NSBA Legal Clips
Latest Entries

Student’s suit alleges Mississippi district expelled him for online posting of nude photo of classmate

The Clarion-Ledger reports that the parents of a ninth grade student, identified as J.B., who attended Germantown High School (GHS), have filed suit against Madison County Schools (MCS) alleging that the school district violated J.B.’s free speech rights and deprived him of an education. J.B. was expelled from GHS for a year and transferred to an alternative school after posting a nude photo of a female student he had received on his cell phone.

The suit alleges that J.B. received a nude photograph of a female student who had sent the photo to one or more other students at the school. J.B. then reportedly created an Instagram account entitled “Germantown Whores” to which he posted a copy of the nude photograph while at school the following day. When GHS officials discovered J.B. had created the page, he was expelled from school for one year and placed at Madison County’s alternative school.

According to the parents’ attorney, John Christopher, “The parents and child’s concern is that he’s not getting the same level of education he would have gotten had he been able to stay at Germantown.” The parents are asking for a total of $400,000 in damages plus attorney’s fees. The damages are for the alleged negative impact that being placed in an alternative school will have on J.B.’s education.

The suit also claims that the posting of the photo “was not specifically prohibited by school board policies nor was it listed in the student handbook as being an offense for which a student could be disciplined.”

Responding to news of the suit, MCS Superintendent Dr. Ronnie McGehee said, “We will defend the district’s actions and we feel like our actions were appropriate.”

The Mississippi Attorney General’s office has issued a press release indicating that a trend of fake Instagram accounts, posting inappropriate pictures of local young girls, is apparently occurring in central Mississippi. Those involved with fake Instagram accounts could potentially be charged with several different crimes, including bullying or harassing behavior in public schools and obscene electronic communications.

Madison/Rankin County District Attorney Michael Guest said that J.B.’s case falls under the exploitation of a child statute. Since J.B. is under 18 years old, he would be prosecuted in youth court if charges were filed against him and any records of the proceedings in youth court would be sealed.

Attorney General Jim Hood notes that anyone – whether a minor or adult – who transmits an inappropriate photo of a minor can be charged with a felony. Hood’s office makes prevention and education a priority in middle and high schools. “The problem with this is it’s a felony. It’s the same statute we prosecute perverts under for child porn,” Hood said, noting the crime carries a minimum sentence of 5 years and a maximum of 40.

Source: The Clarion-Ledger, 9/23/14, By Kate Royals

[Editor’s Note: In January 2013, Legal Clips summarized an article in the Huffington Post indicating that DeAnn Cooks, the mother of an Oklahoma teen, had filed suit against Twitter, the Tulsa Public Schools (TPS), and others for a half-naked photo of her daughter that was posted online. The incident, the mother claims, subjected her daughter to severe taunting and physical harassment at school. Cooks says in the lawsuit that her daughter, identified only as S.C., was changing out of her uniform following a basketball game in November 2011 when a teammate grabbed her and restrained her so that a second teammate could take photos of S.C. in her underwear. The students, who attend Booker T. Washington High School, later posted the picture to Twitter, where the image was retweeted “numerous” times, according to the suit.

In June 2011, Legal Clips summarized and an Associated Press article reported that Rhode Island had joined 20 other states considering bills to adjust penalties for teen sexting. California lawmakers were also considering legislation that would enable schools to expel students caught sexting. Florida lawmakers voted to punish teen sexting with a $60 fine and community service. Legislation  was introduced in New York that would allow judges to send teens who send explicit photos to counseling instead of jail if prosecutors agree that they meant no harm.] 



Ninth Circuit denies rehearing and rehearing en banc in Cinco de Mayo American flag ban suit; three-judge panel issues amended opinion upholding district’s ban

Dariano v. Morgan Hill Unified Sch. Dist., No. 11-17858 (9th Cir. Sept. 17, 2014)

Abstract:  The U.S. Court of Appeals for the Ninth Circuit, sitting en banc (all active judges in the circuit participating), denied the petition for a panel rehearing and rehearing en banc, and ordered that no further petitions be permitted. The three-judge panel issued an opinion amending its opinion filed on February 27, 2014. The panel held that school officials had not violated students’ free expression, due process, or equal protection rights by prohibiting them from displaying the American flag at school on Cinco de Mayo because such displays might provoke ethnic based violence.

The panel acknowledged that school officials’ decision to restrict the students’ speech gave rise to concerns  about a “heckler’s veto.” However, it found, based on a prior history of racial/ethnic tensions on campus, that officials could reasonably forecast violent disturbance if they allowed students to display the American flag. As a result, the panel concluded that school officials’ decision was consistent with constitutional requirements under the “substantial disruption” standard espoused in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

Judge O’Scannlain, joined by Judges Tallman and Bea, dissented from the denial of a hearing en banc. The dissent argued that restricting student speech based on the reaction of other students “is not a legitimate basis for suppressing student speech absent a showing that the speech in question constitutes fighting words, a true threat, incitement to imminent lawless action, or other speech outside the First Amendment’s protection.”

Facts/Issues: Live Oak High School held a Cinco de Mayo celebration on May 5, 2010, presented in the “spirit of cultural appreciation.” It was described as honoring “the pride and community strength of the Mexican people who settled this valley and who continue to work here.”  The school had a history of violence among students, including racial violence.  At least thirty fights, both between gangs and between Caucasian and Hispanic students, had occurred in the previous six years.  A police officer is stationed on campus every day to ensure safety on school grounds. At the previous year’s Cinco de Mayo celebration, Caucasian and Mexican students yelled threats and obscenities at each other after an American flag was displayed, and the school administration had to intervene.

On Cinco de Mayo 2010, three Caucasian students wore T-shirts depicting the American flag. Some students warned the administrators that the shirts might cause trouble and the students might be in danger. Assistant Principal Miquel Rodriguez instructed the three students to either remove the shirts or turn them inside-out so that the flags would not be visible. The students refused both options. Rodriquez told the students that he was concerned for their safety, a point the students did not dispute. All three students said they wanted to wear the shirts and bear the risk of violence against them. One student was permitted to wear his shirt because principal Nick Boden thought its logo was benign and would not receive attention.

The other two students were told again to remove the shirts or to turn them inside-out, or that they could be suspended.  When they again refused either option, the administrators sent them home for the day with excused absences. Neither student was disciplined. Both students received threatening messages at home and by text over the next couple days, and their parents kept them home from school out of concern for their safety.

Assistant principal Rodriguez and principal Nick Boden based their decision “on anticipated disruption, violence, and concerns about student safety in conversations with students at the time of the events, in conversations the same day with the students and their parents, and in a memorandum and press release circulated the next day.”

The parents filed suit in federal district court on behalf of their children and in their own right against the Morgan Hill Unified School District (MHUSD), Rodriguez and Boden. The suit alleged violations of the students’ federal constitutional rights to free speech, due process and equal protection, and their state constitutional right to free speech. The district court granted Rodriguez’s motion for summary judgment. The claims against Boden were stayed because he had filed for bankruptcy. The court also dismissed all of the claims against MHUSD based on sovereign immunity under the Eleventh Amendment.  The parents only appealed the ruling as to the claims against Rodriquez.

Amended Panel Opinion: The “heckler’s veto” doctrine stands for the proposition that government cannot silence a speaker just because of how an audience might react to the speech. The panel addressed the doctrine by indicating that in the school context, the crucial distinction is the nature of the speech, not the source of it. According to the panel, the cases do not distinguish between “substantial disruption” caused by the speaker and “substantial disruption” caused by the reactions of onlookers or a combination of circumstances. It concluded that an argument based on the doctrine “might be effective outside the school context, but it ignores the “special characteristics of the school environment,” and that the court “ha[d] not found case law holding that school officials’ ability to limit disruptive expression depends on the blameworthiness of the speaker.”

Instead, the panel found that the focus of Tinker is on the “school’s need to protect its learning environment and its students, and courts generally inquire only whether the potential for substantial disruption is genuine.” It found that the student speech/expression cases involving Confederate flag displays are illustrative of the principle “that what matters is substantial disruption or a reasonable forecast of substantial disruption, taking into account either the behavior of a speaker—e.g., causing substantial disruption alongside the silent or passive wearing of an emblem—or the reactions of onlookers.”

Dissenting Opinion: According to the dissent, the panel’s opinion missed the mark because it ignored the fact that Tinker reaffirmed “the heckler’s veto” doctrine. Referring to Ninth Circuit student speech jurisprudence, the dissent said, “Our precedents take the position, then, that far from abandoning the heckler’s veto doctrine in public schools, Tinker stands as a dramatic reaffirmation of it.”

Acknowledging that the heckler’s veto doctrine does not apply to all categories of speech, such as fighting words, a true threat, or incitement to imminent lawless action, the dissent emphasized that excluding those few exceptions, government officials are not permitted to use an audience’s negative reaction as a basis for suppressing speech.

The dissent warned that such a misinterpretation of Tinker to allow the heckler’s veto “sends a clear message to public school students: by threatening violence against those with whom you disagree, you can enlist the power of the State to silence them.”  It concluded that “by interpreting Tinker to permit the heckler’s veto, the panel opens the door to the suppression of any viewpoint opposed by a vocal and violent band of students.”

The dissent rejected the panel’s insistence that other federal circuits “do not distinguish between ‘substantial disruption’ caused by the speaker and ‘substantial disruption’ caused by the reaction of onlookers.”  It pointed out that both the Seventh and Eleventh Circuits hold that  “a student’s speech cannot be suppressed based on the violent reaction of its audience.”  The dissent, citing  Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004), stated that the Eleventh Circuit “squarely rejected the claim that the heckler’s veto doctrine does not apply in public schools.”

Finally, the dissent took issue with the panel analogizing the present case with those involving restrictions on Confederate flag displays. In particular, it rejected the argument that such cases illustrate the “principle” that the heckler’s veto does not apply to public schools. Instead, it read those cases as illustrating “a permissive attitude towards regulation of the Confederate flag that is based on the flag’s unique and racially divisive history.”

The dissent concluded that “The panel’s opinion contravenes foundational First Amendment principles, creates a split with the Seventh and Eleventh Circuits, and imperils minority viewpoints of all kinds.”

Dariano v. Morgan Hill Unified Sch. Dist., No. 11-17858 (9th Cir. Sept. 17, 2014)

[Editor’s Note: In March 2014, Legal Clips summarized the panel’s previous opinion in Dariano v. MHUSD which held that the high school’s assistant principal did not violate students’ free speech rights when he prohibited them from wearing clothing bearing the image of the American flag on the day the school was celebrating the Mexican holiday of Cinco de Mayo.  It also concluded  that the assistant principal’s action did not violate the students’ equal protection or due process rights.

Relying on Tinker, the panel concluded that the school administrator’s actions were justified because, based on the circumstances, he could reasonably forecast a substantial disruption caused by the wearing of the American flag. It also employed the Tinker “substantial disruption” standard in rejecting the equal protection and due process claims.]



Sua Sponte: GAO issues special education report on the use of mediation and resolution to reduce number of due process hearings

The Government Accountability Office (GAO) has issued a report on special education titled Improved Performance Measures Could Enhance Oversight of Dispute Resolution. States receiving IDEA funds must ensure that a free and appropriate public education is made available to all children with disabilities. The IDEA has long incorporated formal methods to resolve disputes between parents and school districts. The 2004 reauthorization of the IDEA expanded the availability of alternative dispute resolution by broadening the use of voluntary mediation and requiring resolution meetings prior to due process hearings. GAO was asked to examine the use of dispute resolution methods since 2004.

According to the GAO report, from 2004-2012, the number of special education due process hearings substantially decreased nationwide as a result of steep declines in New York, Puerto Rico and the District of Columbia. Officials in these locations attributed these declines to the use of mediation and resolution meetings, which are meetings that the IDEA has required states to implement since 2004.

In this report GAO (1) examined recent trends in dispute resolution methods, (2) reports stakeholders’ views on alternative methods, and (3) assesses the Department of Education’s (Education) related performance measures for states. GAO analyzed federal dispute resolution data from 2004 to 2012, conducted a national survey, compared Education’s performance measures to leading practices, and interviewed Education officials and stakeholders selected for their knowledge of dispute resolution.

GAO’s survey found that states and territories used mediation, resolution meetings, and other methods, they voluntarily implemented, to facilitate early resolution of disputes and to avoid potentially adversarial due process hearings. Survey participants said that alternative methods are important to resolving disputes earlier. Some stakeholders cited the potential of these methods to improve communication and trust between parents and educators. Some state officials said that a lack of public awareness about the methods they have voluntarily implemented was a challenge to expanding their use, but they were addressing this with various kinds of outreach, such as disseminating information through parent organizations.

GAO recommends that Education improve measures for overseeing states’ dispute resolution performance, including more transparent data on due process hearing decisions and comparable parental involvement data. Education neither agreed nor disagreed with the recommendations and proposed alternative actions. GAO does not believe these proposals will address the weaknesses in Education’s performance measures and continues to believe that its recommendations remain valid.

The GAO Hightlights of GAO 14-390 provides a brief summary of the report.

Florida court dismisses teachers union suit challenging law expanding state’s voucher program

The Miami Herald reports that Leon County Circuit Court Judge Charles Francis has dismissed a suit, brought by the Florida Education Association (FEA), challenging recently enacted legislation expanding the state voucher program and creating new scholarships for children with disabilities. The suit claimed that the law violates a state constitutional requirement that each law be limited to a single subject.

Judge Francis held that the teacher named as the plaintiff did not have legal standing to bring the lawsuit. The judge found that the teacher would have had to have demonstrated that he had been harmed by the voucher expansion law.

FEA Vice President Joanne McCall expressed disappointment over the ruling, saying, “We wish the judge had taken up the merits of the case, because it’s clear that the legislature overstepped its authority in passing this legislation.” FEA attorney Ron Meyer said that he and union leaders are still determining whether to amend the complaint and file it again.

The Florida school voucher program provides private school scholarships to more than 60,000 low-income students across the state. The scholarships are funded by businesses that receive dollar-for-dollar tax credits in exchange for their contributions. Earlier this year, the state legislature passed legislation increasing the amount of the scholarship and creating partial scholarships for children whose parents earn up to $62,010. It also created Personal Learning Scholarship Accounts for children with special needs to spend on private tutoring, therapy and educational materials.

FEA still has a separate school voucher lawsuit pending. That complaint contends that the voucher program conflicts with the state’s duty to provide a “uniform, efficient, safe, secure and high quality system of free public schools.”

Source: Miami Herald, 9/24/14, By Kathleen McGrory

[Editor’s Note: In July 2014, Legal Clips summarized an article in The Orlando Sentinel providing details on FEA’s suit charging that the voucher expansion law violates the state constitution’s single-subject requirement for bills.

In September 2014, Legal Clips summarized an article in The Orlando Sentinel reporting that a coalition of public school advocates led by the FEA, which includes the Florida School Boards Association and the Florida PTA, had brought suit against Florida alleging that the Tax-Credit Scholarship Program ( TCSP) violates the state’s constitution because it redirects taxpayer money to religious schools and creates a separate system of state funded schools.] 

Third Circuit rejects African-American students’ Title VI claim that they were intentionally targeted for placement in special education on the basis of race

Blunt v. Lower Merion Sch. Dist., Nos. 11-4200/11-4201/11-4315 (3d Cir. Sept. 12, 2014) Abstract:  A U.S. Court of Appeals for the Third Circuit three-judge panel, in a 2-1 split, has upheld summary judgment granted to Lower Merion School District, and other defendants, for discrimination in violation of Title VI and 42 U.S.C. § 1983. The court ruled that the plaintiffs, a group of current and former African-American students, failed to produce sufficient evidence to support their claims that the school district, in identifying African-American students as disabled and placing them in special education classes based on their race, intentionally discriminated against the students or was deliberately indifferent to intentional discrimination exercised by employees or third parties.

Although the panel’s opinion also decided issues involving res judicata (claim preclusion), standing, the statute of limitations for the Individuals with Disabilities Education Act (IDEA) and questions about whether the lower court abused its discretion in ruling on evidentiary matters, this summary is limited to the Title VI and § 1983 claims. In addition to the majority opinion, one judge wrote a concurring opinion and another judge wrote an opinion concurring in part and dissenting in part.

Facts/Issues: A group of African-American current and former students attending school in Lower Merion School District (LMSD) filed suit against LMSD and other defendants in a federal district court in Pennsylvania. They sought injunctive relief and compensatory damages. Although the students had brought claims under the IDEA, those claims were dismissed along with a number of others. The only claims that remained were the Title VI claim and the claim, under § 1983, which alleged violations of the Equal Protection Clause. LMSD filed a motion for summary judgment. In response to LMSD’s motion for summary judgment, the students argued that they were not disabled and were wrongly placed in special education programs based on their race. Although the district court acknowledged that the students’ assertions were a “stark” departure from their most recent amended complaint, which indicated that they were disabled, it assumed for purposes of the motion that all but two of the students were not disabled.

The students argued that as a result of their alleged wrongful and racially discriminatory identification as disabled, they were denied opportunities to take the more challenging courses in preparation for college. They relied heavily on statistical evidence of the disproportionate number of African-American students receiving special education services. The district court granted LMSD summary judgment. After reviewing the record, it concluded that the students had failed to present evidence that the procedural irregularities they cited were related to their race. “To infer these … students were discriminated against merely because they suffered adverse action and are members of a protected class would render the prima facie requirement of intent meaningless.”

Framing the issue as “whether blacks are unfairly assigned as disabled,” the court stressed that in order for the students to continue the case under Title VI, they “[m]ust raise at least some reasonable inference that they were placed into classes and offered services by the School District due to intentional discrimination based on their race and not simply due to errors in evaluation.” It concluded that it could not infer that the students were wrongfully placed in special education because of their race based on the statistical evidence the students offered. The court determined that the students’ Fourteenth Amendment claim failed for the same reasons.

Ruling/Rationale: The Third Circuit panel’s majority affirmed the lower court’s decision that the plaintiffs had failed to establish a prima facie case of race discrimination under Title VI or § 1983. The majority stated: “LMSD was entitled to summary judgment because there is no evidence to suggest either that LMSD itself acted with a discriminatory intent, or that it knew of—but failed to correct—a third party’s intentional discrimination.”  It found that while the statistical evidence offered by the plaintiffs provided some evidence that African-American students were overrepresented in special education classes, the evidence was insufficient to demonstrate that school officials “responsible for placing students intended to discriminate against them because of their race.”

The majority also pointed out that in order to show that LMSD acted with deliberate indifference, the plaintiffs were obliged to show that the school district had knowledge that officials had engaged in racial discrimination. However, it found there was “no evidence in the record to suggest that it did or that any third party under [LMSD’s] control engaged in intentional discrimination.”

The majority found it was in agreement with the district court’s conclusion “that plaintiffs failed to offer evidence sufficient to support an inference that the LMSD had intentionally discriminated against African-Americans.”

The majority opinion further stated, “Moreover, plaintiffs had not put forth more than a scintilla of evidence that the LMSD acted with a racially discriminatory purpose in identifying them as disabled and placing them in special education courses regardless of whether this identification was correct. Furthermore, the plaintiffs did not identify an official policy or custom that suggested that the LMSD was deliberately indifferent to their rights.”

The majority acknowledged the existence of statistical evidence of racial overrepresentation in special education classes and some other evidence of possible racial bias. However, it stressed “the record also reflects that each individual student’s educational needs were assessed and satisfied through a thorough and individualized IEP process, and contains no evidence that the educators and administrators responsible for placing students intended to discriminate against them because of their race.” As a result, the majority concluded that “there is no genuine issue of material fact that LMSD itself—or a third party under its control—engaged in intentional discrimination.”

The dissenting judge penned a vigorous opinion departing from the majority and district court’s analysis of the Title VI and § 1983 claims. The dissent argued that because Title VI, Title IX, the Rehabilitation Act (RA) and the American with Disabilities Act (ADA) are interrelated federal anti-discrimination statutes, deliberate indifference is the intentional discrimination standard not only for Title IX, as established by Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) and Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), but also for Title VI, RA and ADA.

The dissent also argued: “The rationale for allowing deliberate indifference to establish intentional discrimination under Title VI is further illustrated by limitations and obligations arising from the S[p]ending Clause authority that each of the analogous statutes is based upon.”  In addition, the dissent contended that the district court’s analysis of intentional discrimination under Title VI was at odds with every other federal circuit that had decided the issue.

Blunt v. Lower Merion Sch. Dist., Nos. 11-4200/11-4201/11-4315 (3d Cir. Sept. 12, 2014)

[Editor’s Note:  In October 2011, Legal Clips summarized the district court’s decision in Blunt v. LMSD holding that the students had failed to present evidence that the procedural irregularities they cited were related to their race. “To infer these….students were discriminated against merely  because they suffered adverse action and are members of a protected class would render the prima facie requirement of intent meaningless.” Framing the issue as “whether blacks are unfairly assigned as disabled,” the court stressed that in order for the students to continue the case under Title VI, they  “[m]ust raise at least some reasonable inference that they were placed into classes and offered services by the School District due to intentional discrimination based on their race and not simply due to errors in evaluation.”  It concluded that it could not infer that the students were wrongfully placed in special education because of their race based on the statistical evidence the students offered. The court determined that the students’ Fourteenth Amendment claim failed for the same reasons.]

Former teacher’s suit claims he was fired by Oregon district in retaliation for protest against Planned Parenthood

The Oregonian reports that Bill Diss, formerly a teacher at Benson High School (BHS), has filed suit against Portland Public Schools (PPS) seeking $390,000 for his alleged wrongful termination. Diss,who is a devout Roman Catholic, claims that PPS violated his First Amendment free speech rights and discriminated against him because of his religious beliefs by terminating him in retaliation for protesting plans to locate a Planned Parenthood headquarters in his North Portland neighborhood. Diss had worked with PPS for more than a decade and according to the suit, he had received proficient or better evaluations for years before he was terminated.

According to the suit, Diss’ troubles with PPS began in February 2007 when he actively began to protest plans for a Planned Parenthood headquarters in Northeast Portland. The suit alleges that media started calling the school asking for Diss, and that he was interviewed by TV and radio reporters. According to the suit, as the attention mounted, Diss was summoned by BHS administrators and interrogated about his activities by the principal and attorney for PPS. The suit states that even though the activities in question occurred on his own time, and while he was not at school, he was specifically instructed not to mention the fact that he was a teacher and where he worked.

PPS spokeswoman Christine Miles said that “the school district believes the allegations he has brought up in a legal matter do not have merit, and we will continue through the process to prove that.” Even though Miles did not elaborate, in a 2013 letter from PPS to Diss, the district stated that Diss had shown “unprofessional, intimidating and/or harassing behavior.” Diss also previously conceded that he talked about Planned Parenthood and his religious beliefs in class, but he didn’t stop students from expressing their own views.

In addition, Diss contends that he was required to facilitate Planned Parenthood’s visits to his classroom and that BHS’s administration denied his request to be excused from Planned Parenthood’s program presentations. According to the allegations contained within the suit, Diss became a target of the administration because he expressed his opposition to the activities of Planned Parenthood at BHS. The suit further alleges that after he expressed his opposition to the activities of Planned Parenthood, the school launched a “full-scale assault” on him and observed and evaluated the “most minute aspects” of his teaching.

The suit states that in the fall of 2012, Vice Principal Jeandre Carbone wrote Diss an email asking him to stop using “God Bless” in his communications with her, staff, parents and students. Things kept going downhill, and by March 2013 the school board decided not to extend his contract, which ran through June 2014.

At a pre-termination hearing held in 2013, multiple administrators testified that Diss was often rude to students and had a pattern of behavior that was damaging to his relationships with students and co-workers. However, Diss had many supporters who attended the meeting to defend him. The board subsequently voted to terminate Diss’ employment with the district.

Diss filed his suit after the board terminated him. Rebekah Millard, of the Life Legal Defense Foundation, represents him. His suit states that Diss believes that Planned Parenthood commits many “grave moral evils” and promotes “sexual behaviors which his religious tenets characterized as deviant.”

Source: The Oregonian, 9/18/14, By Aimee Green

[Editor’s Note: In September 2011, Legal Clips summarized a decision by the U.S. Court of Appeals for the Ninth Circuit in Johnson v. Poway Unified School District holding that a California school district did not violate a high school teacher’s rights to free speech, equal protection, or the Establishment Clause when the school’s principal ordered the teacher to remove banners displayed in his classroom that contained religious references.]

California first to comprehensively limit information compiled about students

According to The New York Times, California is poised to become the first state to comprehensively restrict how data that technology companies are collecting about students is to be used. Last month, California state legislators passed a law prohibiting education sites, apps and cloud services, used by schools, from selling or disclosing personal information about students from kindergarten through high school. It also prohibits the companies from using the children’s data to market to them and it prevents the companies from compiling dossiers on the students.

The law is a response to growing parental concern that sensitive information about children, such as data about learning disabilities, disciplinary problems or family trauma, might be disseminated or disclosed, potentially hampering college or career prospects.  Although other states have enacted limited restrictions on such data, California’s law is the most wide-ranging.  “It’s a landmark bill in that it’s the first of its kind in the country to put the onus on Internet companies to do the right thing,” said Senator Darrell Steinberg, a Democrat who wrote the bill.

Governor Jerry Brown has not taken a public position on the measure, or on a related student privacy bill regulating school contracts with education technology vendors.  If he does not act, the bills will become law at the end of this month.  Steinberg said that the bills had broad bipartisan support and were likely to  be enacted.

The California effort comes at a pivotal time for the technology industry. Schools nationwide have been rushing to introduce everything from sophisticated online portals, which allow students to see course assignments and send messages to teachers, to reading apps that can record and assess a child’s every click.  The data-driven products are designed to adapt to the abilities and pace of each child holding out the promise of improved academic achievement.

As schools embrace these personalized learning tools, however, parents across the country have started challenging the industry’s information privacy and security practices. “Different websites collect different kinds of information that could be aggregated to create a profile of a student, starting in elementary school,” said Tony Porterfield, a software engineer and father of two pre-teenage sons in Los Altos, California.  “Can you imagine a college-admissions officer being able to access behavioral tracking information about a student, or how they did on a math app, all the way back to grade school?,”  he asked.

Although the Family Educational Rights and Privacy Act ( FERPA) limits the disclosures of student education records by schools that receive public funding, critics have long complained that the 40-year old law, written for the file-cabinet era when student records were kept on paper, has not kept pace with digital data-mining. Furthermore, privacy advocates say that many of the details now collected by education sites and apps are not covered by the law because they do not form part of the institutional student education records maintained by schools.

Over the last year, states have introduced more than 100 bills to regulate the collection or handling of students’ information.  Many are narrow in scope.  Lawmakers in Florida, for instance, passed a measure to prohibit schools from fingerprinting students or collecting scans of their palms or irises, which scuttled the palm-scanning payment system in cafeterias there.

The California measure takes a fuller approach, formally extending privacy protections to a much wider array of information than the official education record covered by FERPA.  Among other things, the California bill prohibits companies from selling, disclosing or using for marketing purposes students’ online searches, text messages, photos, voice recordings, biometric data, location information, food purchases, political or religious information, digital documents, or any kind of student identification code. The idea is to prevent companies from using information about students for any activity not intended for school.

“The California statute is filling the void,” said Joel R. Reidenberg, a professor at Fordham Law school who is an expert in education privacy law.  “They are modernizing the protection of student privacy for the computer era in schools,” he said.

California lawmakers did make some concessions to the industry. An exception in the legislation, for instance, allows companies to use student data for “legitimate research purposes.”

Source:  The New York Times, September 14, 2014, By Natasha Singer

  [Editor’s Note: In August of  2014, Legal Clips did an article summarizing new Department of Education guidelines on student records. In the guidance issued by the Department’s Privacy Technical Assistance Center (PTAC), titled “Transparency Best Practices for Schools and Districts,” schools and districts are urged to be proactive in communicating how they use student data.]





South Carolina high school principal justifies removing American flags from students’ trucks based on district policy

According to GoUpstate.comWoodruff High School Principal Aaron Fulmer removed American flags, mounted on the posts of four students’ trucks, on September 11. He said that he was simply enforcing a long standing district policy when  he removed the flags. Although Fulmer personally applauded the students’ patriotism and understands the significance of flying the flags on 9/11, he stressed that he cannot discriminate in enforcement of the policy even in the face of criticism.

Fulmer returned the flags to the students at the end of the school day. He said that the students were not punished or scolded. He said he told them: “I’m not mad at you. We’re not upset at you. I applaud your patriotism.” He told them that rules are rules and explained the policy to the students.

District 4 Superintendent Rallie Liston said the issue is not about the American flag. He said that the students violated a rule against anything that creates a disturbance on campus or draws an “unusual amount of attention to oneself.” He said students can display the American flag on their vehicles, such as in the form of a sticker. Liston emphasized that the students were not disciplined and the principal’s actions were about consistent enforcement of rules.

According to Liston, the policy seeks to avoid discriminating based on judging forms of expression. “We all love America and support our country and our flag. We value our veterans, but we also understand that they fought for the First Amendment, and when we get into the First Amendment, we can’t discriminate,” Liston said.

Source: GoUpstate.com, 9/12/14, By Kim Kimzey

[Editor’s Note: Banning the display of the Confederate flag has been upheld by federal appellate courts. In Hardwick v. Heyward, which was summarized by Legal Clips in April 2013, a U.S. Court of Appeals for the Fourth Circuit three-judge panel held that a school district did not violate a student’s First Amendment free speech rights by prohibiting her from wearing a T-shirt depicting the Confederate flag. Banning displays of the American flag is as hotly contested, if less prevalent, than banning Confederate flag displays.

In March 2014, Legal Clips summarized a decision, by a U.S. Court of Appeals for the Ninth Circuit three-judge panel, in Dariano v. Morgan Hill Unified Sch. Dist. The case held that a high school assistant principal did not violate students’ free speech rights when he prohibited them from wearing clothing bearing the image of the American flag on the day that the school was celebrating the Mexican holiday of Cinco de Mayo.  It also concluded that the assistant principal’s action did not violate the students’ equal protection or due process rights.] 

Disabled California high school graduate seeks to void diploma and sues to redo senior year

According to the Los Angeles Times, a Newport Harbor High School graduate is asking a court to invalidate her diploma, saying that teachers and administrators cheated her out of a quality education by boosting her grades and waiving assignments after she suffered a traumatic brain injury in her senior year. Crystal Morales claims that instead of developing a plan to deal with her disability, NHHS teachers and administrators rushed her to graduation and pushed her out the door.

Morales, in asking a judge to invalidate her diploma, is attempting to force  Newport-Mesa Unified School District (NMUSD) to provide a redo for the last few months of her education. “It’s all about getting her back to where she left off,” Morales’ mother, Gloria Morales, said.

NMUSD, however,  contends that Morales legitimately completed all her high school work and that it was the former student’s mother who pushed for graduation. Responding to Morales’ legal complaint, the school district stated: “[Morales’] mother was adamant that she wanted [Morales] to graduate with a high school diploma, and did not want [Morales] assessed for special education.”

Morales suffered her brain injury when a drunk driver struck her and left her in a temporary coma.  She returned to school three months later. The suit alleges that at first she was offered one-on-one attention, but that changed when she returned to normal classes where she was not required to complete normal work.

The suit claims that in English class, she was given a book to read, but was never required to turn in the assignment. The suit also alleges that Morales was receiving a “D” in math before the injury, but it was changed to an “A+”  by administrators by the end of the semester. ” She was allowed to just skip on through, and she wasn’t held responsible for any of that,” Gloria Morales said.

In papers filed with the court, NMUSD  contends that her mother never objected when grades were sent home soon after the semester. It also maintains that officials explained Morales’ options and provided information on special education. However, her mother insists that she didn’t understand what her daughter would miss out on by graduating.

“Knowing what I know now, I would have never returned her to campus for the reason that we did,” Gloria Morales said.

Source: Los Angeles Times, 9/11/14, By Jeremiah Dobruck

[Editor’s Note: While the basis for this suit is novel, it is not unique. In April 2011, Legal Clips summarized an article in Courthouse News Service detailing a suit brought by a former high school football player claiming his football coach at Highlands High School (HHS) sent him back into a game after suffering a concussion despite teammates’ warnings about his “incoherent condition.”  The federal court suit also alleged that when the player’s injuries became so debilitating that they affected his grades, Principal Thomas Shirey said he could fix that with a “shake of his magic wand,” in an “overt” and “unethical” offer to change his grades.] 

Satanic group plans to distribute materials at Florida district’s schools

The Orlando Sentinel reports that the Satanic Temple (ST), which supports social justice causes and believes Satan is the “eternal rebel against the ultimate tyrant,” plans to hand out literature in Orange County Public Schools (OCPS) later this school year. According to ST’s co-founder and spokesman Lucien Greaves, “If a public school board is going to allow religious pamphlets and full Bibles to be distributed to students, as is the case in Orange County, Florida, we think the responsible thing to do is to ensure that these students are given access to a variety of differing religious opinions.”

OCPS has allowed World Changers of Florida to distribute Bibles twice, and an atheist group was also permitted to distribute materials last year. In both cases, school district counsel Woody Rodriguez said the pamphlets and books were being allowed to avoid a lawsuit.

The Freedom From Religion Foundation (FFRF) and its local affiliate, the Central Florida Freethought Community, sued Orange County schools last year after some of their materials were censored. The case was dismissed earlier this year when the school district agreed to allow all of the materials to be distributed.

“They have no ability to keep out the Satanists and the literature they want to distribute unless they close the forum altogether,” said FFRF attorney Andrew Seidel.

Source: Orlando Sentinel, 9/16/14, By Lauren Roth

[Editor’s Note: ST’s press release announcing its intention to distribute materials at OCPS schools states: Neither FFRF nor the Satanic Temple agree with the school board’s decision to allow the distribution of religious materials in schools; however, the Satanic Temple seeks to ensure that pluralism is respected whenever the Church/State division is breached.

In July 2014, Legal Clips summarized an article in Courthouse News Service reporting that a U.S. District Court in Florida had dismissed a suit, brought by the Freedom From Religion Foundation (FFRF) against the Orange County School Board (OCSB), alleging that the board barred FFRF from distributing materials, which criticized various religions, in the district’s schools. The suit alleged that a group called the World Changers of Florida (WCF) had been allowed to distribute copies of the Bible and that the district’s failure to allow them to distribute materials, amounted to a violation of the First and Fourteenth  Amendments. Because OCSB had voluntarily changed its position, on its alleged constitutionally impermissible decision, and allowed the distribution of the materials prior to the court’s ruling on the suit, the federal district court concluded that it lacked subject matter jurisdiction to adjudicate the dispute and dismissed the claim.]

Page 34 of 247« First...1020...3233343536...405060...Last »



Copyright © National School Boards Association. All rights reserved.
1680 Duke Street, Alexandria, VA 22314
Phone: (703) 838-6722 Fax: (703) 683-7590 E-mail: info@nsba.org

RSS Feed.