Schools and the Law–Headline News

Transgender Issue Reaches Supreme Court

October 31, 2016

Friday, October 28, 2016, the Supreme Court announced it would hear the petition on appeal from the 4th Circuit regarding a transgender student’s use of restrooms in Gloucester County, Virginia.  The decision comes after the Court issued a stay on the enforcement of a lower court’s injunctive order to require the Gloucester County School District to allow the student to use the restroom consistent with his gender, rather than his biological sex.  This is the first time the Supreme Court has taken up the issue of treatment of transgender students in America’s public schools.    A bit of history may be helpful to lay the context for this decision.

Congress passed Title IX in 1972, which prohibits discrimination on the basis of sex in schools receiving federal funds, ie, all public schools.  The Department of Education falls under the executive branch of government that promulgates rules and enforces laws applicable to agencies under its jurisdiction. The Office for Civil Rights (OCR) is an arm of the Department of Education.  For several years, OCR and the DOE have interpreted Title IX’s prohibition of sex-related discrimination to include discrimination on the basis of sexual orientation and gender identification. OCR complaints around the country have generally been resolved in favor of the gay/lesbian/transgender students, including complaints about the use of restrooms for transgender students.  Courts, which falls under the judicial branch and interpret laws like Title IX, are less consistent in their response to these lawsuits.

In September, 2015, a federal district court in Virginia upheld a school board’s resolution that restrooms must be used according to a student’s sex, not gender. The court acknowledged the DOE’s interpretation of Title IX “on the basis of sex” to include gender, but stated the DOE does not get to interpret Congress’ intent when it passed the law in 1972.   In April, 2016, the case was reversed by the 4th Circuit which held the DOE does get to interpret Title IX, as the DOE is the agency responsible for enforcing the law and promulgating rules under the law.

In March, 2016, North Carolina passed a law requiring individuals to use the restrooms that correspond to their sex, not gender, while in government buildings, including schools. On May 9, the Department of Justice sued North Carolina over the law.

Partly in response to North Carolina’s law, on May 13, the DOE and the Department of Justice (which enforces Title VI, the employment non-discrimination federal law) issued a joint “Dear Colleague Letter”, stating federal funds will be withheld if schools do not extend protection to transgender students under Title IX, including use of restrooms that correspond to gender, not sex.   On May 23, 11 states, including Utah sued the Obama administration challenging the Dear Colleague Letter. Ten more states filed suit on July 8, 2016.

On August 3, 2016, the United States Supreme Court issued a “stay” on the 4th Circuit’s grant of a preliminary injunction in the Virginia case, which would have allowed the transgender student to use the boys’ bathroom despite the resolution the school board in Virginia passed.

On August 21, a Texas district court issued preliminary injunction nationwide against the Dear Colleague Letter in response to the 11 state lawsuit filed May 23, 2016.

And last Friday, October 28, 2016, the Supreme Court agreed to hear the case and decide, with an 8-justice court, whether (1) deference should extend to the May 2016 Dear Colleague Letter that does not carry the force of law and was adopted in the context of the very dispute in which deference is sought? and (2) with or without deference to the Department of Education, should the Department’s specific interpretation of Title IX be given effect?

The decision, if it’s not a 4-4 ruling, should finally provide guidance to schools nationwide regarding transgender students in public schools.

Charter School Authorizer Being Sued

January 25, 2016

The State University of New York (SUNY) is one of several charter school authorizers in New York State. About six years ago, SUNY authorized a chain of charter schools operated by Success Academy. The chain is run by a former New York City councilwoman and serves primarily black and Latino students. The schools emphasize strict and traditional behavior including requiring students to sit very still in class with their backs straight and their hands in their laps. Good behavior results in candy and prizes and student misconduct results in loss of recess time, extra assignments and sometimes suspension—even for kindergarten students.

Four parents recently filed a lawsuit asking for two million dollars from the school chain because a principal of one of the chain’s schools maintained a “got to go” list which identified difficult children and, the parents allege, the administrators attempted to drive the students out of the school with frequent suspensions and calls to the students’ homes. Some of the children had special needs and the parents do not believe that the publicly funded, privately run schools made enough effort to accommodate their children, as the law requires. For the school’s part, it claims that the list was terminated, once discovered, and the principal was reprimanded following the October 2015 incident.

A school spokesperson described the school’s philosophy: she . . . “said that Success schools did not push children out, and that what might look like an effort to nudge students out the door was actually an attempt to help parents find the right environment for their children. Some on the list required special education settings that Success could not offer them . . . .”

SUNY launched its own investigation saying that the parents’ allegations were too serious to ignore. A separate group of parents filed an Office of Civil Rights complaint on January 20, 2016 also claiming that the chain of schools failed to accommodate their children with disabilities and/or that the schools dealt with them by suspensions and phone calls to the parents.

Unlike Utah charter schools (whose charters are perpetual), several of these satellite schools must renew their charters this year; SUNY officials say their investigation will be completed before the renewal date.

The LGBT Club Question

November 30, 2015 (Our apologies for the few weeks we missed!)

On November 17, a North Carolina charter school, Lake Lure Classical Academy, made the decision to suspend all student clubs after parents complained about a new Lesbian, Gay, Bisexual and Transgender club at the K-12 school. The charter school board suspended the activities of all school clubs pending receipt of legal advice on “club protocol.” A teacher at the school further complicated the school’s dilemma by allowing the students to hold a club meeting in her classroom and by giving a student a poster from the Gay, Lesbian and Straight Education Network to use. One grandmother expressed concern that because of the poster the grandmother had to explain the meaning of “gay” and “lesbian” to her elementary-age grandchild. The school director expressed disappointment that the controversy meant that all club activity was put on hold.

What would Utah do? Utah has a comprehensive school clubs statute (§53A-11-1201 through 1214) that (1) provides definitions; (2) distinguishes between curricular and non-curricular clubs (this club seems decidedly non-curricular); (3) outlines procedures for faculty oversight of all clubs; (4) requires parental consent prior to student participating in both curricular and non-curricular clubs; and (5) requires that schools review applications for all clubs that meet on school property. Interestingly, Utah schools have not had significant controversy over the student and community interest in gay/straight clubs since the late 1990’s and following the application of this law in various school districts statewide.

Utah has no law about a teacher’s use of visual materials in her own classroom. Utah’s law also has a specific provision that requires that written or media materials that are used at a non-curricular club meeting by a nonschool person must be given to a school administrator at least 24 hours in advance of the meeting to allow for parent review of the materials. This situation prompted the North Carolina local charter board to adopt a policy on club posters in the school.

The more complete story can be found here.

Race, Student Discipline, and Police in the Classroom

November 2, 2015

In late October, a sheriff’s deputy “assigned to Spring Valley High School” struggled with a 16-year old girl who refused to leave her math class after her teacher allegedly caught her using her phone in class. The video of the incident shows the sheriff’s deputy, who looks to be an average-size, sturdy officer in a uniform, pulling the female student backwards from her desk, dragging her about six feet along the classroom floor and then handcuffing her.

The students who witnessed the South Carolina incident said that the teacher told the sophomore student using her phone to put it away. The teacher called for an administrator; the administrator called for the deputy. According to the witnesses, all adults repeatedly told the student to put away her phone. She refused. It was at that point that the deputy pulled the girl backwards from her desk, dragged her and handcuffed. One of the student videos of the incident, according to the sheriff’s office, shows the girl, “reaching up and popping the deputy,” before he tips her backwards in the desk. When another student objected to the deputy’s actions, the deputy “detained” the second student also.

While the issues in the South Carolina school district are focused on the races of the parties involved (Deputy Fields is white, the student is black), there are significant issues for Utah schools despite that are significant fewer minority students. (1) Was the deputy an employee of the school district or acting as a police officer? (2) If we, for discussion’s sake, say that he was a school district employee (an SRO NOT loaned to the district/school), was the force he used consistent with Utah law? (3) If, instead of a police deputy, a teacher engaged with the student to make her comply with the teacher’s directions, did the teacher act consistent with professional standards?

Most school districts and many charter schools work with school resource officers who are a frequent presence in the schools. Many districts employ former police officers. Some districts split the cost of a law enforcement employee with a local law enforcement unit. Other districts rely on law enforcement officers who are assigned to the school and remain employees of the law enforcement unit. Law enforcement employees are subject to their police training and rules. One CNN law enforcement consultant said that “If an officer decides to make an arrest, he or she ‘can use whatever force is necessary.'” A school employee would be subject to Utah Code section 53A-11-802 which allows the use of “reasonable and necessary physical restraint or force in self defense or otherwise appropriate to the circumstances” to obtain possession of a weapon/other dangerous object in the child’s possession, protect the child or another from physical injury or protect property from being damaged. If the South Carolina incident occurred in a Utah classroom, despite the student’s alleged recalcitrance or defiance of authority, Utah law would not allow a school employee to pull the student from her desk unles itis reasoanble and necessary in self defense, to obtain a weapon, or protect from physical injury or property damage.

Also, Utah Professional Educator Standards (R277-515) directs Utah educators to provide a safe learning environment for students and directs them to “take action to protect a student from any known condition detrimental to that student’s physical health, mental health, safety or learning ” [emphasis added]. The student’s actions in the South Carolina incident, as reported, do not seem to rise to a level where an educator should physically intervene.

The police department in South Carolina is investigating its officer’s response to the student’s defiance of a teacher directive. The deputy’s supervisor, though defending his employee, also fired him, said his actions were not “typical of the job I expect them [employees] to do,” and said watching the video footage made him “want to throw up.” The FBI and the US Attorneys Office have opened an investigation about federal laws that may have been violated. District policymakers are reviewing what part racial tensions in the community and on the local school board may have played in the single incident. Board members may examine if a police officer should have been called in to the classroom at all under a controversial state “disturbing schools” law.

And all Utah policymakers, parents and educators should remember what is occasionally repeated in the ongoing media coverage of the incident and its aftermath: “it all began with a cell phone and a student in class.” While several of the media articles noted that students in the class quickly pulled out their phones to record the deputy’s actions when he entered the classroom–sensing drama, not one article questioned if the recording devices were part of the problem. Do school policies and interventions adequately anticipate the increasing use, misuse and distraction of cell phones in public schools?

Click here to read the full article.

California Class Action Lawsuit Filed by  Veteran Teachers Who Claim Lack of Due Process and Discrimination

October 26, 2015

Once again, will the drama of the California world of public education—where a couple of mega-districts have 643,000 students compared to Canyon School District’s 33, 674 (2014) students—influence policies in Utah? Last week, an award-winning, LA Unified elementary veteran teacher, Rafe Esquith and 2,000 other educators filed a class action lawsuit against Los Angeles Unified School District (LAUSD). The suit charges that the district has unfairly targeted veteran teachers—some claim to drive them from the school district before they reach retirement age and become eligible for retirement benefits—without adequately explaining the charges against them and pursuing investigations that, in the past, took 10 months to complete.

Mr. Esquith was a fifth grade teacher at Hobart Elementary in Los Angeles. The school has 2,000 students and is said to be one of the largest elementary schools in the nation. 90% of the students’ families live below the poverty level, most are from Korean and Central American immigrant families and none speak English as their first language. LAUSD fired Mr. Esquith last spring. The catalyst for the District’s actions was the teacher’s reading aloud and subsequent comment about a scene in Mark Twain’s The Adventures of Huckleberry Finn. Esquith is said to have read the passage aloud where the naked king comes into the story and, with his body painted, prances around on all fours. He then jokingly cautioned his students that if they did not raise enough money for their annual Shakespeare performance, they may have to come in naked like the king in the story. He was fired soon afterward. The charges against him were found meritless by the California Teacher Credentialing Board, an independent board from the school districts and from the state education office. Since the lawsuit was filed, the school district laid out allegations from past communications: talking about nudity in class, misusing funds raised from the school Shakespeare performances, keeping sexual material on his computer, buying food for students without parental consent and a child abuse allegation against him when he was 17 and working at a Jewish day camp.

Beyond the charges against Mr. Esquith, the class action lawsuit asks the court to grant teachers the same due process rights they would have if they were facing criminal charges—to know the nature of the allegations against them and to face their accusers.

While this case is still unresolved in California, Utah districts could avoid a similar lawsuit by: (1) having a clear progressive disciplinary plan in place and enforcing it; (2) documenting and discussing with an educator concerns about the educator’s conduct or performance; and (3) resisting the temptation to rush to termination over the straw that broke the camel’s back while dredging up old misconduct to justify the termination.  Be sure the educator is aware of his/her misconduct and there is ample documentation that concerns have been communicated to him/her and those concerns have not been remedied.

Fifth Circuit Court Says Texas School District’s Response to Racial Harassment was “Weak but Sufficient”

October 19, 2015

On October 13, 2015, the Fifth Circuit Court of Appeals ruled against Lawanda Fennel-Kinney who filed a lawsuit against Marion Independent School District, a predominantly Caucasian school district located northeast of San Antonio, Texas and two of its employees under Title VI of the Civil Rights Act and under Section 1983, on behalf of her 3 daughters. A three-judge panel dismissed the family’s lawsuit. The three sisters were 18, 15 and 13 in 2012 when the suit was filed. The sisters claimed they were victims of racial harassment, bullying and discrimination while they were enrolled in the school district. The incidents cited in the lawsuit included: the girls’ mom finding a noose and a derogatory note left by the oldest sister’s car which included both the “n-word” and profanity aimed at the girls; several uses of the “n-word” by students toward the girls; a girl’s comment that “Black girls are not pretty enough to be cheerleaders” aimed toward one sister who tried out for cheerleader; a recording of the cheerleader tryouts that was circulated with the title, “Little boy tries out for cheerleading;” and a comment by one Caucasian teacher that one sister was “a bad influence” because she had a child at 17 and another teacher who told a sister’s class that “all Black people are on welfare.”

The defendant school district provided evidence showing that the schools did some things to remedy the incidents: there was an assembly and training, one teacher was suspended from coaching for one game and a letter was placed in her file, one student’s mother was contacted after her student used the n-word and students were instructed not to use the n-word outside of class discussion when the students were studying Huckleberry Finn.

The federal appeals court found that the school district’s response to the alleged pattern of racial bullying and harassment was sufficient to show that the school district was not “deliberately indifferent to the harassment.” The court said that Marion School District took “relatively strong action to address the most egregious incidents.” The court admitted that the school district’s responses to the incidents were “relatively weak,” but they were sufficient to show that the school district’s and employees’ actions were not tantamount to “intentionally subjecting its students to harassment.”

The court dismissed the equal protection claims against the school staff members who said and did discriminatory things because the plaintiffs could not show that the staff members treated the girls worse or differently from similarly situated students.

Click here to read the full court opinion.

Teachers get in trouble for disparaging blog posts, too!!

October 12, 2015

In September 2015, a 3-member panel of the U.S. Court of Appeals for the 3rd Circuit held in the case of Munroe v. Central Bucks School District that a high school English teacher’s blog posts were on matters of public concern. But, the court said that the teacher’s comments caused disruption at the school where she taught—and from which she was dismissed—and that the school district’s interests in that lack of disruption outweighed her interest in making public caustic comments.

Natalie Munroe started a blog in 2009; initially, she wrote about food, film, family and yoga. She soon started writing about her students and co-workers, though she did not use their names or the name of her school.

The substance of her comments—and one blog post figured prominently in the court’s decision—is wryly amusing, but also shocking that a teacher would display such bad judgment. In many schools, teachers use stereotypical comments to fill out report cards, particularly citizenship grades. These comments include typically, “plays well with others,” “does not work to her potential,” “is a self-starter,” “needs constant supervision.” Munroe posted a list she would like added to the prescribed comments which included: “seems smarter than she actually is,” “dunderhead,” “complainer,” “ weirdest kid I’ve ever met,” “utterly loathsome in all imaginable ways,” and “I hate your kid.”

Eventually, students were circulating the teacher’s comments and the comments came to the attention of the administration. Parents did not want their children in Ms. Munroe’s class. The district honored the parent requests. As the situation heated up, Ms. Munroe went on maternity leave for a year, returned a year later and was fired at the end of that school year based on a negative performance review. The district claimed the blog posts did not motivate the dismissal. Munroe challenged the dismissal and a federal district court ruled against the teacher.

The Third Circuit seemed to believe that the blog posts were the basis for Munroe’s dismissal, but the court said it did not have to decide that issue. Instead the court applied the Pickering test (from Pickering v. Board of Education of Township High School District 205, a landmark public employees’ case from 1968). The court “reluctantly” found that Munroe’s wish list of comments she would like to make about students met the Pickering standard for matters of public concern. However, Pickering requires a balancing test: Did the individual demonstrate that his or her speech addresses a matter or matters of public interest and concern? Was the speech a motivating factor in the employer’s decision? And ultimately, the court can balance the interests of the individual commenting on matters of public concern as a citizen and the public employer’s interest in promoting the efficiency of public service.

The majority in the Munroe case determined that Ms. Munroe’s comments on her blog were so disruptive that the school district’s interest in efficiency and civility outweighed the individual’s right to express herself freely—and with vitriol. “We find that Munroe’s various expression of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the school district,” the court said. “Students and parents were . . . presented with a teacher who expressed hostility and disgust against her own students and who, when publicly confronted with her comments, not only refused to apologize—but even went so far as to defend her derogatory statements in the local and national media.”

Click here to read the full court opinion.

What Utah Can Learn From L.A.’s Failed One-To-One Experiment

October 5, 2015

For full article, click here:

LA Unified School District (LAUSD), one of the largest and most diverse school districts in the country, and Apple, Inc. have had a falling out. In a highly-publicized 2013 agreement, LAUSD paid Apple $1.3 billion to give iPads to all teachers, administrators and students in LAUSD. The district has 640,000 students (Granite District has 68,000+ students by comparison) and nearly 1,000 schools (Granite has 94 schools—including special schools). The approximately 40,000 iPads cost LAUD $768 each and were pre-loaded with software from Pearson, a major textbook publisher and online educational tool creator. Apple provided the devices and subcontracted with Pearson to install the curriculum, which added $200 to the cost of each iPad and left Apple legally responsible for any errors.

The FBI is investigating the LAUSD and the bidding process that it used to seal the deal with Apple. But approximately a year later, Apple and LAUSD reached an agreement in September to end their relationship; the agreement must be approved by the LAUSD board of education, expected in October.

Why is this huge settlement and disappointment on all sides important to Utah? Most of Utah’s 41 school districts and many charter schools use 1-to-1 devices with students. Some allow the students to use the devices while attending school and encourage student responsibility by allowing students to buy the devices when they graduate for a nominal fee—or give the used devices to graduating students based on district or school criteria. Utah schools use various devices. In the LAUSD situation, the teachers complained that the iPad with Pearson curriculum was scarce on content, riddled with bugs and difficult to use. The conclusions found in the Utah Smart Schools Technology Report (Second Year) did not reflect the complaints of teachers in LAUSD. The Report did, however, conclude that giving teachers training and strategies to use the devices was crucial: “Teachers and students both responded that the use of the iPad was dependent on the knowledge and skills of the teacher in integrating technology into their instruction. Considering this response, if mobile technology is placed in schools it would appear imperative that teachers receive professional development not only in how to navigate about the iPad, but how to integrate mobile technology into their classroom instruction appropriately.”

The failed LAUSD experiment also noted that simply handing out tablets did not automatically shrink the achievement gap (among students) and widened it in some cases. It was noted, according to a recent Pew Research survey, that many Black and Latino students did not benefit from the devices because they lacked WiFi access at home. Interestingly, the demographics of the schools participating in the Utah Smart School Technology Project are overwhelmingly white/Caucasian. Also, the student achievement of the students in the Utah Project was reported only as CRT scores in 2012 and 2013 and will be difficult to compare to SAGE scores in 2014 and 2015. Also interesting, one LA Times article noted that one of the concerns with the use of the iPads was that high school students readily found work-arounds for the filters installed on the devices.

It may be several years before Utahns can assess whether the $3,000,000 Legislative investment in increased and individualized technology devices for students that began in 2012 as a 3-year pilot program “outsmarts” the LAUSD debacle. See the Second Utah Smart Schools Technology Project Report at http://le.utah.gov/interim/2014/pdf/00004506.pdf

North Carolina Teen Prosecuted for Having Naked Images of Himself on His Phone  

September 28, 2015

For full article click here:

A 16 year old male in North Carolina was recently prosecuted as an adult when he and his sixteen year old girlfriend were discovered to have nude pictures of themselves on their cell phones.  The girl took a plea deal to avoid prosecution.  In cases where minors take nude photos of themselves and send them to other minors, they are technically both perpetrators and victims of child pornography or some variation of child porn.   This of course presents a legal dilemma for lawyers and courts.  In this case, the prosecutors treated the male as both simultaneously the adult perpetrator who is considered an adult predator and the minor victim who needs protecting by the law.

The North Carolina Guardian reported that federal child abuse image felony laws apply to every state. Some states have enacted legislation, often nicknamed Romeo and Juliet laws, to avoid prosecuting teenagers who exchange naked pictures with each other as a couple where there is no exploitation. In many states it is still a misdemeanor offence; in others it is a so-called informal offense, where the teens are obliged to submit to “diversion” education about making responsible choices. In the other 30 states there is no “sexting” rule to mitigate the child abuse image laws as they apply to teenage lovers consensually exchanging images purely within their relationship, or possessing nude selfies individually. In a few states, teens are prosecuted for possessing these images, though the exchange and possession may be entirely consensual.

Utah has no specific sexting law, but various definitions and provisions of the Utah Criminal Code could result in a teen, could be prosecuted for various sexual offenses—ie, sexual exploitation of a minor (Utah Code 76-5b-201), dealing in harmful substances to a minor (Utah Code 76-10-1206), and distribution of pornography (76-10-1204) with penalties ranging from 2nd degree felonies down through misdemeanor offenses.

The teen age boy in North Carolina agreed to a plea deal that will prevent him from going to prison or having to register as a sex offender. But he will be on probation for a year, during which he’ll be subject to warrantless searches.  In addition, both teens’ plea deals will cause them to forego the use of cell phones for a year!

Lesson learned: Students can and are prosecuted for sexting.  Ensure the students at your school have a clear understanding of the legal implications involved in what has become just another way of flirting for kids.