New Jersey Coalition for Bullying Awareness and Prevention



from National School Boards Association, Legal Clips, 10/3/12

University-run school sued for failure to protect Indiana elementary student from peer sex abuse

As reported by the Associated Press (AP) in the Huffington Post, the parents of a central Indiana boy are suing Ball State University, alleging their son was subjected to “horrific sexual abuse” by fellow second-graders at a university-run school who they say acted out scenes from pornographic videos they downloaded on school computers. The lawsuit says the boy was 8 years old when he was forced to engage numerous times in sex acts with other children at Burris Laboratory School in Muncie in late 2011. Four second-grade boys, including the alleged victim and another student described as the “ringleader,” are believed to have been involved in the sex abuse, the complaint alleges.

Ball State spokesman Tony Proudfoot said in a written statement that the university learned in December 2011 of allegations of inappropriate behavior among four second-graders at the school. He said the matter was “reported promptly” to local law enforcement and the Indiana Department of Child Services.

Proudfoot would not elaborate on the alleged inappropriate behavior, but he said the claims in the lawsuit “bear no resemblance to the evidence or results of the investigations of the university or those of the agencies to which it was reported.” Proudfoot’s statement noted that “no adults were alleged to be perpetrators of abuse of any child in this matter” and said that the university will “vigorously defend these unwarranted allegations.”

Chief Deputy Prosecutor Judi Calhoun confirmed Tuesday that the sheriff’s department and prosecutor’s office investigated the allegations. She said she could not comment on any findings because the matter involved juveniles and such cases are not open to the public. “All I can say in regard to the matter is that it was investigated,” Calhoun said.

Jason Delk, an attorney for the boy’s parents, also said he could not comment on what prosecutors or police found. But he said the boy suffered psychological and emotional trauma. “He’s absolutely a victim. I don’t know that he’s the main victim, but he’s certainly a victim of the sexual abuse that was going on at Burris,” Delk said Tuesday.

The lawsuit alleges the students had “unfettered access” to the Internet at school and viewed pornographic videos on school computers and iPads. After viewing those video, the lawsuit states, “the students would then ‘act out’ the scenes” on each other. All of the boys were students in the same second-grade class and were allowed by their teacher to go on long, unsupervised restroom breaks, the lawsuit states. Most of the alleged sex acts took place in bathrooms, but some occurred in the school’s library and in classrooms, the suit contends.

The suit, filed Friday, seeks compensatory and punitive damages. It alleges the boys engaged in at least 11 separate instances of sexual abuse and molestation over three months in late 2011. Delk said all of the boys were around 8 years old. He said the suit was filed “as a measure of last resort” after discussions with Ball State officials failed to result in “an understanding.” He declined to elaborate.

Source:  The Huffington Post, 10/02/12, By Rick Callahan (AP)

[Editor's Note: In May 2012, Legal Clips summarized an article from the Miami Herald in Education Week, which reported Governor Rick Scott had signed into law a bill that requires anyone to report known or suspected cases of child sex abuse. The “Protection of Vulnerable Persons” law, which took effect on October 1, 2012, also gives Florida the toughest mandatory reporting requirements in the nation for sex abuse violations on schools and university campuses, say victims advocates.

In January 2011, Legal Clips summarized a decision by a federal district court in Washington in J.B. v. Mead Sch. Dist. No. 354, in which had ruled that a student alleging peer sexual harassment has failed to state a valid Title IX claim or a § 1983 claim based on deprivation of his substantive due process rights. The court concluded that the student had failed to allege sufficient facts to show that school officials had actual knowledge of the sexual abuse that occurred.]

Tags: bullying, Indiana, Internet access, sexual abuse, student safety

New Jersey district enters resolution agreement with OCR in disability discrimination case

As reported in a press release on , the U.S. Department of Education’s (ED) Office for Civil Rights (OCR) has entered into a resolution agreement with the East Orange School District in New Jersey to resolve compliance concerns identified by OCR, under Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans with Disabilities Act of 1990 (Title II), during its investigation of the district’s special education program. The resolution will ensure that special education students in this largely minority school district are not inappropriately separated from their peers during the school day. OCR did not make a determination of whether or not the district was in compliance with Section 504 and Title II.

“Whenever possible, students with disabilities should be educated in regular educational programs in our nation’s public schools,” said Russlynn Ali, Assistant Secretary for Civil Rights. “I applaud the steps the East Orange School District has agreed to take to address immediate concerns and to put systems in place to help ensure its compliance with Section 504 and Title II. We look forward to continuing to work cooperatively with the district to better ensure a fair, equal and supportive environment for all students.”

OCR initiated a compliance review in 2011 to assess whether the district discriminated against qualified students with disabilities by inappropriately placing them in self-contained classes instead of regular education classes. Section 504 and Title II require school districts to place disabled students in the regular educational environment unless the district demonstrates that the education of the disabled student in the regular environment cannot be achieved satisfactorily even with the use of supplementary aids and services.

In its Letter of Findings, OCR’s investigation revealed that a high number of students with disabilities were placed in the district’s self-contained classrooms. Specifically, during school year 2009-2010, 63 percent of the district’s 1,395 disabled students were in self-contained placements. During school year 2010-2011, 64 percent of the district’s 1,462 disabled students were placed in self-contained placements, and 52 percent of its 535 students with learning disabilities were placed in self-contained settings. OCR’s review of special education files revealed that, in many instances, the district did not demonstrate that these students could not be satisfactorily educated in the regular educational environment with the use of supplementary aids and services.

Source:  , 10/1/12, By Staff

[Editor's Note: In February 2012, Legal Clips summarized guidance documents issued by ED's Office for Civil Rights, specifically a Dear Colleague letter and a Frequently Asked Questions document, on the requirements of Title II and Section 504 in elementary and secondary schools, given the changes to those laws made by the 2008 ADA Amendments Act. The Amendments "broadened the meaning of disability and, in most cases, shifts the inquiry away from the question of whether a student has a disability as defined by the ADA and Section 504, and toward school districts' actions and obligations to ensure equal education opportunities."]

Oakland district enters five-year agreement with OCR to address disproportionate suspension rates of black students

The San Francisco Chronicle reports that in the face of a civil rights investigation for disciplining black students more harshly than their white peers, the school board for the Oakland Unified School District recently voted to accept five years of federal monitoring as the district attempts to address the problem.

The agreement with the U.S. Department of Education (ED) shuts down the investigation, but it now means that at least until 2017, federal officials will be monitoring 38 Oakland schools as they work to reduce the disproportionate suspension of minority students, especially African American boys.

Almost 20 percent of the district’s African American males were suspended at least once last year, six times the rate of white boys. In middle school, 1 out of every 3 black boys was suspended at least once. “Historically, they have been the whipping boys in our district,” Chris Chatmon, Executive Director of the district’s African-American Male Achievement Office, said in a presentation to the board. “We are here today to ante up and reclaim our children.”

The 28-page resolution approved by the board in a 6-0 vote outlines a five-year plan to address the needs of students in the 38 schools, including a requirement to offer mentoring, teacher training, parent education and programs to address the impact of trauma and community violence on student behavior.

District Superintendent Tony Smith said the agreement is a powerful and positive step that will force Oakland – regardless of who is elected to the school board or who is running the schools – to stay on track in reducing suspensions. “The agreement codified efforts already in place,” he said. “Everything that’s in there, the board has already approved.” Several programs are already in place to mitigate behavioral problems in classrooms and fights on the playground, Smith said.

While district officials are optimistic about programs already in place, they acknowledged it will not be easy to implement the five-year agreement. The plan will cost the district millions to implement, which includes comprehensive and frequent documentation to prove compliance with the federal Civil Rights Act of 1964. Smith said he plans to ask foundations and community groups focused on discipline issues to help back the plan, which he believes will be a national model for other districts struggling with disproportionate suspensions.

ED’s Office for Civil Rights initiated the investigation in May 2012 after previous inquiries within the district over the same issues in the late 1990s and in 2006 lapsed without resolution. Oakland now shows promise with its renewed effort already in place to combat suspension rates, officials at the Office for Civil Rights said.

Oakland is just one of hundreds if not thousands of districts across the country with disproportionate rates of suspension and expulsion between black students and their white peers. For example, in the Manteca Unified and Jefferson Union High districts, 60 percent of African American students were suspended at least once in the 2009-10 school year, compared with 33 percent and 21 percent of whites, respectively, according to an August report by the Civil Rights Project at UCLA.

Source:  San Francisco Chronicle, 9/27/12, By Jill Tucker

[Editor's Note:  In August 2012, Legal Clips summarized an article in the Courier-Post, which reported that the Camden Board of Education in New Jersey had agreed to pay $500,000 to settle a suit brought by seven Hispanic elementary school students, who were made to eat lunch on the floor as punishment for spilling a jug of water. The February 2008 incident stirred claims of bias and underscored tensions between the city’s black and Hispanic communities.

In July 2011, Legal Clips summarized an article in The Capital, which reported that the Anne Arundel County chapter of the NAACP had filed a formal civil rights complaint with ED that alleged African-American students continued to be disciplined in numbers out of balance with their enrollment. The NAACP complaint maintained that the disparity in minority disciplinary rates violated the 1964 Civil Rights Act and fell short of goals outlined in an 2005 agreement between county schools and civil rights advocates mediated by the Department of Justice Community Relations Services.

In January 2011, Legal Clips summarized an article in the Lebanon Daily News, which reported that the Pennsylvania chapter of the NAACP and the Public Interest Law Center of Philadelphia (PILC) had announced plans to file a lawsuit challenging Lebanon School District’s (LSD) truancy policy on the grounds it unfairly targeted minorities. The federal suit asked the court to force LSD to stop collecting and repay 500 truancy fines that the organizations alleged were excessive and issued illegally. The suit claimed that LSD levied $1.3 million in truancy fines in the past eight years, including almost $500,000 in 2008-09 school year. The fines were disproportionately levied against minorities, according to the charges.]

Tags: California, discipline policy, Office for Civil Rights, race discrimination, student discipline, suspension

9/20/12

Parent sues South Carolina district seeking installation of video cameras on buses

The Beaufort Gazette reports that the mother of two students, who she claims have been bullied, is suing Beaufort County School District (BCSD) and Durham School Services, the bus company, charging they have not done enough to protect her children. Christina Chandler, who had petitioned BCSD to put cameras on school buses, says she will now look to the courts to keep her children from being bullied.

The suit alleges that Chandler’s 6-year-old son and 8-year-old daughter have been repeatedly bullied on the bus since school began this year. Among the suit’s allegations are that Chandler’s children have been shoved into the aisle, elbowed, and kicked while on the bus. The suit also claims her daughter has been punched in the face, choked, scratched, had her hair pulled, and been called names.

The lawsuit asks that the school district and bus company take immediate action to stop the bullying. It also asks for a jury trial and compensation for emotional damages, lost wages, and medical bills.

Chandler recently presented a petition to the Beaufort County Board of Education in support of installing cameras on school buses. In response, the school board created a committee that has two months to study the issue and make a recommendation. Chandler has said 60 days is too long. “I’m doing everything that I can,” she said. “I’ve been trying to work with the school, and there hasn’t been any changes. No one has been willing to stop what has been happening.”

Source:  The Beaufort Gazette, 9/17/12, By Rachel Heaton

[Editor's Note: In July 2011, Legal Clips summarized an article in the Arizona Daily Star, which reported that Tucson Unified School District’s (TUSD) board had voted unanimously to install 300 video cameras on its school buses at a cost in excess of $625,000. A 2008 management audit recommended that TUSD reduce bus monitors by 10 percent and install cameras on buses without monitors. Such a move could have saved the district nearly $500,000 a year. 

In July 2010, Legal Clips summarized an article in the Ithaca Journal, which reported that a parent had filed suit against the Trumansburg Central School District (TCSD), in New York, for failing to protect her son from bullying that took place on a school bus after school. The events were captured by a video camera on the bus, which the complaint states shows the bus driver repeatedly looking in his rear view mirror and failing to stop the interaction between the two students.]

9/10/12

Mother of student who committed suicide due to peer harassment based on ethnicity and sexual orientation files wrongful death action against Indiana district

As reported on Wisconsin , the mother of a student who committed suicide after being harassed and bullied by classmates for several years has filed a lawsuit. The suit alleges that the response of Greensburg Junior High School officials to harassment led Billy Lucas to take his life.

The suit was brought by Ann Lucas, Billy’s mother, and the defendants are the Greensburg Community School System and four employees – former Greensburg Junior High School principal Rodney King, current principal David Strouse and teachers Iris Ramp and Darci Kovacich. The suit, filed in federal court in Indianapolis, alleges that Billy was “subjected to relentless harassment, ridicule and bullying” at school for several years and that the harassment was over Lucas’ ethnicity and sexual orientation.

The suit states that Billy “had a right to be free from sexual harassment and discrimination based on sexual orientation while in any educational program or activity that receives federal financial assistance.” The complaint claims that the school employees knew about the harassment and failed to take steps to protect the boy. The employees also allegedly participated in the harassment.

The suit, charging wrongful death, states, 
”The District failed to take reasonable measures to prevent (Billy Lucas) from being subjected to bullying when he was at school or a school-sponsored activity. As a direct result of the District’s negligence, (Billy Lucas) committed suicide.” Ann Lucas is asking for compensatory and punitive damages, attorneys’ fees and other associated costs.

Source:  Wisconsin , 9/10/12, By Staff

[Editor's Note: In June 2012, Legal Clips summarized a decision by a Texas federal district court in Estate of Asher Brown v. Cypress Fairbanks Indep. Sch. Dist., which granted the school district’s motion for reconsideration, dismissing the parent’s Section 1983 due process claim which alleged that through the school district's failure to enforce anti-bullying policies at the student’s middle school, it failed to protect the student from harm, who ultimately committed suicide.]

9/6/12

Gay student files discrimination suit, claims Indiana district failed to stop bullying

The Indianapolis Star reports that Darnell Young and his mother, Chelisa Grimes, have filed suit against Indianapolis Public Schools (IPS) for a series of alleged bullying incidents that led Young to fire a stun gun inside Arsenal Technical High School (“Tech”) this past spring to scare away bullies. According to Young’s attorneys, the school district discriminated against Young because, despite repeated complaints, IPS did not protect him from bullies who taunted him for being gay.

The suit charges that the assailants used homophobic slurs, spat at Young and threw rocks and glass bottles at him, but school administrators blamed Young, who carried his mother’s purses and wore her jewelry to school. “Rather than take effective measures to protect him, school staff told him that he was to blame for the harassment because of his appearance and told him to change his dress and behavior to conform to stereotypical ideas of masculinity and to be less ‘flamboyant,’” the suit says.

Young’s attorneys also claim IPS violated Young’s civil rights and the U.S. Constitution because, among other things, IPS discriminated against him based on his sexual orientation and tried to get him to change the way he dressed, a violation of his First Amendment right to freedom of expression. IPS, the school board, IPS Superintendent Eugene White, Tech Principal Larry Yarrell, and Assistant Principal Debra Barlowe are named as defendants.

The incident that led to Young’s expulsion occurred after his mother gave him the stun gun to protect himself. He fired it in the air during a passing period in April 2012 when six kids allegedly approached him and threatened to beat him up. Young was expelled until January 2013 for having the device, but in August 2012, IPS reduced the penalty so he could start the fall semester on time. However, IPS said he would have to go to an alternative school. Young declined to come back to IPS and is attending Indianapolis Metropolitan High School, a charter school, for his senior year.

The suit also questions whether IPS followed proper expulsion procedures. It alleges that Young was told he would have to “dress and behave in a manner that conformed to Principal Yarrell’s notion of appropriate masculinity” if he wanted to avoid expulsion. The school has not punished the people who allegedly threatened him because Young could not identify them, Yarrell said this spring.

Source:  Indianapolis Star, 8/31/12, By Carrie Ritchie

[Editor's Note: Young's suit contains seven federal claims and one state law claim. The federal claims include: Title IX based on sex discrimination, including sex stereotyping; Fourteenth Amendment Equal Protection Clause - based on sexual orientation; Fourteenth Amendment Equal Protection Clause based on sex; First Amendment - denial of free speech and expression; Fourteenth Amendment Due Process Clause - denial of procedural due process; Fourteenth Amendment Due Process Clause - denial of substantive due process - arbitrary state action; and Fourteenth Amendment - denial of substantive due process - deprivation of liberty. The suit was filed in the U.S. District Court for the Southern District of Indiana.

In July 2012, Legal Clips summarized an article in The Register-Guard, which reported that school districts across the country have faced lawsuits in recent years for failing to do more to prevent student-on-student bullying and harassment. Some state and national experts say the new expectations, while well intended, have invited lawsuits, placing school officials in a “damned if you do, damned if you don’t” situation. As the local lawsuits suggest, school districts can now be sued for doing what they have previously been sued for not doing.]

7/19/12

Minnesota district settles with African-American student for allowing students to celebrate “Wangsta Day” during homecoming week

As reported on , the Red Wing School District has agreed to a settlement, pending court approval, of a suit brought by an African-American student over an informal homecoming week ritual mocking African-Americans. The federal lawsuit was brought by Quera Pruitt, a former student, in August 2011, alleging that about 70 Red Wing High School students engaged in an exercise in bigotry and bullying by wearing baggy pants and “do-rags”, and flashing gang signs on Wednesday of homecoming week.

The day had become known among students as “Wednesday Wigger Day” or “Wangsta Day.” According to the suit, the racially offensive activity sent Pruitt into a “deep depression” that almost prompted her to quit school. Although school administrators did not sanction the event, which dated back to at least 2007, the suit charged that they “failed to take adequate steps to address the conduct.”

Pruitt’s attorney, Joshua Williams, confirmed that the case had been settled, but declined to discuss details. The school board voted last week to settle the case.

Source:  , 7/14/12, By Staff

[Editor's Note: In December 2012, Legal Clips summarized the federal district court opinion in Pruitt v. Anderson, which held that Pruitt had stated a valid Title VI claim against the school district, but not the superintendent in his individual capacity, for a racially hostile environment. However, the court  rejected her equal protection claim under 42 U.S.C. § 1983 on the ground that it was too vague to provide the defendants with sufficient notice of the alleged unconstitutional conduct.]

7/12/12

New Jersey not fully funding schools for reimbursements to implement anti-bullying legislation

As reported on , New Jersey Department of Education data reveals school districts and charter schools requested almost $5 million in reimbursements for the cost of implementing the state’s new anti-bullying law in 2011-12. However, schools will receive only 20% of that because the state authorized only $1 million for the program, leaving the law open to another legal challenge as an unfunded state mandate.

Statewide, 371 public school districts and charter schools applied for reimbursement, slightly more than half of the total in the state. The state Council on Local Mandates ruled in January 2012 that the anti-bullying law was unconstitutional because New Jersey did not provide any money to implement it. State officials had said districts could implement the law using existing staff and funding, but the Allamuchy Township School District in Warren County disagreed and filed a complaint with the Council.

In March 2012, Governor Chris Christie said the state would provide $1 million in grants so the law would remain valid. But even then, a survey by the New Jersey School Boards Association (NJSBA) found that districts would likely need much more, with more than 200 districts saying they would each need at least $2 million. The majority of districts said funds would be needed for training and personnel, and that other programs would be neglected so that existing staff could handle bullying complaints.

Frank Belluscio, NJSBA Spokesman, said the Association is reviewing the issue and looking into whether it would support a new challenge to the law. “It is hard to determine an actual value because, in addition to money spent, there was the reallocation of resources like counseling that took people away from other duties,” he said.

In March 2012, many district officials said that since there was no funding, they had simply reallocated staff to handle the bullying issues. But most had at least some expenses for staff training and supplies. Some districts paid staff an additional stipend to be the designated anti-bullying coordinator, and district officials said investigating complaints was a very time-consuming process.

Source:  , 7/5/12, By Diane D’Amico

[Editor's Note: The March 13, 2012 edition of NJSBA's "School Board Notes" provided the survey results referenced in the above article. According to NJSBA, 35.9%, 206 out of 573, school district business administrators, or their designees, responded to the survey. Among the results: 88% responded that the anti-bullying law had created additional, unanticipated costs for their school districts; 74% responded the law had created additional (unbudgeted) costs for supplies, materials, and/or software.

In February 2012, Legal Clips summarized an Associated Press article in the New Jersey Herald, which reported that the New Jersey Council on Local Mandates had ruled that the state’s tough new anti-bullying law constituted an unfunded mandate for local school districts and must be amended in order for the law to remain in effect. The Council ruled 7-2 that the law requires local school districts to provide training and personnel but does not pay for them.]

7/12/12

School districts increasingly becoming targets of student-on-student bullying and harassment suits

According to The Register-Guard, school districts across the country have faced lawsuits in recent years for failing to do more to prevent student-on-student bullying and harassment. Some state and national experts say the new expectations, while well-intended, have invited lawsuits, placing school officials in a “damned if you do, damned if you don’t” situation. As the local lawsuits suggest, school districts can now be sued for doing what they have previously been sued for not doing.

The irony is that school districts are mandated by law to impose serious consequences for harassment and bullying in order to prevent hostile education environments for victims of such conduct, several education experts said. “The risk management topic of the year is the issue of harassment, bullying and communication with parents,” said Geoff Sinclair, Director of Claims for the Special Districts Association of Oregon. The organization administers Oregon school districts’ self-insurance fund for legal claims. “Schools are often put into a very difficult situation where, if they discipline Johnny a certain way for perceived harassment, they’re going to get sued. I think most districts are doing what they believe is best for kids and letting the chips fall where they may.”

Oregon School Boards Association (OSBA) Attorney Morgan Smith called the issue “very tough ground for schools, because you do see bullying on the forefront of everybody’s mind. And there’s nothing new about parents getting upset over discipline for their kids.”

Though there are no solid statistics, anecdotal reports indicate an “obvious increase” in the number of lawsuits filed against school districts over students bullying other students, according to NSBA General Counsel Francisco Negrón. Negrón publicly raised concerns about the financial impact of such suits after the U.S. Department of Education (ED) issued an advisory letter to the nation’s school administrators in October 2010, urging schools to be more aggressive in eliminating student-on-student harassment and the “hostile environment it creates.”

Negrón wrote to ED in December 2010 expressing concern that ED was advocating a more “expansive reading” of schools’ legal role in preventing harassment. He said he feared the step would “invite misguided litigation that needlessly drains precious school resources and creates adversarial climates that distract schools from their educational mission.”

In particular, Negrón raised concern over ED’s suggestion that school districts “can and must” consider comments made off school grounds when disciplining students. OSBA Attorney Smith shared that concern. “School officials don’t want students to be bullied,” he said, but “there are also a number of rights that an alleged bully has. Free speech off-campus is one of those rights.”

“It’s difficult for schools to draw a line between what is something affecting kids at school and what is off-campus conduct by individual students,” Smith added. “Schools can only really take care of what happens inside the schoolhouse. They can’t really police what happens at the mall on the weekend or in cyberspace at night.”

Izzy Kalman, a New York school psychologist, has become a nationally recognized critic of policies requiring adult legal intervention in student verbal altercations. “Schools are being held responsible for the impossible: making kids stop fighting with each other,” he said. “It’s very important to distinguish between criminal behavior and bullying…. This is the purpose of freedom of speech. It’s only words. We don’t get punished for words.” He contends that most anti-bullying policies contain well-intended but ineffective punishments that backfire and often escalate bullying.

University of Oregon Special Education Professor Rob Horner agrees with Kalman that education and prevention are the best remedies for student-on-student harassment. Horner and two colleagues developed a program, Bully Prevention in Positive Behavior Support, now used by 17,000 schools across the country. It focuses on changing school cultures by teaching children what respectful behavior is, and that everyone has a responsibility to stop disrespectful behavior when they see it.

Source: The Register-Guard, 7/3/12, By Karen McCowan

[Editor's Note: In May 2012, Legal Clips summarized an article in The Washington Post, which reported that to help public schools with balancing school safety and religious freedom, a broad coalition of educators and religious groups, from the National Association of Evangelicals to the National School Boards Association, has endorsed a new pamphlet, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,” which was authored chiefly by the American Jewish Committee.]

7/12/12

New Jersey district temporarily withheld two seniors’ diplomas because graduation speech may have violated state’s anti-bullying law

According to the Associated Press (AP) as reported on , Eric Dominach and Mike Sebastiano, two Middletown High School South senior class presidents, were initially denied their diplomas because school district officials believed their graduation speech might have violated New Jersey’s anti-bullying law. Though they subsequently obtained their diplomas, Dominach and Sebastiano believe the district owes them an apology for unfairly labeling them bullies.

The students claim they were denied their diplomas after delivering a graduation speech that included a “snarky” comment or two about the district. They say administrators informed them after the fact that the speech, which also mentioned students by name, might have violated anti-bullying guidelines.

District officials say they were looking out for the interests of people who had been mentioned in the speech; but the teens believe officials were just “miffed” the district had been the target of some of the ribbing. Meanwhile, individual rights advocates say the incident raises a familiar question about whether anti-bullying policies in the state infringe on freedom of speech.

Although Will Creeley, Director of Legal and Public Advocacy at the Philadelphia-based Foundation for Individual Rights in Education, did not comment specifically on the Middletown incident, he said the broad nature of New Jersey’s Anti-Bullying Bill of Rights Act, signed into law in 2011, has paved the way for schools and districts to use their policies to silence critics.

Middletown Superintendent William George, on the other hand, said only that a version of the speech had been agreed upon and approved, and the students did not deliver that version. “There were students and staff mentioned and portrayed in a less than positive light, or a negative light,” George said. “That warranted an investigation to make sure nobody was victimized.”

Dominach and Sebastiano say Principal Patrick Rinella asked them before graduation to delete parts of the speech, including a reference to the school’s “50 other vice principals” – a joke about the school having multiple vice principals. The seniors also were asked to delete a gibe about the difficulty they had trying to get into the National Honor Society, despite stellar grades. However, the students restored those and other comments at the last minute and kept in jokes about classmates they say the district had never attempted to censor.

When Dominach and Sebastiano went to the high school after the graduation ceremony to pick up their diplomas on June 18 with the rest of their classmates, they were told the documents would be withheld. The next day, the families were told all students and staff named would be interviewed to determine whether they felt bullied, and whether charges might be filed, the families said, though no one had filed a complaint.

The district held the diplomas until June 20, just before a Board of Education meeting at which parents and students had been planning to protest. Creeley said he believes the Dominaches did the right thing by bringing attention to what they believe was an attempt at censorship so that, if unwarranted, it is less likely to happen again. “The right way to do it is to raise a hue and cry about it, and make sure that everybody is watching,” Creeley said.

Source:  , 7/4/12, By Alesha Williams Boyd (AP)

[Editor's Note: In May 2012, Legal Clips summarized an article in The Washington Post, which reported that to help public schools balance school safety and religious freedom, a broad coalition of educators and religious groups, from the National Association of Evangelicals to the National School Boards Association, has endorsed a new pamphlet, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,” which was authored chiefly by the American Jewish Committee. Francisco M. Negrón, NSBA General Counsel, pointed out that the pamphlet can fill a need the judicial system has not: “It talks about the difference between what constitutes a personal attack, and the expression of an idea,” said Negrón.]

6/21/12

Teacher agrees to resign in exchange for Arizona district dropping disciplinary charges, but insists she was the victim of retaliation

The Republic reports that Sarah Green, an elementary school teacher, has agreed to resign her position with Gilbert Public Schools (GPS) in return for district officials dropping 20 disciplinary charges against her. Green, who had been on paid leave for the past six months, insists she did nothing wrong and that she was the victim of administration retaliation for reporting student bullying, questioning why it was never addressed, and opposing racial discrimination against another teacher who resigned.

Green was removed from her Highland Park Elementary School third grade class on November 22, 2011. GPS subsequently filed 20 personnel charges against her, such as violating school board policies and her employment contract, including policies on staff conduct, gifts to and solicitations by staff members, staff conduct with students, professional staff duties and responsibilities, and unprofessional and immoral conduct.

District officials recommended the school board approve Green’s dismissal.  The school board took the first step by approving the charges on December 6, 2011. However, when Green exercised her right to request a hearing and refused to resign, she was put on paid leave through the rest of the 2011-2012 school year, but the hearing  never took place.

Green said the problems began in February 2011 when she reported student bullying in her classroom. Green said she was moved to another school “involuntarily” in retaliation for her report. She questions why she was taken out of her classroom mid-year, and why a hearing was never held.

As part of the settlement, Nikki Blanchard, GPS’ associate superintendent, gave Green a letter saying she is “eligible for rehire,” which is important for a teacher to seek employment elsewhere in the state. GPS also agreed to give Green $12,000 for her attorney fees. Green and her parents, Denise and Tom Green, contend GPS agreed to withdraw the charges in order to avoid a hearing. According to her parents: “Withdrawing charges shows the district never had reason to disrupt Sarah’s classroom in the middle of the school year.”

Source:  The Republic, 6/8/12, By Hayley Ringle

[Editor's Note: In March 2012, Legal Clips summarized an article in The Washington Post, which reported that six former and current teachers at Kemp Mill Elementary School had filed suit against Montgomery County Public schools for alleging bullying by the school’s principal.]

6/1/12

Federal district court dismisses parent’s due process claim based on student’s suicide after being bullied at school

Estate of Asher Brown v. Cypress Fairbanks Indep. Sch. Dist., No. 11-cv-1491 (S.D. Tex. May 23, 2012)

Abstract: A federal district court in Texas has granted a school district’s motion for reconsideration, dismissing a parent’s Section 1983 due process claim which alleged that through its failure to enforce anti-bullying policies at the student’s middle school, the school district failed to protect the student from harm, who ultimately committed suicide.

The district court had previously ruled that the parent had stated a Section 1983 due process claim and a harassment claim under Title IX. However, in relying on an intervening decision of the U.S Court of Appeals for the Fifth Circuit in Doe v. Covington County School Board, 2012 WL 976349 (5th Cir. Mar. 23, 2012), the federal district court here agreed with the school district that that argument could no longer serve as the foundation for the parent’s claim. 

Because the school district only requested reconsideration of the parent’s Section 1983 claim, the federal district court did not address the parent’s Title IX harassment claim in its decision.

Facts/Issues: Asher Brown, a student at Hamilton Middle School, was subjected to constant bullying by other students. His mother, Amy Truong, and Asher reported the bullying incidents to school officials repeatedly, which Truong claims went unanswered.  After Asher committed suicide, Truong filed suit, on her own behalf and on behalf of Asher’s estate, against Cypress Fairbanks Independent School District (CFISD) alleging that, through its acts and omissions, CFISD failed to protect Asher from harm at school.

Truong originally brought claims under the Rehabilitation Act and Title IX, as well as First Amendment, Equal Protection, and Due Process claims pursuant to  Section 1983. Upon CFISD’s motion to dismiss all claims, the district court let Truong’s Section 1983 due process and Title IX claims stand. Subsequently, the Fifth Circuit issued its decision in Covington, which held that the school district had no constitutional duty to protect the plaintiff-student from non-state actors, and thus Doe had failed to state a due process claim as a matter of law.  In light of Covington, CFISD filed a motion for reconsideration of the district court’s previous ruling related to Truong’s Section 1983 due process claim, asking the district court to dismiss the claim as a matter of law.

Ruling/Rationale: The district court granting CFISD’s motion for reconsideration, and dismissed Truong’s Section 1983 due process claim. The district court agreed with the school district that after Covington, the existence of explicit CFISD policies mandating action on the part of the school district in the face of student-on-student bullying did not give rise to a duty for CFISD to protect Asher from bodily harm and threats to his bodily integrity.

The district court rejected the plaintiff’s attempt to distinguish the present case from Covington on the basis that unlike the defective policy in Covington, CFISD’s existing policy would have been effective if enforced. The district court found this to be a distinction without a difference. It stated: “Regardless of whether the issue is existence of a policy or enforcement of a policy, CFISD policies promising school action to prevent student-on-student bullying cannot serve as a basis for Asher’s constitutional due process rights.” The district court emphasized that because the policies at issue sought to govern the behavior of non-state actors, i.e., students, the school district’s failure to enforce such policies did not result in a violation of Asher’s constitutional rights.

The district court stated that Covington “makes clear that any duty to protect must be moored to a special relationship.” However, at the motion-to-dismiss stage, Truong did not offer a special relationship theory of liability.  Notwithstanding, the special relationship theory would not have been available to Truong, since, as Covington clarified, the special relationship exception applies only to the following three scenarios: (1) incarceration, (2) involuntary institutionalization, and (3) the placement of children in foster care. The district court reiterated Covington‘s statement that “[w]ithout a special relationship, a public school has no constitutional duty to ensure that its students are safe from private violence.” 

Truong then argued that the district court may allow her claim to proceed based solely on the plain language of Section 1983, even in the absence of a special relationship. To state a valid claim under Section 1983, the district court identified that a plaintiff must allege a violation of a right secured by the U.S. Constitution or laws of the United States, and demonstrate that the alleged deprivation was committed by a person acting under color of state law. 

The district court noted that the Fifth Circuit has recognized a student’s right to bodily integrity, but that right is only violated where a state actor deprives the student of that right. Here, the violation of Asher’s right to bodily integrity was violated by other students, not CFISD staff. Since CFISD did not have a constitutional duty to protect Asher from non-state actors, and, under Covington, CFISD had no such duty in the absence of a special relationship, the district court held that Truong “has not—and cannot—allege such a special relationship, [and] there is no foundation for stand-alone statutory liability under § 1983.”

Estate of Asher Brown v. Cypress Fairbanks Indep. Sch. Dist., No. 11-cv-1491 (S.D. Tex. May 23, 2012)

[Editor's Note: In March 2012, Legal Clips summarized the Fifth Circuit's en banc decision in Covington, which held that a school district did not have a duty to protect an elementary school student from sexual abuse by a private actor based on the constitutional theory that the school had a special relationship with the student. The Fifth Circuit therefore rejected the student’s claim on that theory, as well as the claims alleging a state-created danger and municipal liability.

In May 2012, Legal Clips summarized an article in the ATLAW Daily Report, which reported that a federal judge in Georgia had determined that a high school student who hanged himself in 2009 likely was subjected to severe and pervasive bullying throughout his high school career, but that the school district had responded effectively every time school administrators were alerted that the teen had been bullied. The federal district court granted the school district's motion for summary judgment, finding that school administrators had not demonstrated a deliberate indifference to the student's plight, and had not violated his civil rights by failing to shield him from school bullies.

In that editor's note, Legal Clips said the judge also rejected the parents' Section 1983 claim based on an alleged violation of their student's substantive due process rights. The federal judge found there was no custodial relationship between the student and school officials, or a state-created danger that would have overcome the general rule that a governmental entity is not liable for the acts of third parties. The judge also concluded that the school district could not be held liable on the theory that it failed to adequately train its employees and protect the student from harassment. Although such alleged conduct may have been negligent, it was not conscience-shocking to give rise to a constitutional claim.]

5/24/12

Federal court rules Georgia district is not liable for bullying of student who committed suicide

In a suit that has received national attention, the ATLAW Daily Report says a federal judge in Rome, Georgia, has determined that a high school student who hanged himself in 2009 likely was subjected to severe and pervasive bullying throughout his high school career, but that the school system had responded effectively every time school administrators were alerted that the teen had been bullied. U.S. District Court Judge Harold Murphy granted Murphy County School District’s (MCSD) motion for summary judgment, finding that school administrators had not demonstrated deliberate indifference to the plight of Tyler Long, and had not violated his civil rights by failing to shield him from school bullies.

Tyler’s parents, Tina and David Long, filed suit against MCSD and the high school’s principal in 2010, claiming that the school system was liable for their son’s suicide because he was bullied to death. MCSD’s attorneys countered that Tyler’s psychiatric records, multiple mental health issues, and a suicide note that referred to his personal anguish over his relationship with his parents – not bullying, drove Tyler to suicide.

Judge Murphy did not rule on the ultimate cause of Tyler’s suicide. The judge acknowledged that the evidence supported a finding that the students who allegedly bullied him had subjected Tyler to harassment that was “sufficiently severe and pervasive” that it created “an abusive educational environment.”  However, the judge cited a number of decisions by the U.S. Court of Appeals for the Eleventh Circuit (which includes federal courts in Georgia in its jurisdiction) in support of his holding that MCSD had no constitutional duty to protect Tyler from harm by private individuals.

Source:  ATLAW Daily Report, 5/21/12, By R. Robin McDonald

[Editor's Note: Judge Murphy issued a 186-page opinion in Long v. Murray Cnty. Sch. Dist., supporting his order dismissing the parents' claims against the school district. He first found that they had abandoned their equal protection claim because they failed to address it in their response to Defendants' motion for summary judgment.

The judge also rejected the parents' Section 1983 claim based on an alleged violation of Tyler's substantive due process rights. Judge Murphy found there was no custodial relationship between Tyler and school officials, or a state-created danger that would overcome the general rule that a governmental entity is not liable for the acts of third parties. The judge also concluded that MCSD could not be held liable on the theory that it failed to adequately train its employees and protect Tyler from harassment.  Although such alleged conduct may have been negligent, it was not conscience-shocking giving rise to a constitutional claim.

Lastly, Judge Murphy determined that the parents had failed to state a valid claim for disability harassment under Section 504 of the Rehabilitation Act or the Americans with Disabilities Act because they were unable to establish that school officials were deliberately indifferent to the incidents of harassment.

In March 2012, Legal Clips summarized the decision in Doe v. Covington Cnty. Sch. Dist. by the U.S. Court of Appeals for the Fifth Circuit (LA, MS, TX), sitting en banc (all active judges participating in considering and deciding the case), which held that a school district did not have a duty to protect an elementary school student from sexual abuse by a private actor based on the constitutional theory that the school had a special relationship with the student. The Fifth Circuit also rejected the student’s claims alleging a state-created danger and municipal liability.]

5/24/12

Coalition of education and religious groups issues guidelines for schools in balancing free speech with preventing bullying

The Washington Post reports that to help public schools with balancing school safety and religious freedom, a broad coalition of educators and religious groups, from the National Association of Evangelicals to the National School Boards Association, has endorsed a new pamphlet, “Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,” which was authored chiefly by the American Jewish Committee.

Other groups endorsing the pamphlet include the Muslim Public Affairs Council, the Christian Legal Society, the American Association of School Administrators, the Hindu American Foundation, the Islamic Society of North America, the Religious Action Center of Reform Judaism, and the Union of Orthodox Jewish Congregations. A national conversation on bullying that began about a decade ago has been punctuated in recent years by the highly publicized suicides of harassed gay students, and “Bully,” a new documentary on the subject.

According to Charles C. Haynes, director of the Religious Freedom Education Project/First Amendment Center, which funded the pamphlet, the federal government, 49 states, and the District Columbia have anti-bullying policies in place. While cases in which the rights to freedom of religion and speech conflict in school are rare, they do happen.

Kim Colby, senior counsel of the Christian Legal Society, said, “There have been recently in the news some situations in which anti-bullying policies have been used to punish Christian students for expressing their personal religious beliefs while at school.” On the other hand, Francisco M. Negron, general counsel to the National School Boards Association, pointed out that the pamphlet can fill a need the judicial system has not. “It talks about the difference between what constitutes a personal attack, and the expression of an idea,” said Negron.

The pamphlet is based on current law governing speech rights and public schools. Private schools have far more leeway in regulating student speech. Generally, though, giving students more, not fewer, opportunities to express themselves tends to dampen the most noxious speech, Haynes said. “Most of the time you have problems when schools try to censor the kids from saying anything,” he said. “When they’re given an opportunity to be civil about their views, and to have a forum that is theirs, in my experience, most students take that very seriously and are very responsible.”

Source:  The Washington Post, 5/22/12, By Lauren Markoe

[Editor's Note: Marc Stern, chief counsel for the American Jewish Committee and lead author of the pamphlet, says, "There are those who believe that we can’t have restriction on bullying and protect free speech; Conversely there are those who think that the rules against bullying are so important that they trump any concern for free speech," but “[t]he organizations that have joined in these guidelines believe that that’s a false choice.”

The pamphlet states that the guidelines are intended to help public schools balance the need for school safety with the need for free expression. The balance between the two is not static. It changes depending on the specific circumstances in each case, and is affected especially by the age of the students involved. These guidelines are based on current law. They do not provide guidance for every situation. But they should provide useful guidance for school officials seeking to create a safe learning environment.]

5/17/12

Oregon district prevails in suit seeking to hold it liable for peer bullying

The Oregonian reports that Beaverton School District (BSD) has won a lawsuit brought by the parent of a middle school student who was subjected to peer bullying. The parent, Tracey Schweer, claimed that BSD had failed to train its staff to identify and prevent bullying and harassment, failed to supervise students, and for invasion of privacy.

The suit alleged that the student was punched in the stomach, kicked, threatened and punched in the chest on three separate occasions during the 2009-10 school year. It also claimed school staff knew about the incidents and that the boy who bullied her son had a history of that behavior. In addition, the suit claimed staff at Five Oaks changed her son’s schedule, not the alleged bully’s, to separate them, which caused her son anxiety and depression.

After three days of jury deliberation, the school district filed a motion for a “directed verdict,” in effect taking the case from jury and asking the judge to decide. According to Camellia Osterink, BSD’s legal counsel, “We believed the plaintiff had not proved all the elements of the case and moved for a verdict on all counts,” and “[t]he judge agreed.”

The judge found that the district did not act negligently with respect to its students, did not invade the student’s privacy, and that damages did not result from the district’s conduct. In fact, court documents note that evidence provided by Schweer’s attorney helped establish that school staff followed proper procedures. ”The plaintiff has shown that when confirmed physical contact occurred and threatening remarks were made, Five Oaks’ teachers and administrators acted swiftly to respond to the incident.”

The invasion of privacy claim related to Schweer giving permission to the Five Oaks principal to talk with her son’s doctor, but the assistant principal also sat in on the discussion. The judge ruled that Schweer’s attorney failed to prove that it was an intentional intrusion or that any private concerns were discussed, among other evidence, according to court documents.

School districts rarely takes cases to trial, preferring to settle out of court. This was BSD’s first trial in at least six years, Osterink said. Nonetheless, BSD chose to fight it because “the district did the right thing,” Osterink said. “They did everything they could to address the concerns of the parent. No other bullying incidents happened after the watershed incident.”

In her suit, Schweer sought $300,000. At one point, BSD offered Schweer $1,500 to settle the case, Osterink said. BSD’s legal costs so far have been $45,000.

Source:  The Oregonian, 5/15/12, By Wendy Owen

[Editor's Note: As the above article points out, school districts prefer settlement to litigation, in part because the cost of defending a suit is typically more that the cost of settlement. As BSD's legal counsel noted, the facts appeared to strongly favor the school district. On the other hand, in April 2012, Legal Clips summarized an Associated Press (AP) article in The Washington Post, which reported that the Ramsey Board of Education in New Jersey had agreed to pay $4.2 million to settle a lawsuit by a middle school student who was paralyzed when a known bully punched him in the abdomen. The school district had been in negotiations for the past two months with the parents.]

4/26/12

ACLU sues Indiana school on behalf of students expelled for Facebook post

The Associated Press (AP) reports in The Washington Post that the American Civil Liberties Union of Indiana (ACLU-IN) has filed suit in federal court on behalf of three middle school students who were expelled by Griffith Public Schools (GPS) after joking on Facebook about which of their classmates they would like to kill. The students were suspended and later expelled in January 2012 for the remainder of the school year after a classmate’s mother alerted officials at GMS to the girls’ Facebook posts.

According to the suit, GMS officials told the girls they had violated school policy against bullying, harassment, and intimidation. ACLU-IN attorney Gavin Rose said it was clear the girls were joking because their remarks were accompanied by smiley faces and other emoticons, along with Internet abbreviations for laughter, such as LOL. “The fact of the matter is that no reasonable person looking at this conversation would think that these girls were going to go out and inflict harm on anyone,” Rose said. “If you make a legitimate threat against someone … you don’t follow it up with an emoticon.”

The posts were made after school on the girls’ personal electronic devices, not on school computers, the lawsuit says, and were visible only to the girls’ online friends who were allowed access. “Schools do not possess infinite reach into the private lives of their students,” Rose said.

The suit claims the posts did not cause any disruption at school, and no one at school mentioned the posts the following day. The suit claims that GPS told the girls they would be permitted to proceed to ninth grade at Griffith High School this fall, but only one of the girls intends to attend that school.

Source:  The Washington Post, 4/25/12, By AP

[Editor's Note: This story is another example of the difficult balancing act facing school administrators when dealing with off-campus, online student speech. As alluded to in the article, student speech may only be regulated under very specific circumstances. One of those circumstances is when school officials can reasonably forecast that the student's speech will cause a substantial disruption at school, as established in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

The U.S. Supreme Court recently declined to address the extent to which school officials may regulate off-campus, online student speech. In January 2012, Legal Clips summarized articles from a number of media outlets, reporting on the Supreme Court’s denial of certiorari in three student Internet speech cases, J.S. v. Blue Mountain Sch. Dist. (combined with Layshock v. Hermitage Sch. Dist.) and Kowalksi v. Berkeley Cnty. Sch.  In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or a fellow student.  School officials disciplined the students for the behavior, drawing a suit based on First Amendment free speech protection.

Until the Supreme Court clarifies the standard on this issue, federal courts will continue to look at the facts of each case and apply the standard in their circuit. In March 2012, Legal Clips summarized a Mississippi federal district court decision in Bell v. Itawamba Cnty. Sch. Bd., holding that school officials did not violate a student’s free speech rights when they disciplined him for posting a “rap” song he composed and performed off-campus and posted on his Facebook page, because school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

In April 2012, Legal Clips summarized an AP article in Education Week, reporting 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 (GHS). The article notes that the facts are crucial as to whether this a routine case of school officials punishing a student for inappropriate use of school technology, or school officials reaching out to regulate off-campus, online speech.

Another aspect of the above article that merits consideration is the AP's point that the students were expelled for violating the school's bullying, harassment, and intimidation policies. In August 2011, Legal Clips summarized a decision by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO, ND, NE, SD), in D.J.M. v. Hannibal Pub. Sch. Dist., holding that a school district that suspended a student for off-campus instant message communications with a classmate did not violate the student’s free speech rights because the student’s speech constituted unprotected true threats.]

4/25/12

New Jersey district’s insurer pays out $4.2 million to paralyzed victim of bully’s punch

According to an Associated Press (AP) report in The Washington Post, the Ramsey Board of Education (RBOE) has agreed to pay $4.2 million to settle a lawsuit by a middle school student who was paralyzed when a known bully punched him in the abdomen. The school district had been in negotiations for the past two months with the parents of Sawyer Rosenstein.

The suit alleged school officials knew or should have known the boy’s attacker had violent tendencies and failed to comply with a state anti-bullying law. According to the Rosensteins’ attorney, Jeffrey Youngman, the perpetrator of the attack on Rosenstein had punched another student in the face on a school bus a year earlier, but the school kept no record of it or other attacks, and the attacker was not subjected to escalating discipline.

During the three months before the assault, Rosenstein emailed school officials to report he was being bullied and to ask for help. “I would like to let you know that the bullying has increased,” he wrote to his guidance counselor at Eric Smith Middle School. “I would like to figure out some coping mechanisms to deal with these situations, and I would just like to put this on file so if something happens again, we can show that there was past bullying situations.”

In May 2006, Rosenstein was punched in the abdomen at school by the bully. Two days later, he was rushed to hospital in pain. The blow had caused a clot in a major artery that supplies blood to his spine, leaving him paralyzed from the waist down.

In a public statement commenting on the settlement, RBOE denied any wrongdoing and said that it was the district’s insurance carriers that decided to enter into the settlement and will pay it out. “The district’s character education and harassment/intimidation/bullying initiatives and reporting practices are leading edge,” the statement said. “All programs in this area far exceed all of the criteria established by the state of New Jersey.”

Both Youngman and RBOE said the settlement did not include any admission of liability or fault on the part of the district. New Jersey enacted a tough new anti-bullying law in 2011. Youngman said such laws are effective only if they are enforced and adequately funded.

Source:  The Washington Post, 4/18/12, By AP

[Editor's Note: In January 2011, Legal Clips summarized an article in the Star-Ledger reporting that Governor Christie had signed New Jersey's "Anti-Bullying Bill of Rights" into law. Advocates touted it as the toughest in the nation. The law was intended to eliminate loopholes in the state’s first anti-bullying law, enacted in 2002, that encouraged school districts to set up programs to combat bullying but did not mandate it.

As the law went into effect in September 2011, Legal Clips summarized a New York Times article, reporting that while many parents and educators welcomed the efforts to curb bullying both on campus and online, some superintendents and school board members across New Jersey said the new law reached much too far, and complained that they had been given no additional resources to meet its mandates.

In February 2012, Legal Clips summarized an AP article in the New Jersey Herald, reporting that an obscure New Jersey state council, the Council on Local Mandates, had ruled 7-2 that the state’s tough 2011 anti-bullying law constitutes an unfunded mandate for local school districts and must be amended in order for the law to remain in effect. The council ruled that the law requires local school districts to provide training and personnel, but does not pay for them.]

3/22/12

Teachers’ suit accuses Maryland elementary school principal of bullying staff

Six former and current teachers at Kemp Mill Elementary School are suing Montgomery County Public schools over allegations of bullying by the school’s principal, says the Washington Post. The suit claims Principal Floyd Starnes bullied and harassed teachers who sought to improve classroom conditions. The teachers also allege that the county board of education was aware of Starnes’ behavior and did nothing to stop it.

According to the complaint, filed in Montgomery County Circuit Court, the principal subjected the teachers to unwanted touching, verbal abuse, harassment, and retaliation. The complaint also alleges that Starnes failed to report suspected child abuse or crack down on student bullying.

In a system-wide school climate survey issued every year, the portion of teachers who said they would recommend Kemp Mill as a good place to work dropped from 100 percent to only 10 percent, from the year before Starnes’ arrival to the 2010-2011 school year, according to the lawsuit.

Montgomery schools spokesman Dana Tofig confirmed that the complaints about the principal have been brought up before. “But they were investigated and found to have little or no merit,” he said. Doug Prouty, president of the Montgomery County Education Association, said that union representatives made extra visits to the school in recent years “to work to make sure there’s a positive work environment.”

Source: Washington Post, 3/21/12, By Michael Alison Chandler

[Editor's Note: Staff-to-staff  or staff-to-student bullying suits are less common than those alleging student-to-student bullying, but not unheard-of. For example, in December 2011 Legal Clips summarized an article in the Livingston Daily reporting that the mother of a student at Howell High School had filed a federal lawsuit against the teacher she claims punished and humiliated her son after he expressed his religious beliefs about homosexuality during a class discussion. Superintendent Ron Wilson said the board’s policy is simple:  it does not tolerate bullying by teachers or students based on gender or sexuality.]

5/8/12

Federal district court issues consent decree in Minnesota peer harassment suit; school district pledges improved treatment of gay and lesbian students

The Anoka-Hennepin School District (AHSD) in Minnesota has entered into a consent decree with the U.S. Dept. of Justice and the U.S. Dept. of Education, Office for Civil Rights resolving the federal civil rights investigation and two separate actions against the district and several administrators. As reported by the Star Tribune, AHSD’s school board voted 5-1 to approve the settlement agreement with six former and current students who claim they were targets of peer bullying based on their sexual orientation or perceived sexual orientation.

The students alleged claims under the Equal Protection Clause of the Fourteenth Amendment, Title IX, and the Minnesota Human Rights Act. The settlement creates a five-year partnership between the school district and the federal departments of Justice (DOJ) and Education (ED) to help create programs and procedures to improve the school climate for all students.

Anoka-Hennepin officials said that, with help from DOJ and ED, the district will set a new state standard for anti-bullying efforts. “Our gay students deserve to feel safe and be safe, just like everyone else in our public schools,” said Superintendent Dennis Carlson. “When we have finished this process, we believe we will have developed a model that all school districts can follow.” The lone school board member to vote against the agreement, Kathy Tingelstad, resigned after the vote, citing concerns about the plan’s cost, federal intervention in local school practices and the precedent set for other districts.

The consent decree, which by its terms remains in effect for five years, requires the district to take numerous, detailed remedial measures.  As a general matter, AHSD must:

1. Take action “to eliminate and prevent future instances of harassment in it education programs and activities . . . .”; and

2. Retain the Great Lakes Equity Center (based at Indiana University-Purdue University Indianapolis) or another qualified third-party consultant to consult with the AHSD to study and determine what additional measures the district must take to effectively address, prevent and respond to harassment and comply with the terms of the consent decree.

Specifically, the consent decree requires the district to:

A. Engage the Equity Consultant to revise its policies and procedures related to the issues of the case DOJ and ED have authority to review and approve proposed revisions.

B. Hire or appoint a qualified person knowledgeable in all aspects of Title IX law as applied to school districts, with experience conducting training on harassment or related civil rights issues and in carrying out the duties and responsibilities required in the consent decree, to be the Title IX Coordinator.  The Title IX coordinator will work with AHSD to establish a system for district review of school-level investigations and resolutions of student conduct that may constitute sex-based harassment.  The Title IX Coordinator must submit this system to DOJ/ED for approval.

C. Hire or appoint a qualified person knowledgeable in all aspects of the Minnesota Human Rights Act and sexual orientation-based harassment as applied to school districts to be the Equity Coordinator.  This person will supervise, offer resources to, and act as the district liaison to Gay-Straight Alliance groups in the district.

D. Work with the Equity Consultant, the Title IX Coordinator, and the Equity Coordinator to review and recommend additions and improvements to training on harassment for all students and employees who interact with students in the district.

E. Ensure that a counselor or other professional qualified to assist students with mental health concerns is always available during school hours to assist students who have mental health concerns.  By September 4, 2012, AHSD must hire or appoint a qualified person with a Masters degree or PhD in a mental health field, current licensure, and previous experience as a clinician, to act as the Mental Health Consultant.  This person will review and assess current practices in the district with regard to assisting middle and high school students who are targets of harassment.

F. Continue to administer AHSD’s Anti-Bullying Survey and do so once per school year.

G. Work with the Equity Consultant to assess and expand the composition, mission and functions of the district’s Anti-Bullying/Anti-Harassment Task Force.

H. In consultation with the Equity Consultant, at least once each trimester, identify “hot-spots” in its middle and high schools where harassment is most often occurring and work with the Consultant on appropriate corrective actions to eliminate harassment in the hot-spots.

I. Ensure that all of its middle and high schools have a peer leadership program addressing harassment by the beginning of the second trimester of the 2012-2013 school year.

J. The Superintendent or Associate Superintendent must continue the district’s practice of convening annual meetings with students at every middle school and high school in the district.

K. By September 4, 2012, develop and begin implementing a monitoring program to assess the effectiveness of its anti-harassment efforts.

L. Provide all reports, documents, and information required to be produced to DOJ and ED in electronic form in accordance with the timelines in the consent decree.

M. The United States will monitor and review compliance with the consent decree.  It may observe trainings, interview district staff and students, request additional reports, and visit any school in the district with 10 days’ notice.

The six students will be paid one lump sum of $270,000 by the AHSD’s insurance carrier.

“This partnership will strengthen the support that the district provides to all students, including students who are gay or perceived to be gay,” said school board Chairman Tom Heidemann. He added that the consent decree builds upon the work the district already has done to step up its anti-bullying efforts, including staff training.

In February 2012, the school board scrapped its Sexual Orientation Curriculum Policy, which required staff to remain neutral on issues of sexual orientation. AHSD said replacing it with a Respectful Learning Environment Policy stemmed from staff confusion about the old policy, not the lawsuit, but its repeal had been among its demands. The process leading to adoption of the new respectful learning policy revealed deep divisions in the community. Advocates for LGBT students and staff argued that any policy could squelch expression and label individuals, while the Parents Action League said removing the neutrality policy would open the door to gay activism in the classroom.

Laurie Thompson, spokeswoman for the Parents Action League, called the settlement a “travesty.” The lawsuit, she said in an e-mail, was not about bullying but was meant to “abolish conservative moral beliefs about homosexuality. Making schools safe for ‘gay’ kids means indoctrinating impressionable, young minds with homosexual propaganda.”

Source: Star Tribune, 3/6/12, By Maria Elena Baca

Doe v. Anoka-Hennepin School District No. 11, No. 11-cv-01999, 11-cv-02282 (D. Minn. March 1, 2012)

[Editor's Note:  In February 2012, before AHSD settled the case and entered into the consent decree, Legal Clips summarized an article from the the Associated Press regarding AHSB's "neutrality" policy.  AP reported that the Anoka-Hennepin School Board, with only one dissenting vote, had abandoned the much-criticized policy that required teachers to remain neutral when issues of sexual identity arose in the classroom, replacing it with a policy designed to create respectful discussion about controversial topics. Critics contended the former policy muzzled teachers and prevented them from holding effective discussions to reduce bullying against students who are gay or perceived to be gay.]

3/6/12

Illinois Human Rights Commission endorses proposed legislation requiring statewide model bullying prevention policy

The Illinois Human Rights Commission (IHRC) has unanimously endorsed HB 5290, legislation proposed by Rep. Kelly Cassidy that would build on the Illinois School Violence Act and call on the Illinois State Board of Education (ISBE) to develop a template for a statewide model bullying prevention policy, reports the Aledo Times Records. The Commission also voted to join the Prevent School Violence Illinois Coalition. IHRC Commission Chairman Martin R. Castro said, “The Illinois Human Rights Commission commends Rep. Cassidy for her leadership in this area and we also stand ready to collaborate with and support the many committed leaders and organizations in the Prevent School Violence Illinois Coalition.”

Prevent School Violence Illinois (PSVI) is a coalition of individuals, associations, governments agencies, youth service groups, and policy organizations, who are concerned with school violence. Its membership includes the Illinois Department of Human Rights, the Illinois Safe School Alliance and the ACLU of Illinois among numerous partners. Illinois became the ninth state in the nation to enact stringent anti-bullying laws when Governor Quinn signed the Illinois Prevent School Violence Act (SB3266) into law on June 27, 2010. PSVI originally came together in order to support the legislation, designed to provide school districts with tools to prevent and address bullying.

PSVI now supports the work of the School Bullying Prevention Task Force which was created by the Illinois Prevent School Violence Act. The Task Force is charged with exploring the causes and consequences of bullying in Illinois schools, and evaluating the effectiveness of existing anti-bullying policies and prevention programs.

HB 5290 would require schools across the state and ISBE to implement aggressive new anti-bullying and anti-cyber-bullying measures in the 2013-2014 school year. It would also require schools to regularly update their anti-bullying policies, and to collect data on bullying incidents.

Source:  Aledo Times Record, 2/28/12, By Staff

[Editor's Note: The proposed Illinois anti-bullying provisions would supplement an existing law first enacted in 2006 and most recently amended in 2010. Illinois' anti-bullying law applies not only to public school districts, but also to "non-sectarian" private schools.   

The text of HB 5290 adds to the existing law  the requirement that a school district's bullying policy must be based on the state template and include certain provisions:

(d) Beginning with the 2013-2014 school year, each Each school district and non-public, non-sectarian elementary or secondary school shall create and administer maintain a policy on bullying, which policy must be filed with the State Board of Education. The policy on bullying shall be based on the State Board of Education's template for a model bullying prevention policy and shall include criteria set forth in components (1) through (9) of subsection (c-5) of this Section. The policy shall be integrated within the school districts' curricula, discipline policies, conflict resolution education, anti-bias education, and any other violence prevention efforts, including, but not limited to, social and emotional learning standards and response to intervention plans as defined by administrative rule of the State Board of Education. Each school district and non-public, non-sectarian elementary or secondary school shall comply with its bullying prevention policy. The policy must be updated every 2 years and filed with the State Board of Education after being updated. The State Board of Education shall monitor and provide technical support for the development and implementation of policies created under this subsection (d).

In June 2010, Legal Clips summarized an article in the Courier-News reporting that the Illinois General Assembly had passed the anti-bullying measure described above. Legal Clips noted that the language passed by the Illinois legislature supplemented existing requirements that Illinois school districts have bullying policies in place, provided a more detailed definition of "bullying," and expanded the reach of the statute to "non-public, non-sectarian elementary and secondary school."]

2/14/12

Minnesota district abandons policy of teacher neutrality on controversial subjects

According to Associated Press (AP), the Anoka-Hennepin School Board has abandoned a much-criticized policy that required teachers to remain neutral when issues of sexual identity arose in the classroom, replacing it with a policy designed to create respectful discussion about controversial topics. With only one dissenting vote, the school board dropped a policy that is the subject of two lawsuits by critics who contend it muzzled teachers and prevented them from holding effective discussions to reduce bullying against students who are gay or perceived to be gay.

The new policy says when contentious political, religious, social matters or economic issues come up, teachers shouldn’t try to persuade students to adopt a particular viewpoint. It calls for teachers to foster respectful exchanges of views, and for staff to affirm the dignity and self-worth of all students, regardless of race, religion, gender or sexual orientation.

The debate over how teachers should handle controversial classroom topics ballooned after six students in the district committed suicide in less than two years. The district, which is the target of two lawsuits over the old policy, has found itself in the national spotlight over the issue.

Julie Blaha, president of the local chapter of the teachers’ union, Education Minnesota, said the months of discussions about the old policy may prove to be more important than the language of the new policy itself because of the awareness raised about the problems of bullying. She said the new policy sets a better tone, and the next step will be for teachers to discuss how they’ll translate it into a welcoming environment for all students.

The new policy takes effect immediately in the district of about 38,500 students and 2,800 teachers. It may speed settlements of two lawsuits filed by students, former students and parents over the old neutrality policy. The next round of mediation in those lawsuits is scheduled for March 1 and 2, 2012. Both sides have been keeping those discussions confidential, but the National Center for Lesbian Rights and the Southern Poverty Law Center, which are representing the plaintiffs, issued a statement generally applauding the policy change.

Source: Associated Press, 2/14/12, By Steve Karnowski

[Editor's Note: In January 2012, Legal Clips summarized an AP article in Education Week reporting that the Anoka-Hennepin School District's (AHSD) plan to rework the proposed controversial topics policy had come under criticism.]

2/9/12

Federal district court grants Delaware school district summary judgment in student’s Title IX peer sexual harassment suit

P.K. v. Caesar Rodney High Sch., No. 10-783 (D. Del. Jan. 27, 2012)

Abstract: A federal district court in Delaware has granted a school district summary judgment, rejecting a Title IX claim brought by a student and her mother based on student-on-student sexual harassment. The district court concluded that the plaintiffs had failed to show that the defendants were “deliberately indifferent” to the student-on-student sexual harassment the student experienced or that the defendants’ responses to known instances of harassment were “clearly unreasonable.”

Facts/Issues: P.K. attended Caesar Rodney High School (CRHS). She became involved in a relationship with a male student, identified as G.R., who was physically, verbally, and emotionally abusive. When P.K.’s mother learned of G.R.’s abusive behavior, she contacted some of P .K.’ s teachers and a guidance counselor. At that point, no specific incidents of harassment or abuse were known to have occurred on or off school grounds and the mother did not alert the defendants of any such incidents. After G.R. physically assaulted P.K. in an off-campus incident, the mother contacted CRHS officials who put her in touch with the school resource officer (SRO), Corporal Andrew Palese.

Palese also spoke with G.R. and told both G.R. and P.K. that they should no longer share a locker. Palese then reassigned P.K. to a new locker to limit interaction between the two. In February 2010, G.R. and his father sent numerous harassing text messages to P.K. In addition, G.R.’s father called P.K. and left her a “frightening message.” G.R. and his father were subsequently arrested by the Dover Police and charged with criminal harassment.

On April 29, 2010, G.R. pushed P.K. against a locker and slapped her. This was the first incident to occur on school grounds. P.K. told a teacher about the incident.  The teacher informed Assistant Principal Fisher, who brought P.K. to Palese to file a police report.  Fisher called P.K.’s mother to inform her of the situation. G.R. was then arrested, suspended from school for three days, and removed from CRHS’s baseball team. G.R. pled guilty to harassment charges. Shortly thereafter, P .K. “became the target of a campaign of retaliation in the form of verbal harassment and bullying by G.R.’s friends.”

Although CRHS’s principal initially rejected Fisher’s recommendation that P.K. complete the remainder of the school year at home, after hearing the details of G.R.’s harassment of P.K., the principal informed P.K.’s mother that P.K. could complete the remainder of the school year at home. P.K. did not lose any credits for completing the year from home and was not academically or otherwise penalized in any way.

The plaintiffs filed suit against the high school, the school district, and the board of education, contending that the defendants violated Title IX and Delaware laws by failing to remedy and/or protect P.K. from student-on-student harassment. The defendants moved for summary judgment, arguing that the plaintiffs had failed to establish a Title IX action as they have not shown that the defendants were “deliberately indifferent” to the harassment and/or acted “in a clearly unreasonable manner.”

Ruling/Rationale: The district court granted the defendants’ motion for summary judgment on the Title IX claim and declined to exercise supplemental jurisdiction over the state law claims.

Having determined that there were no issues of material fact in regard to the Title IX claim, the district court turned to the question of whether the defendants were entitled to judgment as a matter of law. Specifically, it discussed whether the defendants had exhibited “deliberate indifference” to known acts of sexual harassment; or whether their responses to those known acts were “clearly unreasonable” in light of known circumstances.

In regard to the “deliberate indifference” requirement, the district court found that school officials responded in a proactive manner to incidents that occurred both on and off school grounds. “[I]n response to the incidents that occurred at the High School, the defendants arrested and suspended G.R. for pushing P.K. into a locker and slapping her, allowed her to leave class early to avoid encountering G.R. in the hallways, and ultimately permitted her to complete the remainder of the school year from home after G.R. attempted to push her down a flight of stairs.” As to the incidents that occurred off school grounds, “the defendants changed P .K.’ s locker to limit her interaction with G.R. and suggested that [P.K.’s mother] call the Dover Police after she reported that G.R. and his father sent P.K. harassing text messages.”

The court also rejected the plaintiffs’ contention that Fisher and Palese made comments demonstrating deliberate indifference. It found the contention was “directly rebutted by the actions each took in response to G.R.’s harassment.” It stated: “In particular, even assuming that Fisher and Palese made the alleged statements, the undisputed facts demonstrate that Fisher excused P.K. from school for three days when he learned of the May 21, 2010 incident, Fisher and Palese instigated the arrest and suspension of G.R. for slapping P.K., and Palese changed P.K.’s locker and allowed her to leave class five minutes early.”

Turning to the question of whether the defendants’ response to the student-on-student harassment was “clearly unreasonable,” the district court pointed out that “courts have found that summary judgment is appropriate where it is shown that the defendant(s) disciplined the harasser, steps were taken in an attempt to end the harassment, the harasser was suspended, and/or the defendants attempted to change the harasser or victim’s schedule to limit their interaction.” It emphasized that in the present case “the defendants employed nearly all of these methods.”

The district court also rejected the plaintiffs’ argument that G.R.’s  continued harassment of P.K. established that the defendants’ actions were unreasonable. It found the argument flawed because “[i]t is well-established that schools are not required to ‘remedy’ harassment or to conform their students’ behavior to a certain manner of conduct.” The court said, ”Instead, as the Supreme Court has made clear, the effectiveness of a district’s methods is not a factor considered in the Title IX analysis and ineffectiveness is not dispositive of Title IX liability.”

P.K. v. Caesar Rodney High Sch., No. 10-783 (D. Del. Jan. 27, 2012)

[Editor's Note: The court was not willing to consider facts the student claimed told more of the story, including incidents that occurred off-campus, because there had been no evidence that the school officials knew of the alleged incidents.

Among the claims brought by the student under state law were allegations that school officials violated Delaware's anti-bullying statute "by failing to adequately respond to or institute measures to prevent the bullying and harassment," and the state's teen dating violence statute, "in that the defendants' employees did not report P.K.'s harassment to the High School principal at the outset."

In January 2012, Legal Clips summarized a split decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Williams v. Port Huron Sch. Dist. holding that individual school administrators and school board members were entitled to qualified immunity from a suit brought by a group of African-American students’ parents alleging that the defendants violated the students’ equal protection rights by acting with deliberate indifference to student-on-student racial harassment. The panel’s majority concluded that the students failed to establish a violation of their constitutional rights because they could not show that the administrators’ response “to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances.”]

2/8/12

Indiana legislature considers proposal that would allow schools to discipline students for off-campus behavior, including online speech

A bill that would allow schools to punish students for off-campus actions was approved by the Indiana House of Representatives in January 2012 and is sitting in a Senate committee, says Student Press Law Center. According to state Rep. Eric Koch, House Bill (HB) 1169 is an attempt to deal with growing issues like cyberbullying and cheating.

Under existing Indiana law, students may be punished for “unlawful activity” if the activity is reasonably deemed to cause “interference with school purposes or educational function.” It does not matter if the activity occurred on or off school grounds or if it happened when school is not in session. Koch’s bill would remove the word “unlawful” and allow punishment of any off-campus activity that interferes with the school.

Ken Falk, legal director at the American Civil Liberties Union of Indiana (ACLU-IN), expressed concern abut the bill. “From a First Amendment perspective,” Falk said, “if the student engages in lawful activity off of school grounds, there’s a very high standard that has to be applied before that can somehow lead to discipline.”

HB 1169 has the support of the Indiana School Boards Association. In regard to whether the bill  could potentially infringe First Amendment rights, Koch referred to Kowalski v. Berkeley County Schools, a federal appeals court decision from July 2011. The opinion in Kowalski allowed a school to punish “disruptive” off-campus speech.

Falk said he has concerns over the need for a cheating and cyberbullying law at all. He said cheating should indeed be punished, but not through state law. As for cyberbullying, he said it should only be punished in cases where there is an imminent threat of violence. If a student is a member of a gay rights group off campus, Falk said as an example, that student potentially could be punished if other students “take umbrage” with it. “Clearly that cannot be deemed to be a disruption that interferes with school purposes,” Falk said, “when everything that student has done is off school grounds.”

Koch insisted that limiting student speech is not the intent of the bill. “I wouldn’t knowingly promote anything that would infringe First Amendment rights,” Koch said.

Frank LoMonte, executive director of the Student Press Law Center, said other states could soon see similar bills replicated in their legislatures. “This could be like a bad cold that gets passed from state to state.” LoMonte said even if the Kowalski case applied in Indiana, the bill would “lower the bar” to any and all off-campus speech — which could result in schools using it for “image control.” He said the Kowalski court found that cyberbullying can be punished without additional state law.

Source: Student Press Law Center, 2/7/12, By Nick Glunt

[Editor's Note: Kowalski, decided by the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) was one of a trio of off-campus, online student speech cases that the U.S. Supreme Court recently declined to review. In January 2012, Legal Clips summarized reports from a number of national news outlets reporting on the U.S. Supreme Court's denial of certiorari in Kowalski and two U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI) cases.

The three-judge panel decision in Kowalski held that the language of Tinker v. Des Moines Ind. Comm. Sch. Dist. (1969) supports the conclusion that public schools have a compelling interest in regulating speech that interferes with or disrupts the work and discipline of the school, including discipline for student harassment and bullying.  The panel determined that it was reasonably foreseeable that the speech would reach the school, so it was “satisfied that the nexus of Kowalski’s speech to [the school]‘s pedagogical interests was sufficiently strong to justify the action taken by school officials in carrying out their role as the trustees of the student body’s well-being.”

The two other cases in which the Supreme Court denied review involved a student who had been disciplined for creating an offensive parody MySpace profile of his/her principal off-campus.  In J.S. v. Blue Mountain Sch. Dist., the Third Circuit assumed without holding that the substantial disruption standard set out in Tinker applied, and determined that the school district had failed to demonstrate a reasonable forecast of disruption.  The student’s suspension, therefore, did not pass constitutional muster.  The court went on to say that the Supreme Court’s 1986 decision in Bethel v. Fraser, holding that a public school may discipline a student for on-campus offensively lewd and indecent speech under the First Amendment, does not apply to student speech that occurs off-campus.

In Layshock v. Hermitage Sch. Dist., where the school district had abandoned its Tinker substantial disruption argument, the Third Circuit determined that the district had violated the student’s free speech rights because it had not established a sufficient nexus to the school.  Nor could the district show that the speech had occurred on-campus so that it could be regulated under Fraser’s  “lewd/vulgar” standard.

In a press release announcing Rep. Koch’s introduction of  HB 1169 in the Indiana House, Frank Bush, ISBA’s Executive Director speaking in support of the bill, said,  “It will be helpful as school officials assess a student’s conduct during and after school hours.” He added, “It offers clarity for school disciplinary actions.”]

Tags: bullying, cyberbullying, First Amendment, harassment, off-campus online speech, student discipline, student free speech

2/2/12

New Jersey government council rules state anti-bullying law is an unfunded madate

An obscure New Jersey state council has ruled that the state’s tough new anti-bullying law constitutes an unfunded mandate for local school districts and must be amended in order for the law to remain in effect, says an Associated Press (AP) report in the New Jersey Herald. The Council on Local Mandates ruled 7-2 that the law requires local school districts to provide training and personnel but doesn’t pay for them.

Steven Goldstein, the chairman of Garden State Equality, a gay rights group that pushed for the law, said lawmakers could make changes quickly to keep the law in force. And he said it might be possible to update the law in such a way that complies with Friday’s ruling without spending more state money. “Legislators, advocates, all of us are quickly swinging into action to meet the council’s decision,” he said. Goldstein believes the fix might be as simple as adding language to the bullying law to say that it’s required to provide a “thorough and efficient” education as required by the state constitution.

Advocates say the bullying law, which passed with bipartisan support, is the toughest in the nation. It requires local school districts to have anti-bullying policies and to report incidents to the state government. It was challenged by the Board of Education in rural northwest New Jersey’s Warren County’s Allamuchy Township. The district of 427 students said the law would require costs this year of $6,000 to train educators — with more costs in the future. Some other districts filed papers supporting Allamuchy. Several school officials have complained that the law is costly to them.

Marie Bilik, the executive director of the New Jersey School Boards Association (NJSBA) describes the anti-bullying law as “well-intentioned” but says that it required more work before it took effect at the start of the current school year. She said the group would like to help the state come up with a method that would provide “adequate financial support.”

Source: New Jersey Herald, 1/30/12, By AP

[Editor's Note: The Council on Local Mandates (CLM) will not be publishing its decision until March 2012. However, CLM's website provides background on Allamuchy's complaint, as well as links to additional related documents.

NJSBA's press release commenting on the decision stated: "NJSBA did not participate in the complaint before the Council. The Association had planned a data- collection project to quantify any statewide financial and administrative burdens imposed by the statute and to use the information to propose amendments to the law.  NJSBA plans to pursue the project since the results may prove useful as the Legislature continues to address the issue."

In September 2011, Legal Clips summarized an article in the Cape May County Herald that had published a press release from New Jersey Attorney General Paula T. Dow announcing the distribution of a new agreement to be executed by school districts and law enforcement agencies throughout New Jersey in order to establish enhanced policies and procedures to protect students from bullying.  The revised Uniform State Memorandum of Agreement was drafted to meet the provisions of the Anti-Bullying Bill of Rights Act. See the editor's note for a summary of New York Times coverage of the historic New Jersey statute.]

1/26/12

Federal appellate court rules school officials, board members entitled to qualified immunity from equal protection claim in peer racial harassment suit

Williams v. Port Huron Sch. Dist., 10-1636 (6th Cir. Jan. 9, 2012)

Abstract: A three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in a 2-1 split, has ruled that individual school administrators and school board members are entitled to qualified immunity from a suit brought by a group of African-American students’ parents alleging that the defendants violated the students’ equal protection rights by acting with deliberate indifference to student-on-student racial harassment. The panel’s majority concluded that the students failed to establish a violation of their constitutional rights based on the school administrators’ deliberate indifference to the harassment because they could not show that the administrators’ response “to the harassment or lack thereof [was] clearly unreasonable in light of the known circumstances.”

The majority also found that the individual school board members enjoyed qualified immunity from the suit “because they had no duty to act as individuals.” Specifically, under Michigan law, the board’s duties are imposed on the entire board, rather than on individual members.

Facts/Issues: According to the plaintiffs, African-American students at Port Huron Northern High School (PHNHS) were subjected to constant peer racial harassment by white students during the 2003-2006 time period. The harassment ran the gamut from name-calling, use of the word “nigger,” to displays of the Confederate flag, to several instances of vandalism on school grounds involving racial slurs as graffiti.

From 2003 to 2005, while Cheryl Wojitas was principal, little, if anything, was done to investigate numerous allegations of the use of racial slurs between students or defacement of school property with racially offensive language, despite efforts by students and parents to keep Wojitas and the assistant principals informed of these incidents. In fact, PHNHS failed to produced any records of investigations or disciplinary actions taken regarding any of the incidents that occurred between 2003 and 2005.

However, things began to change in 2005. Michael Jones became the Superintendent of Port Huron School District (PHSD), and Craig Dahlke was hired as principal of PHNHS shortly after the beginning of the 2005 school year. Dahlke took a more proactive stance on racial instances by responding to them immediately, holding student assemblies, and ordering students to remove offensive symbols, such as Confederate flags.

After discovery of racial “hit list,” PHNHS hired a group of management consultants to conduct a study on the learning environment at the school and provide findings and recommendations. In their report, the consultants determined that the racially charged atmosphere developed at Port Huron Northern over an extended period of time and was the result of a series of events, rather than a single episode. The consultants opined that policies regarding student conduct, including racial slurs, were not uniformly enforced by Port Huron Northern staff, and the absence of firm, decisive action encouraged continued harassment.

At the suggestion of the consultant team, Dahlke held three grade-level assemblies at the end of the 2005 – 2006 school year, during which Dahlke reminded the students that everyone should be treated with respect and dignity. Dahlke offered anonymity and protection from retaliation for students who reported violators. Port Huron Northern experienced an increase in reports of violations for the 2006 – 2007 school year. However, the racial slurs and incidents continued that school year.

The plaintiffs, parents or guardians of twelve then-students of PHNHS, filed suit in federal district court alleging that the students were deprived of an equal educational opportunity as the result of “student on student” racial harassment experienced at the school in violation of Title VI, state law, and the Fourteenth Amendment [via Section1983]. The individual defendants filed an interlocutory appeal following the district court’s denial of qualified immunity to them with respect to the plaintiffs’ Section 1983 claim that they violated the students’ right to equal protection under the Fourteenth Amendment.

Ruling/Rationale: The Sixth Circuit panel’s majority reversed the district court’s ruling denying qualified immunity to the principal, superintendent, and the individual school board members, and remanded the case to the district court. In order to determine if the individual defendants were entitled to qualified immunity, the majority noted that it must answer two questions: (1) whether a constitutional right has been violated; and (2) whether that right was clearly established at the time of the alleged violations.

“[T]o demonstrate a violation of the Fourteenth Amendment’s Equal Protection clause,” the majority further explained, “Plaintiffs must demonstrate the individual defendants’ racially discriminatory intent with respect to their response to the student on student harassment.” The defendants must have been deliberately indifferent to the reports of the harassment.

In regard to Principal Dahlke, the majority concluded that his actions did not amount to deliberate indifference. It found evidence in the record that the principal made extensive efforts to combat student-on-student racial harassment after being hired as principal, efforts the district court called “significant.” The majority stated: “Given Dahlke’s numerous, varied responses to the racial harassment, he met the low threshold necessary to show that he was not deliberately indifferent to the racial harassment at the school.” “Dahlke was not,” the majority concluded, “deliberately indifferent to the student-on-student racial harassment and therefore, was entitled to summary judgment on the basis of qualified immunity.”

The majority, likewise, concluded that Superintendent Jones had not acted with deliberate indifference to the racial harassment, as “Jones [sic] efforts to remedy the longstanding racial harassment at Port Huron Northern were not clearly unreasonable.” He was, therefore, entitled to qualified immunity. Because it found neither Dahlke nor Jones violated the students’ right to equal protection, the majority declined to address the question of whether the right was clearly established.

Turning to the individual school board members, the majority concluded that the plaintiffs had failed to show that they violated a constitutional duty owed to the students. It pointed out that under Section 1983, an individual school board member can only be held liable for failing to act if the law “empowers him with some legal obligation to act.” It found “[n]o such obligation existed in this case because, under Michigan law, the duties of a school board are imposed on the entire board and not on the individual members.”

The dissenting judge agreed “with the district court that, given the facts as pleaded by the [students], a reasonable jury could conclude that Dalke and Jones were deliberately indifferent to the harassment at Port Huron Northern.” The dissent would have upheld the district court’s denial of qualified immunity for the individual board members, as well. “Because this argument [regarding collective rather than individual duty under state law] was not made before the district court, I would hold that it is waived,” the dissenting justice wrote.

Williams v. Port Huron Sch. Dist., 10-1636 (6th Cir. Jan. 9, 2012)

[Editor's Note: In December 2011, Legal Clips summarized a decision by a Minnesota federal district court in Pruitt v. Anderson holding that an African-American student had stated a valid Title VI claim for a racially hostile environment against the school district, but not against the superintendent in his individual capacity. The court rejected the student’s Section 1983 equal protection claim on the ground that it was too vague to provide the defendants with sufficient notice of the alleged unconstitutional conduct.]

1/24/12

Parents of student who committed suicide sue Utah district for deliberate indifference to bullying

Bradd and Edna Hancock have filed suit in federal court against the North Sanpete School District and School Board, the Sanpete County Sheriff, and school administrators, reports Courthouse News Service, alleging that throughout middle school and high school the district failed to supervise and protect their son, J.H. The suit claims students began harassing J.H. on buses and in the halls of North Sanpete Middle School, “calling him names like ‘fag’ and ‘queer’ and calling him ‘gay.’”

After the first assault in middle school, school security cameras captured another assault on their son, the parents say, but principal Randy Shelley refused to release the footage. Shelley, a defendant, “indicated to Bradd [Hancock] that he did not care what happened in the future between the boys because if there was another incident involving J.H. – then J.H. would be expelled,” according to the complaint. The parents add: “The middle school’s response, and particularly defendant Shelley’s response, was catastrophic for J.H. because J.H. now had no way out of the situation or to escape the bullying,” the complaint states.

The parents say the bullying from three students continued for the next 1½ years, “and the school district did not take any significant measures to stop the bullying and harassment.” ”The bullying by this group of students and the school district’s ineptitude in handling matter led to J.H. having a mental breakdown and being put in detention,” and “ultimately led to J.H. being put on suicide watch,” the parents say. ”J.H. feared for his mental and physical safety each time he went to school and the school district was indifferent to these experiences and allowed them to continue.” When their son got to North Sanpete High School, the harassment “substantially increased.”

J.H. tried to kill himself in 2008, “which the school district was aware of,” his parents say. ”J.H. attempted suicide in 2008 because of the harassment and abuse he was suffering through, the school district’s seemingly inability [sic] to help him, the school district’s insistence that it was J.H.’s fault, and the hopelessness of the situation at school,” according to the complaint. “J.H. began playing football in high school as an outlet for his fears, anxiety and depression,” the parents say. “The football coach intentionally made things worse for J.H.     “At the beginning of J.H.’s junior year of high school, the football coach, in front of the whole team, told J.H. that J.H. looked like a pedophile,” according to the complaint.

When their son sought counseling from a vice principal about his “relationship problems with a female student at the high school,” the Hancocks say, the vice principal “attempted to intervene in the relationship and went so far as to ask the female student if she wanted to continue to date J.H. The female student responded that she wasn’t going to answer the question. Bradd Hancock says he complained about the entire series of incidents to defendant principal Jim Bowles, upon which “the school district and its officials decided that J.H. needed to leave their district.”

The complaint continues: “Within two weeks of the Hancocks’ complaints to Bowles, J.H. was accused of sexual assault by defendant resource officer Cole Young. … “Defendant Young pressed … teenage females to allege that J.H. had committed a sexual battery against them.”      The Hancocks say the school district “did not perform any meaningful investigation into the allegations of sexual abuse … nor were the acts verified to be true.”  Nonetheless, “law enforcement officials arrived at the school, handcuffed J.H., and took J.H. to the jail – without notifying J.H.’s parents of the allegations,” according to the complaint.

J.H. was suspended. His parents say they tried to enroll him in another district, but could not, because the North Sanpete School District informed the other schools that J.H. had been “expelled.” Finally, on Jan. 21, 2010, “as an actual, legal and proximate result of all the harassment alleged herein, and as an actual, legal and proximate result of all of the reckless, deliberately indifferent, negligent and other wrongful acts and omissions of defendants, and each of them, alleged herein, J.H. took his own life.”

The Hancocks say the defendants “engaged in outrageous conduct by intentionally not following state mandated policies concerning the prevention of suicide, hazing and harassment, and/or negligently permitting an environment where J.H. would be more likely to commit suicide, and where he was harassed and hazed.” The Hancocks seek punitive damages for wrongful death, fraud and assault and battery.

Source: Courthouse News Service, 1/20/12, By Jonny Bonner

[Editor's Note: According to the Hancocks' legal complaint, the bullying consisted of verbal harassment that focused on J.H.'s perceived sexual orientation, as well as physical assaults.  The parents do not allege a claim under Title IX.  They allege a cause of action for violation of their own right to familial relationships under the First and Fourteenth Amendment, as well as state torts including fraud, intentional infliction of emotional distress, assault and batter, negligence, wrongful death and breach of fiduciary duty.

In September 2011, Legal Clips summarized a a Pennsylvania federal district court's decision in Kirby v. Loyalsock Twp. Sch. Dist. granting summary judgment in favor of a school district and individual school officials in a suit brought by a former student who claimed the defendants violated her constitutional rights to free association, equal protection, and procedural and substantive due process because school officials failed to discipline the students who were bullying her. Because it found that the student had failed to establish as a matter of law that her constitutional rights were violated, the court declined to address the school officials’ claim that they were entitled to qualified immunity from the suit. It, likewise, concluded that the school district could not be held liable under the theory of municipal liability, based on the manner in which the officials enforced the school district’s anti-bullying policy, because the court had ruled that the officials had not violated the student’s constitutional rights.]

1/19/12

Massachusetts court upholds students’ suspensions for participating in hazing on school basketball team

A superior court judge  has declined to strip suspensions from the school records of two freshmen disciplined in a hazing scandal involving Andover High School basketball players, says the Eagle-Tribune. In total, seven students were disciplined; two ringleaders were expelled; and five others were suspended from school and athletics. The punishments were handed down after it was revealed in November 2011 that two “newcomers” were forced to engage in one of three humiliating sexual tasks or risk severe beatings while the players were attending basketball camp in July. A school report said the hazing, which involved students eating cookies covered in semen, was video-recorded by a team captain using a Smartphone.

Two freshmen filed suit against the school district to have three-day suspensions removed from their records. The students said they were bystanders to the degrading activities and were unaware they should report them to school officials. They both sought injunctions against the district preventing their suspensions from being revealed to colleges or future employers.

The students also said they were threatened personally, on Facebook, and by text after the hazing occurred at Hoop Mountain Basketball Camp held at Stonehill College in Easton. The incidents occurred before both students started classes at Andover High, said lawyer Andrew Zieberg. He and lawyer Alex Cain represent the students. Zieberg said both freshmen tried to comfort a friend after the “cookie incident” at Hoop Mountain.

Andover schools’ lawyer Jan Gould said Hoop Mountain was “not a school-sponsored event, but tied closely to the school’s basketball program.” When the hazing allegations surfaced in November, an investigation was conducted by Interim Principal Thomas Sharkey, she noted. “Clearly, this is conduct we have an interest in reaching … The reason for that is obvious. We need to control this type of behavior,” Gould said.

“This was a situation in which two newcomers to a particular camp were made to do certain things. Clearly, they were expected to do certain things in order to be accepted,” Gould said. She noted that the school handbook has clear anti-hazing and anti-bullying policies. “If students and families receive the message they can run into court and have this overturned, it loses it’s teeth frankly.”

David Fazio, Andover High head basketball coach, was also briefly placed on administrative leave while the hazing was investigated. Hazing is illegal in Massachusetts and those convicted face up to a year in jail and a $3,000 fine. Anyone who witnesses hazing but does not report it faces a $1,000 fine under the state law.

Source: Eagle-Tribune, 1/18/12, By Jill Harmacinski

[Editor's Note: In January 2011, Legal Clips summarized an article in the Boston Globe reporting that a state auditor’s office review concluded that the Massachusetts Department of Elementary and Secondary Education (MDESE) failed to monitor school districts’ compliance with the state’s anti-hazing laws, resulting in a checkered enforcement system across the state. The review focused on the state’s failure to monitor mandated reporting that has left it with no way to measure what works. State officials said that the reporting and monitoring of hazing is critical now, after Massachusetts officials have put so much effort into programs designed to combat bullying and harassment. The state’s anti-hazing law also came under the public spotlight in November 2010 when Needham school officials suspended 10 members of the girls’ soccer team for hazing.

In January 2012, Legal Clips summarized an article in the Sun Herald reporting that the parents of a former Picayune Memorial High School baseball player (MS) had filed suit alleging members of the team participated in a hazing ritual that left their son hospitalized after he was held from behind and punched in the chest. The suit claims that for at least two years, older baseball players have routinely singled out younger, smaller players and punched them “violently in the chest” before games.]

1/10/12

Suit claims Mississippi high school officials condoned hazing on school’s baseball team

According to the Sun Herald, the parents of a former Picayune Memorial High School baseball player have filed suit alleging members of the team participated in a hazing ritual that left their son hospitalized after he was held from behind and punched in the chest. The suit claims that for at least two years, older baseball players have routinely singled out younger, smaller players and punched them “violently in the chest” before games.

The lawsuit was filed by Jeffrey Dixon Sr. and Amy Dixon, on behalf of their son, Jeffrey Dixon Jr.  According to suit,  Dixon Jr. suffered a seizure and was hospitalized after an alleged hazing ritual before a game in April 2011. The suit names Picayune School District (PSD), baseball coach Cayne Stockstill, three team members identified only with initials and 10 John Does. Although the suit was originally filed in  a Mississippi state court, PSD had the case removed to federal district court.

The suit charges that rather than concentrating on the injured player before he was taken to a hospital, the coach “instead consoled his starting pitcher … who had been the perpetrator of the vicious assault.” The pitcher went on to play for the team in the remaining games, but the Dixons’ suit says their son finished the school year at home and then changed schools because of the “hostile environment.”

The suit claims gross negligence, assault and battery, infliction of emotional distress, false imprisonment, conspiracy, civil rights violations and negligent supervision. It seeks unspecified damages. The civil rights allegation claims the coach and the school district failed to use their positions of authority to stop ongoing abuse. “Defendants Cayne Stockstill and Picayune School District intentionally and willfully refused to take action to prevent ongoing hazing conduct at high school baseball games, despite having actual knowledge of a pattern of such hazing conduct,” the lawsuit said.

Source: Sun Herald, 1/5/12, By Holbrook Mohr (Associated Press)

[Editor's Note: Hazing, like bullying and harassment, has increasingly drawn the attention of both state and local school officials.  The death in November 2011 of Florida A&M drum major Robert Champion, widely reported as the result of hazing by fellow band members, has put the issue in the spotlight again. 

In January 2011, Legal Clips summarized an article in the Boston Globe reporting that a state auditor’s office review had concluded that the Massachusetts Department of Elementary and Secondary Education (MDESE) failed to monitor school districts’ compliance with the state’s anti-hazing laws, resulting in a checkered enforcement system across the state.

In November 2010, Legal Clips summarized an article in the Boston Globe reporting that a number of education and athletic associations had expressed support for Needham High School officials’ decision to suspend members of the school’s girls’ soccer team for allegedly hazing younger teammates.]

1/5/12

New Jersey appellate court determines parent entitled to attorney’s fees for student record obtained through state open records act; not entitled to staff notes

K.L. v. Evesham Township Bd. of Educ., No. L-996-10 (N.J. Super. Ct., App. Div., Dec. 12, 2011)

Abstract:  A New Jersey appellate court has held that a father who sought school records related to alleged bullying incidents in which his children were targeted is entitled to attorney’s fees under the the New Jersey Open Public Records Act (OPRA) with respect to one disciplinary document related to another student.  The court denied the father’s request for access to notes prepared by school staff at the direction of the school board’s attorney, finding that they are privileged under the attorney work product doctrine, and the father had failed to show a “special need” that outweighed the board’s interest in maintaining confidentiality.

Facts/Issues:  K.L., the father of two elementary students attending Evans Elementary School, submitted a written request to the Evesham Township Board of Education (ETBOE) for records related to alleged bullying incidents, in which his children were the targets, on four specific dates.  Superintendent Patricia Lucas responded by letter, attaching a copy of the school district’s “Harassment, Intimidation and Bullying Policy,” and noting that K.L. was entitled to access to his own students’ records, but not those of other students (citing state law and the Federal Educational Rights and Privacy Act) or records which are not governmental records under the state OPRA.  K.L. filed suit alleging violations of the OPRA and the common law.

In the trial court proceedings, ETBOE identified two categories of records it possessed, but believed need not be produced to the father under OPRA or the common law:  (1) notes made by school personnel at the request of the board’s attorney concerning incidents involving the students and contact with the parent; and (2) records pertaining to other students. The first type were not subject to disclosure, argued ETBOE, as they were protected by attorney-client and work product privileges, as well as the “deliberative material” exception to the definition of government records in the state OPRA.  The second type were exempt under FERPA and its state counterpart.

The trial court conducted an in camera review of one disciplinary referral form involving one other student (whose parent had no objection to release of the form with the student’s name redacted), as well as  eleven pages described as chronological notes of contacts of school personnel with the father and his children.  It issued an opinion determining that the notes were exempt from disclosure under OPRA and the common law, as they were protected by the attorney-client and work product privileges.  The court also decided that the father had prevailed with respect to the one student record that was released, and was therefore entitled to attorney’s fees and costs with respect to that document.  After ETBOE challenged the ruling, the trial court rescinded it and agreed that the father was not entitled to fees and costs. It dismissed the father’s complaint with prejudice.

Ruling/Rationale:  The appellate court determined that the staff notes were not protected by the attorney-client privilege in New Jersey, as the record had not established that they were ever communications from school personnel the Board’s attorneys until after the records request was made by the father.  Although the attorney advised that the staff keep the records in anticipation of litigation, “[d]ocuments or records kept by a client do not gain protection under the attorney-client privilege simply because the attorney advised that the client keep them and they were eventually sent to the attorney.”

The court found, however, that the evidence supported the trial court’s conclusion that the notes did constitute attorney work product prepared in anticipation of litigation, as their use for litigation was the dominant purpose of preparing them, and the attorney’s belief that litigation would ensue was objectively reasonable.  The attorney’s anticipation of litigation was reasonable, noted the court, as the father had contacted politicians and news organizations, claiming that his children had been subjected to racial discrimination by the district, and had filed a complaint with the U.S. Department of Education’s Office for Civil Rights, among other allegations.

To determine whether the father would nevertheless be entitled to the notes under a “special need” exception found in the state rules of civil procedure and at common law, the court considered a number of arguments. The father maintained that he had no ability to learn the information via other means. The ACLU’s argued that the father’s status as a parent and his reason for seeking the records are irrelevant under the OPRA, which grants to all members of the public the same right to disclosure.  The court also noted that state Dept. of Education regulations allow disclosure of student records to designated organizations, agencies, or individuals, and that OPRA does not require disclosure of documents exempted from disclosure by regulation.  Finally, after reviewing the detailed procedural provisions of New Jersey’s new anti-bullying law, the court stated that it would not address whether the law, which requires districts to inform parents of the results of bullying investigations, would affect the father’s right to disclosure of the records in this case.

Finally, noting that the common law right of access (which takes into account the statuts of the person requesting it), does not abrogate privileges,  the court weighed the plaintiff’s common law right of access against the Board’s interest in maintaining confidentiality. It determined that the trial court had not abused its discretion in determining that the father failed to meet his burden of proving a substantial need for the documents.  It therefore affirmed the trial court’s decision that the father was not entitled to obtain the notes at this time.

The appellate court decided, however, that the father was entitled to attorney’s fees associated with his successful bid to obtain the student record under the OPRA, as his OPRA suit was the catalyst for obtaining the document.  The Board had not released the document pursuant to FERPA, explained the court. “The Board’s argument on appeal that FERPA prohibits the disclosure of a disciplinary from concerning one student to the parent of another students contradicts its own decision to disclose the redacted document to plaintiff.”

K.L. v. Evesham Township Bd. of Educ., No. L-996-10 (Superior Court of New Jersey, Appellate Division, Dec. 12, 2011)

[Editor's note:  This case presents an interesting amalgam of issues school officials face daily:  confidentiality of student records, parent requests for information, and bullying investigations. Parents, who have a statutory right to view the records of their own children under 18, sometimes use state open records and freedom of information laws to gain access to other documents.  In August 2011, the Del Mar Times reported that a California parenthad filed a lawsuit against the Del Mar Union School District (DMUSD), alleging DMUSD was withholding documents subject to public disclosure under the California Public Records Act (CPRA). The parent had requested access to files, documents and records relating to communications between employees and representatives of the DMUSD and the statewide teachers' union.]

1/5/12

Special ed advocates call on Maryland to step up protection of disabled students from bullying

Special-education advocates are calling for the state of Maryland to do more to address the bullying of disabled students, says the Baltimore Sun, emphasizing that a recent lawsuit against the city school system highlights the long-lasting harm that harassment can do to such children. Experts want officials to strengthen Maryland’s anti-bullying laws to provide more detailed rules for educators to follow in reporting incidents and more scrutiny in situations that involve sometimes-fragile students.

“They have targets on their back, and with a child who already has a disability, the damage can be greater,” said Ellen Callegary, an attorney and special-education advocate for more than 30 years, who is part of a coalition of advocates pressing for changes at the state level. “There appears to be an inability of school personnel to understand how deeply that is felt.”

“It’s appalling,” Leslie Margolis, an attorney with the Maryland Disability Law Center, said. “This is not the first time we have heard of families reporting abusiveness and a lack of response on the part of school systems, and that is unacceptable.” Margolis chairs the Education Advocacy Coalition, a group of organizations and special education experts that represents families of disabled students. She said the group has noted increasingly frustrated calls about bullying from parents of students with disabilities.

The group plans to meet with Maryland State Department of Education officials who oversee special education and bullying to address how the state’s anti-bullying efforts can better serve those students. For example, Margolis said, components of a student’s specialized educational plan, called an “Individualized Education Program,” need to be heavily integrated in responding to bullying incidents. “It’s important to really pay attention to the ‘I’ part of IEP, to make sure that students are getting the free public education to which they are entitled,” she said.

Source: Baltimore Sun, 12/29/11, By Erica L. Green

[Editor's Note: In May 2011, Legal Clips summarized a decision by a federal district court in New York in T.K v. New York City Dep't of Educ. holding that a student had stated a valid claim that she was denied a free appropriate public education (FAPE) as required by the Individuals with Disabilities Education Act (IDEA) based on school officials’ failure to remedy disability-based peer bullying and harassment. The district court determined that IDEA’s FAPE provision imposes a duty on schools to remedy known peer bullying and harassment based on a student’s disability. It concluded: ”When responding to bullying incidents, which may affect the opportunities of a special education student to obtain an appropriate education, a school must take prompt and appropriate action.” ]

1/5/12

Illinois law allows expulsion of students for online threats directed at student or staff

On January 1, 2012, Illinois H.B. 3281, which allows school boards and administrators to suspend or expel a student if that student threatens a school employee, another student or any school-related personnel on the Internet or any social networking website, took effect, reports the Belleville News-Democrat. According to state Rep. Dwight Kay, who sponsored the bill, ”Bullying no longer takes place only at school. Bullies use the Internet to follow their victim home and harass them through social networking.” Kay noted the bill “gives school boards and administrators a way to deal with online threats from students towards other students, faculty or anyone else.”

Source: Belleville News-Democrat, 12/30/11, By Staff

[Editor's Note:  The Illinois Association of School Boardsdescribes the law in its Digest of Bills Passed.  A school board or, by delegation, an administrator may suspend or expel a student if: (1) he/she has been determined to have made an explicit threat on an Internet website against a school employee, a student, or any school-related personnel, (2) the Internet website through which the threat was made is a site that was accessible within the school at the time the threat was made or was available to third parties who worked or studied within the school grounds at the time the threat was made, and (3) the threat could be reasonably interpreted as threatening to the safety and security of the threatened individual because of his or her duties or employment status or status as a student inside the school.

On January 13, 2012, the justice of the U.S. Supreme Court will conference to discuss whether to grant review in two separate cases involving students who were disciplined for off-campus, online offensive speech. In Kowalski v. Berkeley Cnty Sch., Docket No. 11-461, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit (MD, NC, SC, VA, WV) held that a school district, which disciplined a student for off-campus Internet activity, did not violate the student’s First Amendment free speech rights. The panel concluded that the school district had authority under the substantial disruption standard established in Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969), to discipline the student for speech that originated off-campus because, given the reach of the Internet, it was reasonably foreseeable that the speech would reach the school.

In J.S. v. Blue Mountain Sch. Dist., Docket No. 11-502, which has been consolidated with Layshock v. Hermitage Sch. Dist., the U.S. Court of Appeals for the Third Circuit (PA, NJ, DE, VI), sitting en banc (all active judges participating), held that a Pennsylvania school district violated a student’s First Amendment free speech rights when it disciplined her for creating, off-campus on a home computer, a parody MySpace profile page of her middle school’s principal.  The parody contained vulgar, lewd and false statements about the principal. The court’s decision was one of two en banc rulings issued on the same day, the other being Layshock, finding that the school district defendant had violated the student’s First Amendment right to free speech when it disciplined the student for similar off-campus online speech. 

The National School Boards Association (NSBA), which rarely weighs in at the petition stage in Supreme Court cases, filed an amicus brief in support of Blue Mountain School District and Hermitage School District seeking review of the Third Circuit's decisions. In a November 2011 Sua Sponte item, Legal Clips described the arguments in NSBA's brief .  NSBA notes that the Internet generally, and social networking specifically, have so changed the nature of communication among youth that it is urgent for the Court to provide guidance to school administrators on the bounds of their authority to regulate speech that occurs there. School officials need some authority, NSBA argues, to regulate student speech that originates off campus to fulfill the schools’ educational mission to teach the bounds of civil discourse, and to address student bullying. Finally, the NSBA brief suggests to the Court a need for balance in school officials’ authority and responsibility for student off-campus online speech.]

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