School Law M David Alexander Virginia Tech School

School Law M. David Alexander Virginia Tech

School Law Topics 1. Students a) Free speech including off campus discipline 1) cyber bullying 2) bullying b) Sexting c) Cell Phones 2. Search and seizure a) T. L. O. b) Drug testing 3. School Resource Officers 4. Religion (Students and teachers) a) Ten Commandments b) Prayer – graduation, football games, school board meeting c) Equal Access, Act 5. Teachers a) My Space, Facebook b) Free speech 6. Tort, Liability 7. Other 2

Virginia Cases �Koffman v Garnett, 574 S. E. 2 d 258 (S. Ct. VA ) � Thirteen year old third string defensive player who weighed 144 pounds. Team lost first game; Coach believed because of poor tackling. Coach, 260 pounds ordered player to “stand upright and motionless: to demonstrate proper technique for tackling. Lifted player up slammed to ground breaking player’s arm. Player stated claim of a tort of battery. 3

Virginia �Rakes v Frederick Co. Public Schools, 670 F. Supp 2 d 634 (W. D. VA ) � Eighteen year old student wanted to distribute anti-abortion material during non -instructional time. Distributed between classes and in cafeteria at lunch. Was not disruptive under Tinker. School regulation failed Forum test. Injunction issued by Court against school. 4

Virginia � H. H. v Moffett, 335 Fed Appx 306 (C. A. 4 (Va) 2009) � Special Ed student, age 7, in wheelchair. IEP; she was to be allowed to crawl around at intervals during the day. Child cried before going to school; mother suspicious of treatment at school. Mother placed tape recorder in wheelchair. Audio captured a teacher and teacher’s aid telling student she was “gross, ” “coddled, ” “has face only mother could love. ” When student cried, “HEX! Shut the f---up. ” Did not allow child to leave wheelchair during day. � Defendants not entitled to Qualified immunity because child due process in liberty from bodily restraint, hostility violated constitutional rights. 5

Virginia � Guda v Commonwealth, 592 S. E. 2 d 748 (Ct. App. VA ) � Student met school security guard in hall on her way to office to call mother since she was ill. School security guard pulled shirt & bra down, then put his mouth on her breast, and groped her. Student told friends that afternoon who told Principal sent student home and suspended security guard. Principal told head of security who then went to student’s home and took her to hospital for DNA test. Security guard criminally convicted. 6

Virginia �Hibbitts v Buchanan Co. Sch Bd, 433 Fed Appx. 203 (C. A. 4 (VA) 2011) � Virginia law specifically permits a school board to reassign a tenured administrator to a teaching position with a salary reduction as long as the administrator receives written notice and the opportunity to have an informal meeting before demotion. 7

Virginia � Chadwell v. Lee Co. Bd of Ed, 535 F. Supp 2 d 586 (W. D. VA ) � Elementary school Principal demoted to teaching position because she was involved in Democratic partisan politics. Republicans who demoted her had to pay $50, 000 in compensatory damages and $15, 000 in punitive damages against each individual. Board members: Gary Brown, John Marion, Phil Hensley; Board members: Homer Sumpter and Robert Mc. Niel dismissed as defendants. School Board had to pay attorney fees at $250 per hour: Total: $85, 443. 90. 8

Chadwell Quote � � � � Quote from James P. Jones. Chief Judge, Western District of Virginia, Federal District Court. “These cases should be a lesson to local school board members, if one is needed, of the danger of their micromanagment of personnel issues. Even aside from the claims of political motivation, it is far better for school board members, most of whom are part-time volunteers, usually ill-paid for their time spent, to concentrate on selecting a well-qualified professional superintendent in whom they have faith, and leave to that person the selection and assignment of subordinate school personnel. The evidence here, where the board spent much of its time selecting slots for individual teachers and supervisors, shows exactly the wrong way to go. Instead, a school board should utilize its time in deciding the appropriate education policy for the community and making sure that the superintendent implements that policy. When school board members do not follow these principles, not only will education in their community likely suffer, but they will expose themselves to the liability described in this opinion. ” 9

Student Issues - Free Speech �Tinker v. Des Moines Students have First Amendment Rights, limiting material or substantial disruption or reasonably forecast disruption. 10

Student Issues - Free Speech �Bethel v. Fraser Students lewd and indecent speech is not protected by the First amendment. 11

Student Issues - Free Speech �Hazelwood v. Kuhlmeirer �School may regulate the content of school news paper, “Legitimate Pedagogical Concern”, school board controls curriculum. 12

Student Issues - Free Speech �Morse v. Frederick Principal did not violate student’s free speech rights by confiscating banner “Bong hits for Jesus”, at off campus activity, promoting drugs. 13

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Student Issues Free Speech Cont… e) Thus, because of Tinker, Bethel, and Hazelwood, Morse, freedom of expression in school can be described as follows: “First, ‘vulgar’ or plainly offensive speech ([Bethel]-type speech) may be prohibited without showing…. disruption or substantial interference with the schoolwork. Second, school-sponsored speech (Hazelwood-type speech) may be restricted when the limitation is reasonably related to legitimate educational concerns. Third, speech that is neither vulgar nor school-sponsored (Tinker-type) may only be prohibited if it causes a substantial and material disruption of the schools operation or a reasonable forecast of disruption. ” Fourth (Morse-type) may take action regarding activities that relate to drugs 15

Student Issues - Free Speech 1) Tinker may apply to off campus Rule: if there is a nexus between the outside activity and the school that materially and substantially disrupts then the student may be disciplined. 2) Bethel applies to on campus only 3) Hazelwood – applies to the Curriculum 4) Morse – on campus drugs only 16

1. True threat, Not protected by the constitution a) Posted message about another student wanted to rip student’s heart out and pound head with ice pick. D. C. v R. R. (California 2010) 17

Tinker Cited (upheld School) J. S. v Bethlehem. Student web site created at home “Why an algebra teacher should die” requested money to hire “hit man”. 18

Cases That Upheld School Wisniewski v. Board of Education. Student web site created at home, showed bullet fire through teachers head, also stated “Kill Mr. Vander. Molen”. Not protected by the First Amendment. 19

Cases That Upheld School Doninger v Niehoff Website said that school activity had been cancelled “due to douchbags in central office”. Encouraging individuals to call and email school and central office, because it would “piss” them off. Creating foreseeable disruption. 20

Cases That Upheld School Cyberbullying Senior created and posted My. Space web pages called” S. A. S. H. ”, “student against sluts and herpes”, “No No herpes, we don’t want no herpes” Another student responded on webpage saying “students against Shays’ herpes’ referring to a student Shay N. Another student stated “Shay has herpes. ” Court ruled that school did not violate students rights by suspending her for creating and posting webpage. Applied Tinker disruption test, Cyber bullying, Kowalski v Berkeley Co. Schools (W. VA. ) 2011 21

Layschock V Hermitage School District, 2011, (vote 14 -0) Justin Layschock was a seventeen-year old senior. While Justin was at his grandmother's house during non-school hours; he used her computer to create what he would later refer to as a “parody profile” of his Principal. The only school resource that was involved in creating the profile was a photograph of the Principal copied from the School District's website. Justin created the profile on “My. Space. ” Justin created the profile by giving bogus answers to survey. All of Justin's answers were based on a theme of “big, ” because the Principal was a large man. For example, Justin answered “tell me about yourself” questions as follows: Birthday: too drunk to remember Are you a health freak: big steroid freak? In the past month have you smoked: big blunt? In the past month have you been on pills: big pills In the past month, have you gone Skinny Dipping: big lake, not big dick? In the past month have you Stolen Anything: big keg 22

Layschock V Hermitage school District, 2011 (vote 14 -0)Cont… Ever been drunk: big number of times Ever been called a Tease: big whore Ever been beaten up: big fag Ever Shoplifted: big bag of Kmart Number of Drugs I have taken: big Under “Interests, ” Justin listed: “Transgender, Appreciators of Alcoholic Beverages. ” Justin also listed “Steroids International” as a club the principal belonged to. Principal believed all of the profiles were “degrading, ” “demeaning, ” “demoralizing, ” and “shocking. ” 23

Decision Layschock V Hermitage school District, 2011 Student entering school website to take principal’s photo was not sufficient Nexus. 2) What school considered lewd and offensive (Bethel does not allow school district to punish Justin for expressive conduct outside of school). 3) School did not dispute that Tinker did not apply because it was not disruptive. 4) Court ruled school violated student free speech. 1) 24

J. S. v Blue Mountain sch. Dist, 2011 (vote 8 -6) J. S. , an eighth-grade honor student at Blue Mountain Middle school, was upset with her principal for disciplining her for dress-code violations. She created a My. Space page in retaliations depicting her portrayal of a bisexual Alabama Middle School Principal. J. S. accused her principal of “having sex in his office”, “hitting on students and their parents”, and being a “sex addict, fuc…. in his office”. she called him a “dick head”, stated that he was “put on this world with a small dick”, and called him a “fagass”. She stated that his wife “looks like a man” and that his son “looks like a gorilla”. She stated that the principal enjoyed “riding the fraintrain”, a reference to his wife Debra Frain, who worked at the school as a guidance counselor- and that “it’s a slow ride but you’ll get there eventually. ” Created at home on the weekend. Student wrote letters to the wife apologizing. The student said it was a joke between her and her friends. 25

J. S. (Court Ruled) School could not forecast substantial disruption. 2) School could not punish student for use of profane language outside of school, non school hours 3) Was not “materially or substantially” disruptive. 1) 26

Found for Student in Bullying Case (T. K. and S. K. v New York City, 2011) � 12 year old special education student, autistic � Three types of bullying 1) Physical 2) Verbal 3) Psychological � Cyber bullying differs from traditional bullying � 47 states have passed bullying or harassment laws. � Bullying created hostile environment � Parents complained about bullying � Principal refused to discuss in IEP meeting 27

� “No one gains from ignoring school bullying- not even the bullies themselves”. � Teacher aids reported student was ostracized and subjected to ridicule � Student intentionally stayed away, and push student away for fun, tripped and when she fell teacher got upset with her. � Court ruled that school had acted “deliberately indifferent” Title IX standard for sexual harassment, sever, pervasive and objectively offensive altered education. 28

Sexting 1. VA Attorney General opinion (11/24/2010) a) “ In my opinion searches and seizures of student cellular phones and laptops are permitted when there is reasonable suspicion…” b) Sexual material for minor (under 18), child pornography, promptly contact law enforcement. 2. Cell Phones and Facebook, My. Space 29

Student Cell Phone Price v. New York City Board of Education. S. 2 d ( 2008). � The Chancellor of New York City School banned cell phones and other communication devices. There was an exception that student could have devices with prior approval for medical reasons. The court found for the Chancellor that this was a reasonable rule for safety and to decrease disruption. The court also said the Constitution “… did not embrace a right to communicate with children by cell phone. ” � 30

Teacher Cell Phone �Hammond v. State (Tex. App. Texarkana, 2010). Teacher convicted and sentenced to ten year imprisonment, sexually explicit text messages to a student. Text messages on her cell phone from teacher sexually explicit, one was “come on and F*** me…” �Teachers dismissed for talking on cell phone during class 31

City of Ontario, California v. Quon 130 S. Ct 2619 (S. Ct. 2010) � The City of Ontario acquired alphanumeric pagers for text messaging and issued them to employees. . The chief discovered that Office Quon sent or received 456 messages for the month of August 2002 of which 57 were work related; several of the others were sexually explicit. � The officer and the individuals texting Officer Quon sued saying that the reading and auditing of the messages violated the Fourth Amendment rights of these individuals. � Since electronic communication is a new area for the courts, the Supreme Court decided to tread lightly and not determine an opinion that was far reaching. 32

San Diego Unified School District v. Commission on Professional Competence Tenured teacher dismissed for posting on Craigslist an ad soliciting sex that contained graphic photos of his genitalia and anus. Court upheld dismissal for immoral conduct, unprofessional conduct and evidence of unfitness. � 33

Snyder v. Millersville University. � � � Student teacher experienced difficulty with respect to her competency and over-familiarity with her students. Told not to refer to any students or teachers on personal web pages. Student teacher then posted personal matter on her My. Space site. She told students in class she had My. Space web page. . Postings on web page included photo of student teacher wearing pirate hat and holding a plastic cup with caption “drunken pirate. ” Also criticized her cooperating teacher on her web site. Student allowed to graduate but not certified as teacher – unsatisfactory rating as student teacher. The Court held against the student teacher. The Court stated, “So long as employees are speaking as citizens about matters of public concern, they must face only those restrictions that are necessary for their employers to operate efficiently and effectively. ” 34

Land v. L’Anse Creuse Public School Bd. of Ed. ( Mich. App. 2010) � � A teacher was terminated after photos of her engaged in a simulated act of fellatio with a male mannequin appeared on the internet (not illegal). The photos were taken during a bachelor/bachelorette party without teacher’s knowledge and posted on the internet. Rumors started circulating and students gained access. “Conduct, while coarse, was not inappropriate for adult venue” conduct lasted three seconds, photos removed after it became common knowledge. Students who accessed the web site and distributed the photos did so in violation of the web site’s restriction. Note: excellent teacher who went above and beyond her responsibilities to help students and parents. 35

Spanierman v. Hughes (D. Conn. 2008) � � � � Nontenured teacher’s contract was not renewed following discovery of her profile and activity on an internet networking site, alleged free speech. Internet site did not speak out on a matter of public concern as required by First Amendment (Pickering). Web site “Mr. Spiderman” used to communicate with students had pictures of naked men. Told to use school e-mail system for communication with students. After meeting with administrators cite was deactivated, but then started new site, now Apollo 68, same content. Other teachers had My. Space accounts but no evidence that they were inappropriate. Example: An exchange with a student, using the profile name “repko, ” that went as follows: The Plaintiff: Repko and Ashley sittin in a tree. K I S S I N G. t comes love then co 9 mes marriage. HA HA !!!!!!!!!! LOL” Repko: “Don’t be jealous cause you can’t get any lol: )” The Plaintiff: What makes you think I want any? I am not jealous. I just like to have fun and goof on you guys. If you don’t like it, Kiss my brass! LMOA” In the Court’s view, it was not unreasonable for the Defendants to find that the Plaintiff’s conduct on My. Space was disruptive to school activities. 36

Search and Seizures 1. 2. T. L. O. a) Reasonable Suspicion-- not probable cause– ( 4 th Amendment) b) Search has to be Reasonable at Inception Strip Searches a) Safford United Sch. Dist v Redding i. ii. Did not rule out strip searches. Must be danger to school – higher standard 3) Lockers, Canines 4) Drug Testing a) Special Needs b) Vernonia School District v. Acton. (athletes, 1995) c) Board of Education v. Earls (all extracurricular activity 2002) 5) Washington State Case – student drug testing may violate your state constitution. York v. Wahkiakum School District (2008) (Washington) 37

School Resource Officer Triad Model (Law enforcement, Teacher, Counselor) School to prison pipeline 24 states have statues Taser, Handcuffs School District Police Department �New York 5000 Officers, 6 th largest in U. S. Search and Seizure �Miranda 38

Religion 1. Both Student and Teachers 2. Equal Access Act, Clubs 3. Forum Analysis, passing out religious literature 4. Prayer, Graduation, Football Game 5. Ten Commandments 39

Teachers �Pickering v Board of Education �Connick v Myers �Garcetti v Cebollas �Speaking as a citizen �No constitutional right if speaking pursuant official duties. �It is the educational institution that has a right to academic freedom, not the individual teacher. Evans-Marshal v Board of Education, Urofsky v Gilmore 40

Te. Class acher Classroom Signs 41

Teacher Classroom Signs 42