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Virginia House passes “Tebow” bill allowing home schoolers to participate in interscholastic sports

According to the Smith Mountain Eagle, the Virginia House of Delegates has voted 56-43 to allow home-school students to play sports at local public schools. HB1442, known as the “Tebow” bill, would bar public schools from joining any organization governing interscholastic programs that would prevent various students from joining, including those who are home-schooled, those who have shown progress for two consecutive years, those who are younger than 19, or those who are playing for no compensation other than the enjoyment of the sport. The bill does allow the students to be charged a fee for participation.

Delegate Robert B. Bell, who is sponsoring the bill, believes it is a matter of fairness to home schooled students. He said, “The students are complying with all the rules that Virginia sets out for them – their parents are paying taxes and all they’re asking for is an opportunity to try out.”

Delegate Daun S. Hester, however, voted against the bill. “When parents make a choice for the education of their children, they understand the rules that go with that, and participating in public school activities is not one of those options as a homeschooled child,” she said. “That change only opens the door for further changes.”

Representatives from the Virginia High School League, the Virginia Education Association, the Virginia PTA, and the Virginia School Boards Association have spoken against the bill in the past. Legislation related to the “Tebow” bill is pending in the Senate.

Source:  Smith Mountain Eagle, 2/1/13, By Abby Kloppenburg

[In April 2009, Legal Clips summarized an article in the Mobile Press-Register, which reported that an Alabama Senate committee had defeated a bill that would have allowed home-schoolers to participate in extracurricular activities. The legislation, sponsored by state Senator Hank Erwin, would have allowed home schooled students to play sports and other activities sponsored by a public school. The April 2009 article is available to COSA members on NSBA's website.]

Report says most South Carolina districts are failing to comply with state sex education law

According to The State, a report by the New Morning Foundation (NMF), a health- and sex-education advocacy group has found that three out of four South Carolina school districts fail to comply with a state law outlining how they should teach sex education. The report, “A Sterling Opportunity: 25 Years After the Comprehensive Health Education Act,” also claims the law is flawed, providing little oversight of what districts are teaching in sex education classes, and needs to be rewritten.

Almost one in five South Carolina school districts did not respond to a required annual survey from the state Department of Education, asking them to provide details of their sex education policies. According to Emma Davidson of NMF, it is difficult to know what South Carolina students are learning in their sex education classes because districts use the “honor system” to report what they are teaching.

Concerned about the lack of state oversight and the state’s higher than average teen birth rate, NMF is pushing lawmakers to revisit the state’s 1988 Comprehensive Education Act. That law required teaching sex education. “The Comprehensive Health Education Act, as written, has significant weaknesses,” Davidson said. “There’s no way to verify if teachers are spending time explaining the basics of reproductive health or if students are learning that condoms prevent pregnancy and STDs.”

“There’s no way to ensure that sex education lessons are based on medically accurate facts or if personal opinions, religious beliefs and other non-scientific perspectives have made their way into the classroom. Beyond the honor system, we simply don’t know how time is spent in the classroom and what students are learning.” Some decisions on classroom materials and topics to be covered are left to the discretion of school districts. The result, Davidson said, is students attending schools in neighboring districts could receive very different information in their sex-ed classes.

The foundation’s report is based in part on school districts’ 2011 responses to a state Education Department sex education survey. Only 81% of the state’s 85 school districts responded to that survey. Five school districts had not responded to the survey in three years, according to the Education Department.

The foundation recommends lawmakers take steps to ensure students are receiving quality, consistent information and districts know what is expected of them. It also recommends requiring districts to report detailed instructional practices and set minimum hours for staff development.

The foundation also would like to see changes in the law’s language, including its current requirement that contraception always be discussed in the context of “future family planning.” That language “implies that no unmarried persons are sexually active, and ignores the fact that the majority of high school seniors in South Carolina report having engaged in sexual activity,” according to the report.

According to Education Department Spokesman Jay Ragley, state schools chief Mick Zais agrees with only one of the foundation’s recommendations: School districts that fail to comply with the law need to be held accountable.

Source:  The State, 1/31/13, By Jamie Self

[Editor's Note: The executive summary of NMF's report states: "The goal of this study was to assess whether South Carolina’s schools, by and large, are in compliance with The Comprehensive Health Education Act (CHEA), and whether the General Assembly’s legislative intentions have been fulfilled." It found that "[r]esults indicated the majority of school districts are not in compliance with the reproductive health education aspects of CHEA. The report also “determined that teacher training is inadequate and inconsistent.”

In August 2012, Legal Clips summarized an Associated Press article in The Washington Post, which reported that two parents and a coalition of groups in California had filed a lawsuit against Clovis Unified School District alleging that its sex education program was putting teens’ health at risk by failing to provide students with information about condoms and contraception. According to the American Civil Liberties Union of Northern California, the lawsuit was the first of its kind in California since the passage of a 2003 law that required sex health education in public schools to be comprehensive and medically accurate.]

OCR issues “Dear Colleague Letter” Stating Schools Should Ensure Disabled Students Have Access to Extracurricular Activities

The USA Today reports that the United States Department of Education’s Office for Civil Rights (OCR) has sent a letter to school officials across the United States informing school districts that they must give disabled students equal access to extracurricular activities.  The letter issued by ED’s Acting Assistant Secretary for Civil Rights Seth Galanter states schools should provide “reasonable modifications” to allow disabled students to participate – for instance, providing a deaf track athlete with a flashing light that goes off simultaneously with the starter pistol that others hear.

Kirk Bauer, Executive Director of Disabled Sports USA, applauded OCR’s action, noting 12 states require school sports programs to accommodate disabled students, and that now, other administrators “will start focusing on ways to provide those opportunities” to students who have a disability.  “It’s really affording them access to terrific social situations that will hopefully break down some of the barriers and discrimination we’ve seen in the past,” said Lindsay Jones of the Council for Exceptional Children.

The letter comes two-and-a-half years after a 2010 Government Accountability Office (GAO) investigation that found students with disabilities participated in athletics “at consistently lower rates than students without disabilities.” The report was historic, disabilities rights advocates say, because for the first time it put firm statistics behind what they’d been saying for years.  The report said the Obama administration had given schools “little information or guidance on (physical education) or extracurricular athletics for students with disabilities.”

Source:  USA Today, 1/25/13, By Greg Toppo

[Editor's Note:  Additional information from the NSBA will be forthcoming, so stay tuned.

OCR's January 25, 2013 Dear Colleague Letter (DCL) states: "A school district’s legal obligation to comply with Section 504 and the Department’s regulations supersedes any rule of any association, organization, club, or league that would render a student ineligible to participate, or limit the eligibility of a student to participate, in any aid, benefit, or service on the basis of disability."

The DCL also warns school officials against acting on stereotypes and generalizations:

A school district may not operate its program or activity on the basis of generalizations, assumptions, prejudices, or stereotypes about disability generally, or specific disabilities in particular. A school district also may not rely on generalizations about what students with a type of disability are capable of—one student with a certain type of disability may not be able to play a certain type of sport, but another student with the same disability may be able to play that sport.

In May 2012, Legal Clips summarized an article in the Chicago Sun-Times reporting that Illinois Attorney General Lisa Madigan has filed suit in federal court, seeking to make it possible for student-athletes with disabilities to compete in future Illinois High School Association (IHSA) state meets. The suit asked for an injunction ordering IHSA “to cease unlawful discrimination against athletes with disabilities,” and to create more opportunities for athletes with disabilities by setting state-qualifying standards for those athletes in individual sports, including swimming and track and field.]

Federal appellate court upholds amendments to Wisconsin labor law affecting rights of one class of public workers

Wisconsin Educ. Ass’n Council v. Walker, Nos. 12-1854/12-2011/12-2058 (7th Cir. Jan. 18, 2013)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit (IL, IN, WI) has unanimously affirmed a federal district court’s decision that a provision in Wisconsin’s Act 10, which restricts the collective bargaining rights of public workers classified as “general employees”, is constitutional. All three panel judges also reversed the lower court’s holding that Act 10′s annual recertification requirement for general employees unions violates the U.S. Constitution. However, one judge dissented from the two-judge majority’s holding, which reversed the district court, affirming Act 10′s provision prohibiting of dues withholding for general employees.

Facts/Issues: In June 2011, Wisconsin Act 10 (Act 10) took effect, amending the state’s collective bargaining rules. Act 10 created two new classes of public employees: “general employees” and “public safety employees,” with certain restrictive provisions applying only to general employees. As the court noted, Act 10 “left the rights of public safety employees to unionize and collectively bargain unchanged, while general employees lost most of these rights.”

Three specific provisions of Act 10 treat “general employees” and their unions differently than “public safety employees”: (1) the limitations on the permissible collective bargaining subjects of “general employees”, except on ‘total base wages’; (2) stricter annual recertification requirements for general employee unions; and (3) the prohibition on the voluntary payroll deduction of union dues from general employees.

A coalition of seven of the state’s largest labor unions representing public employees, including the Wisconsin Education Association Council, filed suit in federal district court. In the suit, the unions challenged Act 10′s creation and treatment of the two new classifications of public employees and the specific provisions applicable only to general employees, both under the Equal Protection Clause. The unions also challenged the prohibition related to automatic dues withholding under the First Amendment.

The district court ruled that two provisions in Wisconsin’s 2011 collective bargaining law applicable only to general employees and their unions are unconstitutional, but upheld the remaining provisions applicable to both general and public safety employees. Specifically, the district court concluded that Act 10’s annual recertification requirement for general employees’ unions violated the Equal Protection Clause, and Act 10′s prohibition of dues withholding for general employees violated the First Amendment.

Ruling/Rationale: Affirming the lower court’s decision, the three-judge panel of the Seventh Circuit unanimously held that Act 10′s restrictions on general public employees’ right to collectively bargain do not violate the U.S. Constitution’s Equal Protection Clause. All three judges also upheld the district court’s ruling that Act 10′s annual recertification requirement does not offend the Equal Protection Clause. However, the panel split, 2-1, on the question of whether Act 10′s prohibition on the voluntary withholding of union dues from a general employee’s paycheck violates the First Amendment’s guarantee of free speech.

Taking first the First Amendment challenge to the payroll deduction, the two-judge majority concluded that the question had been settled by Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009), which held that “use of the state’s payroll systems to collect union dues is a state subsidy of speech that requires only viewpoint neutrality.” The panel majority pointed out that “Ysursa requires us to analyze Act 10 under First Amendment cases involving speech subsidies,” and that “[u]nder those cases, Act 10 presents no free speech problem unless it invidiously discriminates on the basis of viewpoint.”

The panel majority rejected the unions’ attempt to characterize the separate classifications for public safety employees and general employees as demonstrating viewpoint discrimination. It stated: “The distinction between public safety and general employee unions in Act 10 is facially neutral, and the Unions do not succeed in showing otherwise.”

The panel majority also found without merit the unions’ argument that Act 10 is a facade for invidious discrimination. The panel majority concluded that it had an “insufficient basis to ascribe [to state] Senator Fitzgerald’s personal position, i.e., a politically weaken union would make it easier to defeat Obama in Wisconsin, to the entire legislature.”

The panel majority concluded that “the use of the state payroll system to collect union dues is a state subsidy of speech. As such, the distinction between public safety and general employees only violates the First Amendment if it discriminates on the basis of viewpoint.” The panel majority determined that Act 10 is not viewpoint discriminatory, and, therefore, does not implicate the First Amendment and requires only rational basis review.”

Applying the rational basis test, the panel majority rejected the unions’ contention that division of public safety and general employees is irrational under the Equal Protection Clause, because “the only explanation for the legislation is the extension of ‘rank political favoritism’ towards the unions that supported the governor’s campaign.” It noted that “animus only invalidates a law when no rational basis exists.” The majority emphasized that a law that otherwise satisfies rational basis scrutiny is not invalidated just because legislators may have been motivated by political favoritism.

Turning to the collective bargaining limitations in Act 10, the panel stated that it agrees that “that Wisconsin reasonably concluded that the public safety employees filled too critical a role to risk such a [work] stoppage. Not only has the Supreme Court previously held labor peace in certain instances is a legitimate state interest, the Court found the interest weighty enough to justify some impingement on the free speech rights of employees who do not belong to a union.” While the panel acknowledged that making the distinction between public safety and general employee unions “may have been a poor choice, such a distinction is not unconstitutional.”

Addressing Act 10′s recertification requirements provision, the panel found the unions had raised the same arguments against this provision as they had against the collective bargaining provision. It found those arguments, as detailed, “are unavailing.”

Finally, having concluded that the First Amendment was not implicated, the majority applied the rational basis test to the challenge of Act 10′s payroll deduction provision under the Equal Protection Clause. It again rejected the unions’ attempt to characterize the distinction between public safety and public employees as irrational. It stated that “these arguments fail for the same reasons stated above – such line-drawing is not for the courts.” It pointed out that “rational basis review does not require the state to ‘produce evidence to sustain the rationality’ of the law, provided the law has ‘some footing in the realities of the subject addressed by the legislation.’”

The dissenting judge took issue with the majority’s reasoning on the payroll deduction provision based on its failure to apply a forum analysis, and failure to analyze the provision beyond a finding of facial neutrality. The dissent found that there was no doubt that Act 10′s application had created a “nonpublic forum”, by providing for the collection of payroll deductions for public safety employee unions’ dues. The dissent stated that “general First Amendment standards for a nonpublic forum are settled: Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.”

The dissent criticized the panel majority for creating a difference between the “nonpublic forum” cases and the “subsidy” line of cases where none exists. The dissent stressed that the determining factor is viewpoint discrimination, regardless of the label attached. The dissent stressed courts must go beyond facial neutrality to address the question of whether “the new law violates – in fact – the well-established requirement of viewpoint neutrality.”

The dissent argued that “Ysursa simply did not decide an issue like the one we face here, whether Act 10’s facially neutral but selective limits on access to public payroll deductions are actually viewpoint-neutral or not.” It agreed with the district court, and unlike the majority, found that evidence of political motive was sufficient to find viewpoint discrimination.

In regard to the state’s additional arguments of viewpoint neutrality, the dissent found those arguments had not been made in the district court and, therefore, had been waived. The dissent also charged that those “ad lib” arguments were “further evidence that the defense is just a pretext for unconstitutional viewpoint discrimination.”

Wisconsin Educ. Ass’n Council v. Walker, Nos. 12-1854/12-2011/12-2058 (7th Cir. Jan. 18, 2013)

[Editor's Note: In April 2012, Legal Clips summarized the district court's decision in Wisconsin Educ. Ass'n Council v. Walker, which held that two provisions in Wisconsin’s 2011 collective bargaining law applicable only to general employees and their unions were unconstitutional, but upheld the remaining provisions applicable to both general and public safety employees.  Specifically, the district court concluded that the law’s annual recertification requirement for general employees' unions violated the Equal Protection Clause, and the law’s prohibition of dues withholding for general employees violated the First Amendment.]

Pennsylvania district’s policy of basing teacher salary, in part, on prior in-state teaching experience did not violate teacher’s constitutionally protected right to interstate travel

Connelly v. Steel Valley Sch. Dist., No. 11-4206 (3d Cir. Jan. 24, 2013)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) has ruled that a school district’s policy of basing teacher salaries, in part, on prior in-state teaching experience did not violate a teacher’s constitutional right to interstate travel. The panel concluded that the policy’s experience-based classification did not implicate a fundamental right, which did not require it to be narrowly tailored to further a compelling government interest in order to pass constitutional muster.

As a result, the panel applied the rational basis test. It concluded that the policy’s “experience-based salary classification is sufficiently tied to the legitimate state purpose of promoting an efficient and effective public school system to pass the rational basis test.”

Facts/Issues: At the time the Steel Valley School District (SVSD) hired Patrick Connelly as a teacher, he had nine years of teaching experience, all in Maryland. SVSD employs a salary scale that pays teachers based on their education and years of experience. Because Connelly acquired his experience outside Pennsylvania, SVSD credited him with only one year of teaching experience. Under SVSD’s policy, other new teachers with like experience acquired within Pennsylvania, but not at SVSD, received at least partial credit for each year they had taught.

As a result of the policy, Connelly’s starting salary was substantially lower than it would have been had SVSD given him full credit for his experience, which adversely affected him each year he received a salary increase. In June 2011, he filed suit in federal district court against SVSD raising Fourteenth Amendment claims. The suit charged that SVSD’s failure to fully credit his out-of-state teaching experience violated his right to interstate travel under the Privileges and Immunities Clause of the U.S. Constitution, and denied him equal protection under the law.

The district court granted SVSD’s motion to dismiss the suit, “holding that Connelly – does not state a cognizable Fourteenth Amendment claim because the classification alleged is based on location of teaching experience, not residency.” Connelly argued on appeal that SVSD’s “salary scale impaired his right to travel interstate in violation of the Privileges and Immunities Clause of Article IV (as incorporated through the Fourteenth Amendment) and the Equal Protection Clause.”

Ruling/Rationale: The Third Circuit panel affirmed the lower court’s decision. It began its analysis by addressing the question of which equal protection standard governs its review of SVSD’s pay scale. It noted that both claims would be subject to the same standard because “the right to interstate travel finds its most forceful expression in the context of [the] equal protection analysis.”

The panel first pointed out that a classification is subject to a strict scrutiny analysis only if it burdens a fundamental right or targets a suspect class. In the case of SVSD’s pay scale, it found that Connelly was arguing that it was burdening his fundamental right to interstate travel.

The panel stated that the right to travel includes three components: (1) the right of a citizen of one state to enter and to leave another state; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state; and (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that state. The panel pointed out that the parties agreed that only the third component was at issue.

The panel next moved to a discussion of whether SVSD’s experience-based classification penalized Connelly’s fundamental right to be treated like other Pennsylvania citizens. It determined that under this component, strict scrutiny applies when the state conditions the receipt of certain government benefits on the duration of the recipient’s residence in the state.

The panel agreed with the district court that SVSD’s classification is based on the location of the teaching experience, not duration of the teacher’s residency. As a result, a lifelong Pennsylvania resident, for example, who taught in Maryland and later sought a teaching position in Pennsylvania would be subject to the same classification as Connelly. While conceding that SVSD’s classification creates some incidental burden on interstate travel, the panel concluded: “Because Steel Valley‘s salary classification treats citizens differently based only on their teaching experience irrespective of their residency, strict scrutiny does not apply.”

The panel rejected Connelly’s reliance on Erisman v. Chartiers Valley School District, No. 00-1102 (W.D. Pa. Sept. 17, 2001), a case in which a district court held that a experience-based salary classification was subject to strict scrutiny. In declining to follow Erisman, the panel said, “The relevant distinction when evaluating a claim asserting a violation of the fundamental right to travel is between long-term and short-term residents, not current residents and prospective residents.” 

Concluding that the “right to travel simply is not implicated when there is no discrimination based on the duration of one‘s residency,” the panel, therefore, subjected SVSD’s salary classification to rational basis review. It found that the experience-based salary classification was “sufficiently tied to the legitimate state purpose of promoting an efficient and effective public school system to pass the rational basis test.”

The panel agreed with the district court that the two justifications the lower court identified offer greater compensation to those with in-state teaching experience, i.e., “valuing familiarity with the Pennsylvania Department of Education‘s policies, procedures, and regulations; and promoting efficiency in the education system,” and provide a legitimate rationale for the salary classification.

Connelly v. Steel Valley Sch. Dist., No. 11-4206 (3d Cir. Jan. 24, 2013)

Pennsylvania federal district court allows suit over Ten Commandments display on school property to proceed

Freedom From Religion Foundation v. New Kensington-Arnold Sch. Dist., No. 12-1319 (W.D. Pa. Jan. 22, 2013)

Abstract: A federal district court in Pennsylvania has denied a school district’s motion to dismiss a suit brought by group of unidentified parents and students alleging that the Ten Commandments monument outside the entrance to the high school violates the First Amendment’s Establishment Clause. While acknowledging that the Plaintiffs’ claim might later prove untenable and their request for declaratory judgment and an injunction unwarranted, the court concluded that the Plaintiffs have pleaded sufficient factual allegations to state a plausible claim. The court stated that allowing the parties to conduct discovery will give them “ample opportunity to build a sufficient factual record that permits this Court to meaningfully apply the law to this difficult context-driven task.”

Facts/Issues: The Freedom From Religion Foundation (FFRF) filed suit on behalf of a group of parents and students against New Kensington-Arnold School District (NKASD), seeking the removal of a Ten Commandments monument from the grounds of Valley High School. The suit alleges that the 6-foot high stone monument outside of the school endorses religion, and violates the separation of church and state under the First Amendment’s Establishment Clause.

FFRF is seeking a declaratory judgment that the monument’s presence outside of a public school is unconstitutional, and an injunction ordering NKASD to remove the monument from school property. NKASD filed a motion to dismiss the suit and a motion to strike three paragraphs from the Plaintiffs’ complaint. The district court denied the motion to strike on the grounds that statements in those paragraphs “do not fall within the realm of this highly disfavored remedy.”

NKASD challenged the legal sufficiency of FFRF’s allegations, “arguing that the Supreme Court of the United States’ fairly recent Establishment Clause jurisprudence forecloses the cause advanced by Plaintiffs.” Specifically, NKASD pointed to the factual similarity of the instant case with Van Orden v. Perry, 545 U.S. 677 (2005), a case in which the U.S. Supreme Court upheld the constitutionality of a Ten Commandments monument on government property.

Ruling/Rationale: The district court denied NKASD’s motion to dismiss the suit. Before analyzing the specifics of the school district’s motion, the court engaged in a lengthy discussion of Establishment Clause jurisprudence. It characterized this particular vein of constitutional law as muddied. It stated that “the Supreme Court has announced no less than four judicially-crafted ‘tests’ to analyze whether governmental action violates the Constitution.”

The court then reviewed the four tests “to provide the parties with some degree of clarity” as the case proceeds. It began with the three-prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971). While acknowledging criticism of the Lemon test, the district court pointed out that “the Supreme Court reaffirmed the vitality of its use as recently” as its decision in McCreary Cnty. v. American Civil Liberties Union of Ky., 545 U.S. 844, 867 (2005).

The district court next examined the “endorsement test.” It stressed that “[t]he endorsement test and the second Lemon prong are essentially the same,” and “the same line of reasoning will apply to either standard.” 

Moving to the “coercion test,” the court noted that “within the Third Circuit, the courts recognize that the test ‘focuses primarily on government action in public education and examines whether school-sponsored religious activity has a coercive effect on students.’” It stated that the “Supreme Court has in fact not applied its coercion test outside the public education context.”

Finally, the district court looked at the “legal judgment test” developed by Justice Breyer in Van Orden v. Perry, 545 U.S. 677 (2005). It pointed out that this test was enunciated in a separate concurring opinion that resulted in a plurality decision, and the Third Circuit had not yet decided if Breyer’s analysis prevails. However, the district court pointed out that other federal appellate “circuit courts have concluded that the concurring opinion of Justice Breyer ultimately controls.”

Applying the previously discussed principles to arguments advanced by the parties, the district court found that even though it might later determine that the Plaintiffs’ “position [is] untenable and their requested relief unwarranted[,] a fair reading of the Complaint at this stage of the proceedings leads to the conclusion that the factual allegations provided by Plaintiffs extend beyond conclusory, ipse dixit assertions to at least having stated a facially plausible claim.” It concluded that the “Plaintiffs have adduced sufficient support to permit the Court to draw the reasonable inference that the claim Plaintiffs advance has sufficient merit under our current jurisprudence.”

According to the district court, the Plaintiffs “are entitled to a reasonable time in which they may conduct limited discovery in their attempt to garner support for the cause they pursue.” The district court, likewise, found that “[d]iscovery will also afford [the school district] the opportunity to inquire deeper into whether particular hypersensitivities exist such that the viewpoint of a reasonable observer would differ, uncover the historical background of the monolith, and confirm the claimed nature of the content on the display.”

Freedom From Religion Foundation v. New Kensington-Arnold Sch. Dist., No. 12-1319 (W.D. Pa. Jan. 22, 2013)

[Editor's Note: In September 2012, Legal Clips summarized an article from HeraldStandard.com, which reported that the FFRF had filed suit against NKASD seeking the removal of a monument of the Ten Commandments from the grounds of Valley High School. The article also reported that in addition to the suit against NKASD, the FFRF, along with Americans United for the Separation of Church and State, had joined in a request by a law firm for an unidentified family that was sent to Connellsville Area School District seeking the removal of a Ten Commandments monument outside Connellsville Junior High School. In both cases, the monuments were donated by the Fraternal Order of the Eagles, and both were erected in 1957.]

Arkansas school choice bill would make desegregation a goal, not a mandate

According to the Arkansas News, a bill has been introduced in the Arkansas legislature to replace the state’s public school choice law that placed racial restrictions on where students could attend school. The law, known as the Arkansas School Choice Act, was struck down by a federal district court after a group of parents challenged the anti-segregation provision.

Senate Bill 114 (SB 114), sponsored by state Senator Joyce Elliott, would rewrite the Arkansas Public School Choice Act of 1989 (PSCA) with a set of guidelines for school districts and school boards to use when considering a student’s request to transfer between districts. Under SB 114, a school district could seek an exemption from the school choice law if officials believed transfers could lead to segregation. Last week, state Senator Johnny Key filed Senate Bill 65, which would remove race as a factor in deciding whether students can transfer between districts.

In June 2012, the district court ruled that a raced-based provision in the 1989 PSCA violated the Fourteenth Amendment to the U.S. Constitution, which guarantees equal protection under the law. The state argued that the race-based provision in the state statute was needed to preserve desegregation efforts.

Source:  Arkansas News, 1/23/13, By Rob Moritz

[Editor's Note: In June 2012, Legal Clips summarized the federal district court's decision in Teague v. Arkansas Bd. of Educ., which held that a provision in the PSCA that limits a student’s statutory right to transfer from one public school district to another in the state based on the race of that transfer student violated the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment. Because severing that provision from the PSCA would have undermined the intent of the Arkansas state legislature, the court struck down the PSCA in its entirety.]

California district refuses to disclose discipinary records of accused school shooter

According to reports from local California media outlet KGET 17, during a meeting with parents regarding a January 2013 school shooting, officials of the Taft Union High School District (TUHSD) addressed the parents’ demand to know why the district refused to disclose the disciplinary records of Bryan Oliver, the accused shooter. Kern County School Legal Services said it is because releasing student information is not only against the state’s Education Code, it is also against federal law.

The District Attorney’s office noted it is not a crime to disclose a student’s record, but it is illegal. This means if a school releases the information, it could get sued and/or lose state and federal funding. The Parents said Oliver was suspended for two days last year for having a hit list, and now they want want answers.

TUHSD’s Interim Superintendent said the district is bound by law to protect Oliver’s student records. “We understand that it is very difficult, but we just we just can’t,” said Interim Superintendent William McDermott.

Under the federal Family Educational Rights and Privacy Act (FERPA), as well as California Education Code Section 49076, “a school district is not authorized to permit access to pupil records to a person without written parental consent or under judicial order.” According to Kern County School Legal Services, the district could also lose federal funding.

There are some exceptions for school officials, attorneys, and law enforcement, but not for the public. Attorney Loren Kleier said this is true, but he thinks the district is just being cautious. “I think the district knows there is probably going to be a civil lawsuit out of this and so they are probably playing it close to the vest,” said Kleier.

Source:  KGET.com, 1/23/13, By Staff

[Editor's Note: In November 2007, Legal Clips summarized an article in Education Week, which reported that the U.S. Department of Education had issued simpler guidance for parents and educators aimed at clearing up widespread confusion about when information may be shared under the federal student privacy law. The document tried to help schools more easily identify students who pose a threat of violence and get preventive aid to them. The simpler guidance for understanding FERPA grew out of recommendations by federal officials who studied the fatal April 2007 shootings at Virginia Polytechnic Institute and State University, in Blacksburg, Virginia.]

Federal court orders Mississippi district under 1965 desegregation order to establish an open enrollment procedure

The Bolivar Commercial reports that Glen H. Davidson, Senior U.S. District Court Judge for the Northern District of Mississippi, has issued an opinion in response to the U.S. Department of Justice’s allegation that the Cleveland School District (CSD) continues to practice a form of segregation by operating separate middle schools and high schools, which have nearly 100% black student populations. CSD has been under a court-ordered desegregation plan since 1965.

Judge Davidson noted that magnet schools were a positive force in the school district and that he was pleased with the organization of the schools and their ability to attract students of all races. However, the judge did order CSD to make some changes.

Specifically, Judge Davidson wrote that “although [CSD] has demonstrated some success with its magnet programs, it is now time for this Court to intervene and state its opinion as to a plan that will fall within the parameters of prevailing constitutional and case law. The Court is of the opinion that the attendance zones, … , perpetuate vestiges of racial segregation. The high school and junior high school students should have a true freedom of choice to attend either high school and either junior high school. Accordingly, the Court orders that the heretofore-established attendance zones shall be abolished, thus establishing an open-enrollment procedure.”

Judge Davidson also ordered that the majority-to-minority transfer program, which allows a student of majority race at one school to transfer to a school where the student’s race was a minority, be abolished. He said, “The requirement for his race to be a minority in the transferee school is eliminated, thus permitting any child within the District to enroll in either of the high schools or junior high schools, regardless of the racial composition of the student body at such schools.”

The judge continued: “The Court is of the opinion that this arrangement will permit a true freedom-of-choice enrollment as to both the high school and junior high school grades. In the opinion of the Court, this true freedom-of-choice arrangement will meet the constitutional requirements.”

This case began on July 24, 1965, when numerous individual plaintiffs sued the Bolivar County Board of Education, including CSD, which was known at the time as Bolivar County School District Number 4. The plaintiffs argued that the board had white-only and black-only schools.

Source:  The Bolivar Commercial, 1/26/13, By Denise Strub

[Editor's Note: In November 2012, Legal Clips summarized an Associated Press article in the Times Union, which reported that Judge Davidson would be hearing arguments in December 2012 on proposals to desegregate two schools in CSD. In May 2012, CSD had filed its proposal with the federal court to desegregate the two schools by introducing magnet programs at both schools to help attract white students. However, in September 2012, the U.S. Department of Justice (DOJ) objected to the plan, claiming CSD's proposal would “not integrate [the two schools] as a whole, but [would] create insular magnet programs in each school that meet specified demographic targets.” DOJ wants the court to order CSD to come up with a new plan that “ensures [the two schools] will be fully integrated by the beginning of the 2013-2014 school year.”]

Connecticut board approves policy allowing searches of student laptops

The Fairfield Daily Voice reports that the Fairfield Board of Education (FBOE) has approved a new policy for student Internet use. The rules stipulate that students’ activities on school-owned computers and files stored on school servers “should not be considered private,” meaning those devices can be searched at any time.

Students who bring their own computers and Internet-ready devices could also face searches, but only if teachers or administrators suspect that the student is breaking a rule. In those cases, the teacher would only be permitted to look for problems related to “the initial basis for the reasonable suspicion.”

The current policy prohibits students from downloading copyrighted or obscene materials, harassing or bullying other kids, or conducting illegal activities on school Internet connections. The new policy provides teachers with the authority to search school-owned or personal computers to enforce those rules.

The board initially considered a policy that would have provided for no privacy on any computer within school grounds, but dropped it after the American Civil Liberties Union (ACLU) raised objections. Board member Perry Liu, who suggested even more revisions, said that ACLU attorney Al McGuire offered to review the policy with the school board to protect against potential lawsuits.

Policy Committee chair Jennifer Maxon Kennelly, however, noted that the policy was already approved by the Board of Education’s own attorney. Fellow board member Tim Kery said he would be against writing a policy with the help of a “special interest group.” “I’m comfortable with … our legal counsel’s advice that we pay for,” Kery said. “I’d be very uncomfortable inviting a special interest group to write our policies for us.”

Source:  Fairfield Daily Voice, 1/30/13, By Greg Canuel

[Editor's Note: In April 2012, Legal Clips summarized an article from the Associated Press in Education Week, which reported that a Garrett City, Indiana, student’s multiple use of the F-word in a late-night tweet had led to his expulsion from Garrett High School. Austin Carroll argued that his profane rant should not have subjected him to discipline by school authorities because it occurred after school hours at home on his own computer. GHS officials contended that Carroll used either his school-issued computer or the school network.]

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