Midwest Education Law

The U.S. Departments of Education and Health & Human Services recently launched a revitalized website designed to encourage parents, students, educators and communities to take action and prevent bullying.  The website is http://www.stopbullying.gov/.  The website provides tools, strategies, suggestions and other resources to help people discuss and discourage bullying in school.  The website also provides information about the significant impact bullying can have on the physical and emotional well-being of students. 

The U.S. Department of Education recently provided two resources designed to aid schools in interpreting the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.  The first resource is a Dear Colleague letter which highlights changes to the ADA adopted in 2008 (made effective in January 2009).  The second resource is a Questions and Answers document which provides basic information about OCR and application of the statutory amendments to students, or other individuals, who may be protected by the ADA and/or Section 504.  While neither resource can provide answers to detailed scenarios, both documents provide a good refresher on these important disability discrimination laws.  The documents also include important policy-related reminders and links to other helpful authorities. 

A federal district court in ruled yesterday that a Missouri school district must stop blocking web content geared toward the lesbian, gay, bisexual and transgender (LGBT) communities through use of its network filtering software. In Parents, Families, and Friends of Lesbians and Gays Inc. v. Camdenton R-III School District, plaintiffs claimed that the school district "implemented internet filtering software that systematically blocks websites expressing a positive viewpoint toward LGBT individuals, in violation of PFLAG's freedom of expression under the First Amendment." The software permits users to block internet content by content categories, such  as pornography, advertising, and “sexuality.” The sexuality category automatically blocked sites offering LGBT-positive information, including those maintained by PFLAG and others, which plaintiffs alleged constituted unlawful viewpoint discrimination. The school district argued that the filtering software was necessary in order to comply with Children's Internet Protection Act's (“CIPA”) 47 U.S.C. § 254(h)(6)(B)(i), a federal statute requiring schools to protect children using school computers from viewing visual depictions that are obscene, child pornography, or harmful to minors.

 

The court was not persuaded, finding that the school district intentionally discriminatied against plaintiffs based on their viewpoint, largely because the district continued using what the court deemed a substandard content filter, URL Blacklist, depsite plaintiffs' objections and complaints from the ACLU. The court noted that URL Blacklist automatically categorized any LGBT friendly site under the block category of "sexuality," while allowing access to anti-LGBT sites which it categorized as "religious." The court found that the content blocker amounted to a "blunt instrument" that "systematically targets the highest-quality informational sites that express a positive viewpoint toward LGBT individuals," while actually failing to block up to 30% of CIPI prohibited sites. The court also concluded that other filtering systems are available that "are much more effective" at filtering out pornography "and do so without burdening websites that express a positive viewpoint toward LGBT individuals." In addition, the court rejected the district's argument that allowing students to request that sites be unblocked did not remedy the issue, because such requests were "not truly anonymous," and a cumbersome procedure could deter students seeking access to the gay-positive sites. "Students may be deterred from accessing websites expressing a positive view toward LGBT individuals either by the inconvenience of having to wait 24 hours for access or by the stigma of knowing that viewpoint has been singled out as less worthy by the school district and the community," the judge said.

A federal court sitting in Missouri recently affirmed the lawfulness of public school drug sweeps by trained drug-sniffing dogs.  In its order, the United States District Court for the Western District of Missouri dismissed a lawsuit filed against the Springfield Public Schools in which two high school students claimed that a drug sweep violated their Fourth Amendment rights against unreasonable search and seizure. 

 

The students sued the school district, as well as two administrators, after the district coordinated with local law enforcement to have a trained dog sniff student possessions for illegal drugs.  The court’s ruling reaffirmed United States Supreme Court precedent that such drug sweeps do not implicate Fourth Amendment rights and are entirely lawful.  The court also concluded that the school district’s policy relating to such sweeps was reasonable.

The Missouri General Assembly is currently considering two bills that would amend the Missouri Human Rights Act ("MHRA").  Among other things, both bills would change the legal standard applied in discrimination claims to mirror the standard applicable to similar claims under federal law.  Specifically, under the present MHRA, claimaints must demonstrate that discriminatory animus was a "contributing factor" to an adverse action by their employer.  However, SB 592 and HB 1219 would require claimaints to demonstrate that unlawful animus was a "motivating factor" for the employer's action.  Although these bills are highly controversial, proponents and opponents agree that the differing standards are important in claims involving workplace discrimination.  Also important are the caps on monetary damages contained in both bills. 

The legislature passed a similar measure last year and Governor Nixon vetoed it on May 2, 2011.  We will monitor closely all developments regarding this important debate and provide updates as appropriate. 

The Department of Education’s Office for Civil Rights recently issued a “Dear Colleague” letter providing guidance for school districts regarding compliance with the Americans with Disabilities Act Amendments Act of 2008 (ADAAA) as well as a frequently-asked-questions reference. The ADAAA is widely considered to have expanded the definition of a “disability” requiring accommodation. While the guidance does not provide new standards, OCR’s letter and FAQ are an additional reference for school officials sorting through disability accommodation issues.

The United States Supreme Court declined this week to review a pair of high-profile off-campus Internet student speech cases.  Both cases involved students who were disciplined at school for posting fake profiles on the Internet of their school principals.  The high court’s decision to decline review is a missed opportunity to clarify school districts’ ability to discipline students whose off-campus, online conduct may affect the school environment.

 

The two cases, which involved materially similar facts, drew national attention when the Third Circuit Court of Appeals issued decisions in the cases that reached opposite conclusions on the same day.  In J.S. v. Blue Mountain School District, a middle school student posted a fake MySpace profile of her principal that contained crude content and vulgar language, resulting in a 10-day suspension.  In Layshock v. Hermitage School District, a high school student was also suspended after creating a fake webpage mocking his principal.  

 

After reviewing the cases en banc—with all Third Circuit judges participating—the Court held that the discipline applied by the schools in both cases violated the students’ First Amendment right to free speech.

The National School Boards Association, through funding from the Centers for Disease Control and Prevention, produced and released a new resource regarding food allergies.  It's titled "Safe at School and Ready to Learn: a Comprehensive Policy Guide for Protecting Students with Life-Threatening Food Allergies" and you can review it here.  The guide contains recommendations for policies, best practices, medication protocols, communication channels, and prevention/evaluation strategies.  It also contains other helpful tools including a checklist, glossary and list of allergy-related resources.  As schools continue to see increased allergy activity, and related costs/exposure, this guide could be a great help to administrators and educators alike.   

The Family Compliance Policy Office of the U.S. Department of Education, together with the newly-created Privacy Technical Assistance Center, will host a webinar on January 11 to discuss new FERPA regulations.  The webinar will summarize the recent regulatory changes, then focus primarily on new requirements for data sharing.  As we've shared before, these requirements can be very technical and confusing.  Agency officials are expected to share "best practices," which may help navigate these dangerous waters.  In light of the Department's pledge to increase FERPA enforcement efforts, it's important to understand how the agency views schools' obligations under the new regulatory scheme.  More information about the webinar can be found here.   

The U.S. Department of Education will publish its new FERPA regulations today in the Federal Register.  The regulations, together with the appendix, span more than 250 pages and become effective on January 3, 2012.  The appendix, which begins on p. 238 of the regulations, contains answers and forms that provide good information about FERPA and the new regulations.  Changes announced in the regulations include, among other things, guidance on sharing student data for research purposes, increased enforcement authority and creation of the Privacy Technical Assistance Center.  The Department also drafted a helpful overview, which provides a summary of the changes and links to additional resources.  This would be the best starting point for reviewing the impact of the new regulations.