. Dist., which denied the school district’s motion to dismiss a student’s claim that the discipline he received because of off-campus tweets violated his First Amendment right of free speech. The court acknowledged that while courts have found that school officials can discipline students for off-campus speech on social media websites, the ability of officials to impose punishment depends on the facts.]

Secular group warns Georgia high school’s football coaches to stop sharing prayer and Bible verses with players or face lawsuit

The Blaze reports that the American Humanist Association’s (AHA) Appignani Humanist Legal Center, a secular legal firm, has sent a letter to Hall County School District (HCSD) officials warning that AHA will file a lawsuit if football coaches at Chestatee High School (CHS) do not end their practice of sharing prayer and Bible scriptures with players and placing those prayers and scriptures on official team stationary. AHA’s letter states:

We have been informed that the school’s football coaches have been using their position to promote Christianity on the football team by integrating Bible verses into functional team documents and team promotions in various ways. Meanwhile, they have been either leading the team in prayer or participating in team prayers on a regular basis.

CHS, a public high school in Georgia, caught the attention of AHA’s Appignani Humanist Legal Center after activists indicated that they had learned of some specific religious activities being undertaken by the public school officials. AHA contends that the school’s football coaches are using their positions to promote Christianity which amounts to a violation of the Establishment Clause of the First Amendment. The letter demands that football coaches cease the “unconstitutional activity” immediately, noting that a lawsuit could be filed against the district for violating the Establishment Clause.

A HCSD spokesman said that the district officials are investigating whether AHA’s allegations have merit. HCSD Superintendent Will Schofield said that  personnel should not be leading prayer, but that students’ right to invoke God should and will be protected.

Source: The Blaze, 8/13/14, By Billy Hallowell

[Editor’s Note: The Appignani Humanist Legal Center’s letter cites a number of U.S. Supreme Court cases in the Court’s long line of Establishment Clause jurisprudence to support its contention that the CHS football coaches’ religious practices are obliterating the separation of church and state. The letter says, “Where, as here, a teacher or coach leads or participates in prayer with students, the prayers are school-sponsored and thus prohibited by the Establishment Clause.”

AHA has been involved in a number of suits litigating the limits of religion in schools. Most recently, an August 2014 summary by Legal Clips of an article in The Daily Journal reported on AHA’s participation in a lawsuit against the Matawan-Aberdeen Regional School District in New Jersey over the inclusion of the phrase “under God” in the Pledge of Allegiance.]

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