Midwest Education Law

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 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.

Missouri lawmakers yesterday began the process of revising the controversial "Facebook law" that a judge recently enjoined from going into effect.  Acting during a special session Wednesday, the Senate Education Committee unanimously passed a revised version of SB54.  The revised bill eliminates the contentious provision regarding communications between teachers and students on social networking websites like Facebook.  In its place, the new bill provides that school districts must have a social media policy in place by March 1, 2012, including "the use of electronic media and other mechanisms to prevent improper communications between staff members and students." 

Continue to check this blog to follow the progress of the revised bill.

Missouri Gov. Jay Nixon signed into law this week a law that protects student-athletes from possible brain injury by requiring them to be removed from competition for 24 hours when they are suspected of having sustained a concussion.  In such cases, student-athletes may only return to play if they receive clearance from a health-care provider.

The Interscholastic Youth Sports Brain Injury Prevention Act delegates to the Missouri department of health and senior services the task of promulgating guidelines to protect student-athletes against long-term injury.  The Act does not specify precisely how school districts are to determine when a student-athlete is thought to have sustained a concussion, nor does the Act address whether a school district may be subject to liability for failing to remove a student-athlete from competition.

This week, just before the Missouri General Assembly concluded its legislative session, Missouri lawmakers passed the Amy Hestir Student Protection Act (SB 54), a bill aimed at protecting students from sexual abuse. 

Among the various provisions, the Act requires school districts to adopt policies relating to information they may provide to other districts regarding former employees.  Specifically, the Act requires school districts to disclose to inquiring districts when an employee was dismissed or resigned because of substantiated accusations of sexual misconduct.  The Act also requires school districts to develop policies concerning teacher-student and employee-student communications, including appropriate use of electronic media and social networking.

Additionally, the Act creates a Task Force on the Prevention of Sexual Abuse of Children; prohibits registered sex offenders from being candidates for school boards; requires school districts to do employee training on identifying potentially abusive relationships between adults and children; and adds sexual contact with a student while on public school property and second and third degree sexual misconduct as offenses for which a teacher’s license may be removed.

Missouri Governor Jay Nixon has vowed to veto legislation recently passed by the General Assembly that would amend the Missouri Human Rights Act (MHRA), Senate Bill 188.  The MHRA prohibits discrimination and harassment by employers, including school districts, based on protected categories such as race and gender. 

In recent years, Missouri courts have interpreted the MHRA broadly and held that an employer is liable for discrimination when a protected category is a “contributing factor” in an adverse action.  Under federal law, the standard for liability is a “motivating factor.”  This seemingly minor wording difference has meant much greater risk to school districts and other employers who are accused of discrimination or harassment.  The amendment approved by the General Assembly would align Missouri's standard for liability with the federal standard.  The amendment would also eliminate the availability of punitive damages against school districts, among other changes.

In a statement, Gov. Nixton stated "This bill would make it harder to prove discrimination in the workplace, and would throw new hurdles in the path of those whose rights have been violated," Gov. Nixon said. "That is unacceptable."  Gov. Nixon will outline his specific objections and take formal action on Senate Bill 188 at a public setting on Friday, April 29, 2011.

Despite the school funding focus this session, the Missouri General Assembly is making progress on other school-related issues. 

The Missouri Senate unanimously approved the Amy Hestir Act (SB 54) yesterday, which would require school districts to inform the state within 24 hours when a teacher is accused of sexual misconduct involving a student.  The bill, which has not yet been approved by the House, would also require districts that fire teachers in verified abuse cases to disclose the information to other school districts that might be considering hiring those teachers. The bill would further forbid teachers from communicating via the Internet with current or former students in ways that are not accessible to district administrators or parents.

Additionally, Missouri Senate committees have also recently approved several bills that would expand charter schools, as well as legislation that would provide vouchers to students in unaccredited school districts to allow them to attend nearby private, public, charter or virtual schools.

Education funding issues continue to dominate the Kansas and Missouri legislatures’ attention this session as both states struggle with large budget shortfalls.

In Kansas, House Speaker Mike O’Neal (R-Hutchinson) on Thursday urged the passage of a constitutional amendment that would require the Kansas Legislature to provide an "equitable distribution of public school funds." Currently, the Kansas Constitution requires the Legislature to make a “suitable provision” of funds to Kansas public schools. O’Neal said the change in language would prevent the Kansas Supreme Court from ordering the Legislature to increase school funding. Opponents of the measure argue that the change would effective remove the Legislature’s responsibility to provide adequate funding to public schools.

The Missouri General Assembly is considering several proposals that would alter the formula governing the way public schools are funded because formula-funded schools are facing a $330 million shortfall in 2013. On Wednesday, the Senate Education Committee held the General Assembly’s first hearing on the new funding proposals.

The McPherson School District has received a waiver from the No Child Left Behind Act of 2001 – the first such waiver in Kansas and probably the entire country. The Kansas school district asked the federal government for the waiver in September and was informed last week that the request had been granted.

McPherson Superintendent Randy Watson told the Kansas City Star that the district had not struggled to comply with NCLB, but the district anticipated it would in the future as NCLB’s requirements of the percentage of students required to meet grade-level standards increases. Thanks to the waiver from NCLB, McPherson will track its older students’ achievement by using tests developed by the same group that administers the ACT college entrance exams. The district will still have to show progress using the alternative exams, but it will be able to bypass NCLB’s 100-percent goal with its older students.

While school funding is likely the dominant issue gaining school districts’ attention during this legislative session in both Missouri and Kansas, a number of proposed bills in both states could also affect schools.

In Missouri, the chairman of the Missouri House’s Committee on Elementary and Secondary Education, Rep. Scott Dieckhaus (R-Washington), has indicated his support for a number of measures, including bills tying teacher tenure to student performance, as well as those addressing open enrollment, social promotion, and cyberbullying.  Bills that expand educational opportunities outside of the public school system for disabled students and those that expand Missouri charter schools also have the support of Rep. Dieckhaus.  Last week, the House Workforce Development Committee heard testimony on HB 205, which would the Missouri Human Rights Act to provides protection to school districts and other employers against frivolous discrimination claims. 

In Kansas, the chairman of the House Education Committee, Rep. Clay Aurand (R-Courtland), plans to hold hearings in March on a bill that would abolish the Kansas Board of Regents and the Kansas Board of Education in favor of having an Education Secretary appointed by the Governor.  Other proposed legislation in Kansas includes a bill that would require online reporting of all expenditures by school districts and bills relating to at-risk students and non-resident students.  The Senate is currently considering multimillion dollar budget cuts to schools after the House approved HB2014 last week.  The bill would eliminate a $50 million budget deficit.

Continue to check this blog for updates on these bills and others.

The Supreme Court of Missouri this week upheld the constitutionality of a federal law that provides immunity from civil liability for teachers and administrators. Congress enacted the Paul D. Coverdell Teacher Protection Act as part of the No Child Left Behind Reforms of 2001, but the Act has rarely been addressed by courts. The Act’s purpose is to provide teachers, principals, and other school professionals the ability to undertake reasonable actions to maintain order, discipline, and an appropriate educational environment without fear of civil liability. The Act provides immunity for teachers who, among other things, act within the scope of their employment and in conformity with federal, state, and local law.

In Dydell v. Taylor, the Missouri Supreme Court first upheld the constitutionality of the Coverdell Act and then held that the Act provided immunity from suit to former Kansas City, Missouri School District superintendent Bernard Taylor, who was sued for allegedly negligently permitting a student to assault another student. The plaintiff argued that Taylor had violated district policy, making the Act’s immunity inapplicable. The Court disagreed, saying that violating district policy was not sufficient to revoke the Act’s protection and that, nonetheless, there was no evidence that Taylor violated district policy anyway.

In September, the U.S. Department of Justice announced new regulations governing “service animals” in schools.  Those regulations become effective March 15, 2011, and require school districts to modify their policies, practices and procedures to permit the use of service animals by individuals with disabilities.

According to the new federal regulations, the definition of “service animal” is limited to dogs and miniature horses that have been individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. The work or tasks that the animal performs must be directly related to the handler’s disability.  Therapy dogs or emotional support animals do not qualify as “service animals."  Schools may exclude service animals that (1) are out of control or (2) are not housebroken.

For more information, click here: http://tinyurl.com/4p56xvy.

A New York state appellate court has allowed a lawsuit challenging New York City-area school funding to proceed.   In the case, Hussein v. State of New York, the parents of students in eleven schools districts outside New York City have sued the state, arguing that school underfunding violates the state Constitution.  The parents allege that substantial school underfunding is depriving New York City-area children of a basic education.   

Challenges like the one initiated by the New York parents are becoming increasingly common as school districts struggle to balance budgets without sacrificing services for students.  Courts are often hesitant to hear such cases because they involve complex state fiscal policy and social policy decisions, rather than strictly legal questions.  Nonetheless, the New York appellate court agreed with a lower court that the case should be allowed to proceed because it dealt only with school funding in New York City, rather than policy choices at the state level. 

An appellate court has ruled that a Kansas school district did not confer greater employment rights simply by defining the term “just cause” in the district’s employee handbook.  The Tenth Circuit Court of Appeals, which hears appeals from Kansas federal court, recently denied a Unified School District employee’s due process claim because the employee lacked the required property interest in his employment to pursue such a claim.

Generally, demoted or fired employees may pursue due process claims when they have a property right in their employment – usually derived from a contractual requirement that the employee may only be terminated “for cause.”  In the recent case, Brantley v. Unified School District, a driver for the school district’s food services department argued that because the employee handbook defined “just cause” under the heading “Suspension, Non-Renewal, Termination” he had a right to due process before being demoted.  But the Tenth Circuit disagreed, reasoning that the “just cause” language referred to three categories of discipline that did not apply Brantley’s situation.

While the school district prevailed, the case serves as a reminder that employee handbooks must be carefully drafted to avoid claims like the one at issue in Brantley. 

A Kansas high school has attracted the attention of the American Civil Liberties Union after banning a controversial bracelet and suspending a student who violated the ban.  After getting complaints, Junction City High School’s principal recently told students not to wear the bracelets, which read “I (heart) boobies!”  A breast cancer awareness foundation produces the bracelets, as well as t-shirts with the same slogan.  While the charity has hoped to utilize the eye-catching slogan to encourage involvement by teenagers, the bracelets  have been banned at multiple schools across the country.  The Junction City student who refused to take off his bracelet was suspended for two days.

On Wednesday, the ACLU sent the high school a letter threatening legal action, alleging a violation of the student’s First Amendment rights.  The threat is probably not an empty one – the ACLU filed suit in Easton, Pennsylvania last month against a school district that suspended two students for wearing the same bracelets despite a ban.  The following link provides the full story: http://tinyurl.com/2ecz4n2

Recent research confirms what school administrators and teachers already know: student-on-student bullying is now more likely to happen online than in person.  A University of Minnesota child psychologist’s research indicates that while about 14 percent of adolescents report they have received face-to-face bullying, 48 percent say they have been subjected to bullying via virtual messaging.  Cyberbullying – which can occur on social networking websites, cell phones, e-mail, and other electronic media – presents new challenges for school administrators who wish to impose discipline for conduct that occurs on electronic media, often away from school property.  The legal landscape is not yet clearly defined in this area, where disciplined students often claim a First Amendment defense.

The Michigan Department of Education has given the Detroit Public Schools a loud wake-up call.  Citing persistent noncompliance with the Individuals with Disabilities Education Act, the Michigan Department of Education recently informed the Detroit Public Schools that it would be taking action to block $5 million in special education funding to the district.  The penalty serves as a valuable reminder to school districts to consistently and effectively monitor their compliance with IDEA.

According Michigan ED, the Detroit Public Schools have failed to, among other things: monitor the district’s 7,000 disabled students’ progress, demonstrate that special education staff members are appropriately trained, and provide a list of qualified instructors, therapists, and social workers.  The Detroit Public Schools’ problems were first identified in July 2008, and Michigan ED put the district under heightened scrutiny a year later when the district failed to show signs of improvement. The financial sanctions come as a last resort now that the district is still noncompliant, according to the Detroit News.

Click here for more about this story: http://tinyurl.com/22s8htf

A Philadelphia-area school district has settled lawsuits filed by the families of two students who accused the district of tracking them through district-issued laptops.  The students had alleged that the Lower Merion School District secretly spied on them and other students through the webcameras in their district-issued laptops.  One student alleged that the District took hundreds of pictures of him while he was at home in his bedroom.  The District said its laptop tracking program was intended to be activated when a student reported that a laptop was missing.  After the allegations surfaced, the District suspended two staff members who oversaw the tracking and conducted an investigation, which the District reported found no proof that employees ever intentionally spied on students.  Beyond the $610,000 settlement, the Philadelphia Inquirer reported that the team of lawyers and computer experts the District hired to defend the lawsuit had submitted more than $1 million in bills.

To read more about the lawsuits, click here: http://tiny.cc/1hocy

As Homecoming season continues, school districts may want to re-examine their alcohol and drug policies for sufficient clarity.  Unless they are carefully drafted, such policies may be vulnerable to challenge.  For example, an Alabama court recently found a school district’s alcohol and drug policy to be too vague to pass the court’s muster.  The Monroe County Board of Education’s policy stated that “no student shall carry, possess, or use drugs, drug paraphernalia, or alcohol” at a school function.  Pursuant to this policy, Excel High School suspended a student who came to the school’s prom last spring after having ingested alcohol.  The student did not have any alcohol on his person at the dance.

The Monroe County Board of Education disciplined the student because it interpreted its policy to include a student who has used alcohol shortly before attending school or a school-sponsored function or who is under the influence of alcohol while at school or at a school-sponsored function.  But an Alabama court disagreed.  The court concluded that the policy was unconstitutionally vague because it was unclear whether any student should have known that drinking alcohol before arriving at the prom constituted “use” of alcohol at a school function, which would trigger disciplinary measures.  The court struck down the policy and reinstated the student at his high school.

A federal court recently upheld the constitutionality of a school district's suspension of a fifth grader who wrote a violent message on an in-school assignment.  In Cuff v. Valley Central School District, the 10-year-old student's teacher assigned him to write a "wish" that would be publicly displayed during an open house for parents. The student wrote "blow up the school with all the teachers in it," prompting a suspension.  The student later told school officials that he was only joking.
 
The Southern District of New York concluded the First Amendment did not protect the student's speech because the school district reasonably determined the threat was likely to cause a substantial disruption.  The student had a lengthy disciplinary history of violent tendencies and similar past disturbing writings.  The student's capacity to carry out the threat, young age, and the fact that the threat was written in response to a school assignment were immaterial.

To read the court's opinion, go to http://www.spencerfane.com/_FileLibrary/FileImage/Cuff%20v.%20Valley%20Central%20School%20Dist..pdf