A Spotlight on Discriminatory Discipline 

In January, a major study showed, among other findings, that black and Hispanic students are suspended at higher rates than their non-Hispanic white counterparts, and that the differences often are not attributable to different levels of misbehavior.

In late March, a Mississippi school district entered into a consent decree with the U.S. Department of Justice to address reported discriminatory use of “exclusionary discipline” such as suspension, expulsion and school-based arrest, often for minor infractions, among black students, and use of harsher discipline for black students, even when white peers of similar ages and with similar disciplinary histories committed comparable misbehavior at the same schools.

In April, the Legal Aid of North Carolina filed a complaint with the Department of Education’s Office for Civil Rights (OCR) alleging that a North Carolina district violated a civil rights law, Title VI of the Civil Rights Act of 1964, by suspending black students and students with disabilities at far higher rates than white students and students without disabilities.

Finally, this week parents and students reportedly filed a lawsuit against police officers and the school board in Compton, California, seeking $41.4 million in damages for disproportionate use of unlawful arrest, excessive force, racial profiling, and racial discrimination by police and police liaison officers in schools.

Tips and Tricks 

Although the severe abuses alleged in these cases are extreme, and although disproportionate disciplinary numbers do not always establish discrimination, the spotlight on discriminatory discipline make clear that schools and school districts with disproportionate disciplinary records are at risk of legal challenges from all directions.

Here are a few tips and tricks for school leaders who wish to take a proactive approach to prevent students of one group from being disciplined more or more harshly than others and to mitigate the risk of lawsuits and complaints like those described above:

Although no steps can prevent a legal challenge, and even after such steps are taken disproportions in the numbers for a school or school district may remain, if school district shows that it has analyzed data and taken steps to address any inconsistencies, it will help if ever necessary to defend against allegations of discriminatory use of discipline. Conducting such an analysis also helps a school district show students, parents, and the community that it takes these concerns seriously and wants to prevent disproportionate discipline in its schools, regardless of the legal risks.

The post Tips and Tricks: Avoiding Discriminatory Discipline of Groups of Students appeared first on Education Law Insights.

The Decision

The case, G.C. v. Owensboro Public Schools, dealt with a student, G.C., who was involved in a string of disciplinary incidents and had communicated to school officials that he was suicidal. During his freshman year, school officials searched G.C.’s phone after an incident where he walked out of a meeting with a prevention coordinator, left the school building without permission, made a phone call to his father in the parking lot and was found in the parking lot with tobacco products in plain view. The school official who searched the phone cited concerns that the student was going to harm himself as a basis for conducting the search.

That fall, at the beginning of his sophomore year, G.C. violated the school cell phone policy by using his phone to send text messages during class. His teacher confiscated the phone and delivered it to another administrator. The administrator read four text messages on the phone in an effort to see if there was evidence that he was going to harm himself. Although no evidence of misconduct was found on the phone, G.C., who was attending the school as an out-of-district student, was told that he had lost his privileges to attend Owensboro High School because of his behavior.

The Sixth Circuit Court of Appeals, addressed a number of issues in its decision, including whether the school district was required to provide G.C. a hearing before telling him he could not attend the high school (it was) and whether the school discriminated against him based on Section 504 of the Rehabilitation Act (it did not). But the most interesting element of the decision dealt with whether the school officials were justified in searching the student’s cell phone.

As Education Week reported, the court found that the first cell phone search during G.C.’s freshman year was acceptable, but the search during his sophomore year was not. The court cited the U.S. Supreme Court standard for searches of student property, from New Jersey v. T.L.O, which provides that a search of a student should be reasonable, meaning that it is justified at its inception and reasonable in scope. When is that the case?

• A search is justified in its inception when there are reasonable grounds for suspecting that the search will lead to evidence that a student has violated or is violating the law or the rules of the school, or is in imminent danger of injury of him- or herself or another person on school premises.
• A search is permissible in its scope if the measures used are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

In G.C.’s case, the court said G.C. conceded that the search of his phone during his freshman year, when an assistant principal checked for evidence that the student was contemplating suicide, was reasonable under the circumstances. There was reason to believe—based on the sequence of events—that G.C. was contemplating injuring himself or breaking additional school rules.

But the September 2009 search after G.C. was caught texting in class was not justified at its inception or reasonable in scope. The school only relied on generalized concerns about G.C. harming himself, which was not enough to justify the search.

Takeaways for School Leaders

As a New York Times editorial put it, the G.C. case makes clear that “[t]here is no unlimited right to search any content on a phone.” School leaders should keep in mind the following insights from the case when considering when the right to search a cell phone or other student technology exists:

• Any search of student technology must be justified at its inception, which means there must be reasonable suspicion that the search will uncover evidence of further wrongdoing or of injury to the student or another. Not all infractions involving cell phones will present such indications.
• A student’s violation of a school rule or a state, federal or local law using personal technology is likely sufficient to justify a search at its inception. But the search must also be reasonable in scope. The mere fact that a student has violated a school district rule or a state or federal law with the phone does not justify searching the student’s technology without limit.
• General background knowledge of drug abuse, depressive tendencies by a student or other violations of law or school district policy, without more, are typically not enough to justify a search at the inception.
• Any search relating to the violation of a rule or law must be limited to that necessary to establish that violation and not any other unrelated violation. For instance, if a student who is suspected of dealing drugs at school is caught violating a school rule against texting during the school day, school leaders may not search his phone for evidence of drug dealing as that is unrelated to the texting violation at issue.
• If the school official conducting a reasonably narrow search comes across information about a violation of a school rule or a law unrelated to the initial search, it may be justified in a further search. For instance, imagine a situation where a student denies sending text messages during class and the phone is confiscated and searched to see at what time messages were sent. Imagine that, in order to see the time a message was sent, the school official must open the text of the message itself. If, during that search, a message pops up, sent during class hours, in which the student discusses selling drugs to another student between classes, a good faith argument likely can be made that the school officials can discipline the student for attempting to deal drugs at school. School officials therefore arguably would be justified in searching the phone for further evidence of drug dealing. This issue has yet to be tested in the courts, though, and will require a case-by-case factual analysis, so school officials may wish to contact legal counsel before searching a cell phone further.
• School officials should never attempt to use a student’s technology to obtain information about wide-scale situations within the school that are only tangentially related to the student’s offense. For example, school officials should not attempt to text, call or email other students on behalf of the owner of the technology in an effort to obtain more information about an ongoing situation at school.

The post Sixth Circuit Rules School’s Search of Student Cellphone Violated Fourth Amendment appeared first on Education Law Insights.

On the one hand, families of transgender students, such as the Colorado student, argue that requiring a student to use a gender-neutral, separate facilities creates a stigma. If the facilities are difficult or time-consuming to access, families may see the request as unduly burdensome on the student. On the other hand, schools may have to balance the rights of the transgender students with other factors, such as the rights of other students and the need to maintain discipline.

The Colorado case provides an example of a situation in which the school believed the balance tipped against allowing the transgender student to use the girls’ restroom. The school allowed the student to wear female clothing to school and to be referred to as a female. The school also allowed the student to use a “gender neutral” bathroom in the school health room. In denying the student access to the girls’ bathroom, the school cited concerns about what would occur as the student, who was born a male, grew older and developed male physical characteristics. The school indicated that parents of students who were born female might have legitimate concerns with the transgender student using the same single-sex facilities as their daughters even if the student identifies and presents as female.

Such a decision is not without precedent. In Doe v. Clenchy, a court in Maine held that a school district could deny a transgender student’s request to use the female restrooms at school. The school allowed the student to use the restroom through the fifth grade, but that year a male student walked into the girls’ restroom while the transgender student and some of her friends were washing their hands. When confronted by administration the student said that his grandfather and guardian said if the transgender student could use the girls’ restroom, so could he. The court recognized that the school was placed in a difficult situation because of the desire of a student’s grandfather and guardian “to make a social statement.” The court also noted that it appeared inevitable that a controversy might arise since the parents of the transgender student had agreed to reevaluate the request if the parents of female students complained. The court found that the transgender student’s rights were not violated by the decision to require her to use a gender-neutral restroom in light of the facts of the case.

It is unclear, however, whether other courts would agree with the Maine court if asked to address a similar issue. As the ACLU explains, certain states—California, Iowa, Minnesota, New Jersey, Oregon, Vermont, and Washington—have laws that protect transgender students from discrimination and harassment. For students in other states, the federal law known as Title IX prohibits, among other things, gender-based harassment, including harassment based on the failure to conform with gender stereotypes. Courts have not grappled with whether or how these laws might play out in the school context with respect to single-sex facilities.

In light of the uncertainty in this area of law, schools are left with much discretion in how to handle requests from transgender students and their families to use single-sex facilities. But with that discretion comes significant risks. To lower those risks, schools should not require a student to use the single-sex facilities for his or her birth gender as that decision would almost undoubtedly lead to a legal challenge. The school can offer to allow the student to use a gender-neutral facility for staff or students if doing so would not be a hardship on the student getting to or from class or activities. Or the school can consider more creative, inclusive approaches, like the decision of one Oregon high school which reportedly made unisex bathrooms available to all students. If none of those options are available, the school may have to honor a request to use the single-gender facilities with which the student identifies. And even if other options are available, a school should carefully consider a request by a transgender student to use the facilities for the gender with which he or she identifies. School administrators should provide the transgender student’s family a full opportunity to be heard and should openly assess any concerns that might be raised by other students’ families or the community. Depending on the school’s final decision, opening the lines of communication may not remove the risk of legal challenges completely, but can often help.

*Editor’s note: This blog post originally indicated that the school district is facing a lawsuit by the family, but the post has been revised to reflect that the complaint was filed with the Colorado Civil Rights Division. Information about the complaint can be found in a press release issued by the Transgender Legal Defense & Education Fund (TLDEF), which filed the complaint on the family’s behalf.

The post Colorado School Denies Six-Year-Old Transgender Student’s Request to Use Girls’ Bathroom appeared first on Education Law Insights.

A lawsuit filed early this year against the school district by three anonymous students alleges that the portrait of Jesus was a gift to the school by a Christian student club and is therefore the school’s speech. Because it is religious in nature and there is no secular purpose for hanging the picture, the lawsuit argues that hanging it in the school violates the First Amendment’s prohibition against establishment of religion. In February, the school board voted to allow the picture to remain despite the lawsuit, saying that the portrait is not owned by the school but rather belongs to a Christian student club. The recent move of the portrait to a new school purportedly was a decision of the student club, not the school. The school suggested that removing the portrait would violate the First Amendment rights of the students in the Christian club. Which side is right?

There is not an easy answer, as is often the case with religious school speech questions. A first important consideration will be the context in which the portrait is hung. As the ACLU’s initial letter to the Ohio school district explained, courts are generally skeptical of religious displays, including religious works of art, that appear to be government sponsored unless there is a clear secular purpose behind the display. Examples of secular displays might include a display that includes art work from a number of different religions in an effort to teach students about the impact of religion on art or a display in which students are allowed to hang photographs of their choice and a student submits a religious photograph for the display. In contrast, courts have held particular works of art to violate the Establishment Clause where they are relatively isolated from other government-sponsored displays. The ACLU’s letter alleged that the Jesus portrait at issue here was not in a larger display of “world-renowned historical or religious figures,” and rather was hung in the middle school near portraits of alumni of the school. If those facts are true, and if the move to the high school did not remedy the problem, a court would be much more likely to find the portrait to be unconstitutional.

A second issue that will be considered is whether the portrait really was a gift by a student club to the school district or, as the school now maintains, the student club retained ownership and control over the portrait for the past 65 years. In a 1994 case from the Sixth Circuit—the highest appellate court with jurisdiction over Ohio as well as Michigan, Kentucky and Tennessee—the court held that a nearly identical portrait of Jesus that had been donated to the school was unconstitutional because it was neither part of a group of paintings nor used in conjunction with any class or educational program. Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 681 (6th Cir. 1994). Under that precedent, if the Jesus portrait at issue here truly has been under the control of the school for decades, the portrait may be unconstitutional. A more difficult question exists, however, if the portrait is seen to be the speech of the Christian club. If so, the court will likely consider whether the school district has truly opened up a forum for all organizations and clubs to hang similar works of art or materials relevant to their missions, or if the claim that such a forum exists is pretense for supporting just this specific Christian speech.

In light of the school district’s decisions to allow the portrait to remain and to move the portrait to another public school in the district, it seems likely that litigation on this issue will continue. The case is an important reminder to schools that care should be taken with respect to religious displays in schools. Although such displays are permissible, and may, depending on the context, even be required, schools should be confident that such displays do not constitute an unconstitutional establishment of religion before allowing them.

The post Jesus Painting in Ohio Middle School: The Right Choice? appeared first on Education Law Insights.

Background

By way of background, the letter reportedly was released during a White House event on teen dating violence prevention, which was part of National Teen Dating Violence Awareness and Prevention Month and the Obama Administration’s efforts to raise awareness of gender-based violence. A press release issued by the Department suggests that the purpose of the letter was to make clear that although strategies to improve school climate and reduce bullying are critical, they may not be adequate to address the harms of gender-based violence.

Gender-Based Violence Defined

So what is gender based violence? Examples from the letter are sexual assault, intimate partner or teen dating violence, stalking, and “other behaviors that degrade and harm children and youths, such as human trafficking.” The letter explains that gender-based violence occurs with both male and female victims, and that it can occur as early as elementary school. The letter includes statistics about the incidence of gender-based violence in schools as well as the harm that such violence can cause students.

Responding to Allegations of Gender-Based Violence

The letter suggests that schools should continue to use the tools they use for responding to bullying and harassment when responding to gender-based violence. These include strengthening students’ social and emotional skills, developing educator capacity to engage students and families, implementing multitiered behavioral supports and educating communities about prevention and identification.

But the letter also encourages schools to develop “locally tailored responses” to address incidences of gender-based violence, using “a comprehensive approach” that takes into account the unique challenges that these offenses present (e.g., victim reluctance to report, trauma from sexual violence). But the letter gives no insight into what such a response would look like.

Two previous letters issued by the Department shed some light on what a locally tailored response might include. A November 2010 letter made clear, for instance, that a school must take the following steps to respond to bullying and harassment claims, including claims of bullying and harassment based on gender:

1. intervene immediately to stop the alleged conduct;
2. conduct a prompt, thorough, and impartial investigation to determine if harassment is creating a hostile environment; and
3. if a hostile environment exists, take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, and prevent reoccurrence.

A 2011 letter more specifically addressed sexual violence, defined as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent” due to use of drugs or alcohol or because of an intellectual or other disability. The letter made clear that schools must conduct their own thorough investigation of claims of sexual violence concerning students, even if the alleged conduct occurs off grounds. The letter provided a number of guidelines for the procedure to be followed when adjudicating claims of sexual violence, such as using a “preponderance of the evidence” standard and certain due process rights required for both the alleged victim and perpetrator. And the letter reminded schools they must take steps to protect the alleged victim during the investigation stage.

Based on these letters, if gender-based violence is suspected or alleged, school leaders should promptly and thoroughly investigate the claim. This is true even if the alleged incident occurred off campus, so long as there is a sufficient nexus to the school environment. During the investigation, the school should take prompt and effective action to make alleged victims feel safe, which might include offering an escort to classes or offering tutoring and schedule changes. Special attention should be paid to addressing the trauma from gender-based violence, such as by providing the alleged victim counseling support or other services as warranted. Schools also should not rely on police investigations or wait for them to conclude before conducting their own investigations.

The most recent Dear Colleague letter also encourages schools to do the following before any claims of gender-based violence are even raised:

• Communicate the issue to raise awareness about the problem of gender-based violence by developing an information campaign for students, faculty, and parents.
• Educate students and staff through training on the behaviors of victims and perpetrators of gender-based violence, how to respond when incidents occur, and the resources that are available for those who have been victimized. Consider how such training can be integrated into the schools’ broader efforts to create a positive school climate, and delivered as part of a multitiered framework for supporting positive student behavior.
• Review policies and procedures governing student and faculty behavior – particularly protocols for intervention, reporting, and providing victim assistance – to ensure that they specifically address sexual assault, stalking, and intimate partner violence.
• Engage the community by building relationships with community groups and organizations that provide services to victims of gender-based violence to increase awareness of community supports and resources available for students and educators. Examples include local law enforcement and staff from organizations established to assist victims of gender-based crimes.

Taking these steps before any allegation of gender-based violence is made can insulate a school against criticism that it has not taken a firm stance against such violence in its schools.

Resources

The letter referenced resources that schools can use to address claims of gender-based violence. A “What Schools Can Do” toolkit was issued with the letter that includes a number of resources, and the Department’s National Center on Safe Supportive Learning Environments also released a training module – Get Smart, Get Help, Get Safe – at the same time as the Department’s letter to help school nurses, school counselors, and school psychologists identify and respond appropriately to signs of abuse. School leaders should be aware that any response to a claim of gender-based violence, other sexual violence, or bullying or harassment based on a protected characteristic like gender is liable to bring significant scrutiny from the students involved, the parents of the students, the community, and the Department and OCR. It is more important than ever to take steps to adequately train the staff who are on the frontline of dealing with such complaints, as well as to work with legal counsel when allegations are received to ensure compliance with the Department’s guidelines.

The post Department of Education Asks School Leaders to Address Gender-Based Violence appeared first on Education Law Insights.

Let’s address the following questions: (1) Why does it matter? (2) Are digital communications student records? and (3) How do I respond to a broad student records request for digital communications?

Why does it matter?

Whether emails and other digital communications are student records is important for two reasons. First, your state law may require your school to maintain student records for a certain time period. InIllinois, for example, the Illinois School Student Record Act suggests that temporary student records be maintained for five years after a student withdraws or graduates from school. Second, parents and students have the right to review and, in some cases, receive copies of student records.

What does this mean in the digital world? If digital communications are student records, schools may not be able to delete them as they do other records. And if a student requests digital communications, schools may be required to search through potentially tens of thousands of emails to respond to the request.

Are digital communications student records?

The short answer is that in most jurisdictions, courts have not answered this question. There is an argument that digital communications are not student records, even if a student can be identified therein, unless they have been printed out and maintained in a physical file for the student. But only one trial court appears to have addressed this issue head on and it is not clear whether appellate courts or even trial courts in other jurisdictions will agree. Accordingly, the safest approach is to continue to treat digital communications as student records until there is more clarity in the law.

In a 2002 case, the United States Supreme Court suggested that Congress envisioned FERPA applying only to files kept in a central file by a records custodian designated by the school, not to every record that might be generated across the school district by which a student can be identified. In Owasso Independent School Dist. No. I-011 v. Falvo, the Supreme Court found that students’ assignments are not educational records under FERPA. 534U.S. 426. In so doing, the Court clarified that not every record in a school concerning a student is an education record. The Court looked to a provision in FERPA, 20 U.S.C. § 1232g(b)(4)(A), which requires that a record of access be kept when a request for student records is made. That record must be kept “with the education records” of the student. The Court found that this suggested that Congress intended that education records would be kept in one place. Moreover, FERPA requires that a “school official” and “his assistants” are responsible for the custody of the records. The Court indicated that this implies that “education records are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.”  534U.S. at 434–435.

Although Oswasso did not deal with digital communications like emails, the broad language in the case suggests that digital communications, which are maintained not with the student’s educational file but rather in the inboxes and outboxes of numerous school professionals, are not “maintained by” the school and so are not education records under FERPA. The same reasoning could be applied under state statutes, like the ones in Illinois and California, that use similar language to FERPA.

Indeed, the one court that has addressed the issue directly held, based on Owasso, that emails are not education records as defined by FERPA. A California special education student sued after his school refused to release emails in response to a request for records under the Individuals with Disabilities Education Act (IDEA). The IDEA requires schools to release records to students that fall within the definition of “education records” found in FERPA. The California court found that emails are not “education records” under FERPA because they are not “maintained” by a school unless they have been printed out and placed in a student’s actual file. S.A. v. Tulare County Office of Education, 2009 Westlaw 3126322 (E.D.Cal). Relying on Owasso, theCalifornia court explained:

Emails, like assignments passed through the hands of students, have a fleeting nature. An email may be sent, received, read, and deleted within moments. As such, Student’s assertion – that all emails that identify Student, whether in individual inboxes or the retrievable electronic database, are maintained ‘in the same way the registrar maintains a student’s folder in a permanent file’ – is ‘fanciful.’ Like individual assignments that are handled by many student graders, emails may appear in the inboxes of many individuals at the educational institution. FERPA does not contemplate that education records are maintained in numerous places. As the [Supreme Court in Owasso] set forth . . . ‘Congress contemplated that education records would be kept in one place with a single record of access.’”

The court found that “[only those] emails that are printed and placed in Student’s file are ‘maintained’” under case law interpreting the meaning of FERPA and the IDEA.”

So, there is good reason to believe that emails, texts, Tweets, and other digital communications between teachers, administrators, parents, and students about students are not student records unless they are maintained in the student’s file. Nonetheless, because of the dearth of case law on this issue, the question is far from settled. Moreover, parents have shown a willingness to file lawsuits seeking records. School districts that do not wish to face a legal challenge may take the more conservative approach and treat emails and other digital communications as student records.

How do I respond to a broad records request for digital communications?

If a school district does not wish to fight a legal battle over a student records request for digital communications about a student, there are nonetheless ways to limit the impact of an overbroad request. These include:

• Directing school employees and agents to avoid the use of school email to communicate about students to the greatest extent possible. Indeed, the Department of Education has made clear that email is not secure enough to use for sending certain types of student information, such as grades, to students.
• Directing school employees and agents not to use their personal phones, email accounts, Twitter, and other social media accounts and other personal technology to communicate with other staff, students, parents or teachers about students. If they do so, it can create an administrative headache if a student records request is made for records created through those mediums. Just obtaining access to the records can be a challenge, especially in light of laws in some states prohibiting public employees from demanding access to or information from employees’ social media websites (a recent article I wrote on the Illinois law can be found here). As our friends over at @MunicipalMinute recently reported, a similar federal law is currently pending in Congress. If school employees do choose to use personal technology to communicate with students, they should sign an acknowledgement recognizing limitations in Board policies on their reasonable expectation of privacy to those records and of the fact that they may be required to turn the records or even their personal technological devices over to the school to the extent allowed by law.
• If a parent makes a blanket request for digital communications the school can ask the parent to limit the scope of the request before it responds. The Department of Education has made clear that it is the parent’s responsibility to “clearly specify” what records they are seeking, and all that the school is required to do is conduct a “reasonable search.” If the parent believes a school’s response has not provided certain records, it is the parent’s responsibility to specify the records he or she thinks exist and have not been produced. Let’s say a parent asks for all emails about their student, a seventh grader in a K-8 school district. The school could ask the parent what type of digital communications they are seeking and on what topic, and use that information to greatly narrow the search.

A big thanks to Bobby Truhe (@btruhe) for the suggestion of this interesting topic. If any other readers have suggestions for topics for the blog, please send me a Tweet at @EdLawInsights or email me at jfw@franczek.com.

The post Are Emails, Texts, Tweets, and Other Digital Communications Student Records Under FERPA and State Law? appeared first on Education Law Insights.

Each Tuesday the #Edchat hashtag brings together educators from across the globe to discuss education-related topics on Twitter. (For those wondering “What is #Edchat,” one of the founders describes the movement here.) Last week one of the questions on #Edchat was “How do we train educators to teach in programs like BYOD and 1:1?” The chat was timely because the Internet is abuzz with questions about whether BYOD programs and 1:1 programs have a place in the classroom. BYOD programs are programs through which schools tell students “bring your own devices” to the classroom for pedagogical use, and 1:1 programs are programs through which schools equip each student with a school-owned electronic device for school-related use.

As the transcript shows, there was a lively conversation with hundreds of Tweets discussing the benefits of BYOD and 1:1 programs. For instance, participants pointed out that BYOD and 1:1 programs allow technology to be more seamlessly integrated into the classroom in ways the traditional computer lab never allows. Participants also noted that use of technology in the classroom can help turn students from “tech comfy” to “tech savvy.” (The idea is described more here.)

The participants also pointed out some of the risks of BYOD and 1:1 programs. As one participant put it, “Moving forward with 1:1 without preparing teachers properly creates school culture and pedagogical problems.” But there are also important legal risks, and school districts should not move forward with BYOD or 1:1 programs without preparing educators to understand those risks, as well. I pointed this out in a few Tweets, and was asked by some participants to provide some resources about those legal risks.

Although there can always be another legal issue lurking around the corner, here are some of the legal risks about which educators must be aware before moving forward with BYOD and 1:1 programs.

• Student Fees. Most BYOD and 1:1 programs require students and their parents to expend funds. For BYOD programs, students and parents must buy a device. For 1:1 programs, there is usually a deposit and/or insurance payment required. Careful attention should be paid to whether these programs can be implemented equitably for students who do not have the means to participate.
• Student Records. Certain materials created by or about students are “student records” under state and federal student records laws, including the Federal Educational Rights and  Privacy Act (FERPA). State law may require retention of such records for a specified period of time. It is unclear whether materials created by students on electronic devices in classes are such student records, but this issue should be addressed under relevant law before a BYOD or 1:1 program is implemented to prevent challenges from parents wishing to review materials created electronically in class.
• Inappropriate Content. If a student accesses the Internet on a traditional computer owned and operated by the school, there are filters required by federal law that prevent the student’s from accessing inappropriate content such as pornography. But what if a student accesses his own device during class through his wireless signal? Best practice is probably to require students to only access their BOYD devices through the school Wi-Fi account to avoid the risk of students viewing inappropriate material at that time. Although some have taken issue with such restrictive policies, I am not persuaded that allowing students to access devices on their own, unfiltered wireless signals creates less legal risk. Moreover, teachers may need to take a more active role with more traditional forms of supervision when students are using BYOD and 1:1 devices to prevent against use for inappropriate means. This might include walking around the classroom to check what students are viewing.
• Intellectual Property. If a teacher creates a course lesson using a BYOD or 1:1 device, or students and the teacher create content on the device, who owns the copyright of the materials? This issue should be addressed clearly in school board policy, and teachers should be aware of who owns content they and their students create in class before implementing a BYOD or 1:1 program.
• Bullying/Cyberbullying and Sexting. Once a student is using an electronic device in the classroom, he or she may veer off course and use the device to bully or cyberbully or send sexually explicit content to other students. Educators must have a plan for how to determine whether such activity is occurring, which may include electronic or more traditional forms of supervision of student activities on the devices. It is also advisable to tell students that when they are using even a BYOD device in the classroom, their First Amendment rights are limited. And the same limitations can be applied when a student is using a 1:1 device anywhere or at anytime. Setting these limitations and notifying students of them will allow for discipline of conduct that occurs on the devices without successful First Amendment challenges by students and parents.
• Educator Ethics/Teacher Boundary Issues. Technology breaks down barriers between students and teachers, which can be a good thing. But it can also be a bad thing if the lines between professional educator and friend are blurred. If a teacher is using his or her own personal electronic device to communicate with students inside the classroom, there is a greater risk of him or her doing so outside of the classroom. Special care should be taken to ensure that educators are properly trained on educator ethics and teacher/student boundary issues before a BYOD or 1:1 program is implemented. Rules should also address when and how teachers can communicate with students through technology to avoid inadvisable contact outside of school hours.
• Privacy Considerations. Does a student or teacher give up his or her Fourth Amendment rights against unreasonable searches and seizures simply because the student or teacher is using a BYOD or 1:1 device at school? Can a school randomly search all of the BYOD or 1:1 devices at any time without individualized suspicion of wrongdoing by the user? If the school knows of misconduct of one type (e.g., bullying) on a BYOD or 1:1 device can a student be punished if a search shows evidence of another type of misconduct (e.g., drug sale)? Teachers and administrators need to be armed with knowledge of how the Fourth Amendment applies in this context before moving forward with a BYOD or 1:1 program.
• Are Your Policies Keeping Up? Most school board policies were drafted in the days before the technology revolution. School districts need to take a close look at whether policies on non-tech issues are keeping up with the EdTech revolution, addressing all of the points above as well as many others before implementing a BYOD or 1:1 program.

As these topics make clear, the legal world of BYOD and 1:1 is still murky. Educators should pay just as close attention to creating a legally sound BYOD or 1:1 program as they do to creating a pedagogically sound program. This does not mean that a program cannot be successfully implemented – it can! But it is important to consult with the school board attorney to make sure policies are adequate, educators are prepared through professional development on legal issues, and students are aware of their rights and limitations before implementing BYOD and 1:1 programs in schools.

The post Legal Issues for BYOD and 1:1 Programs in Schools: #Edchat Follow-Up appeared first on Education Law Insights.

The Illinois State Board of Education reported in its recent Superintendent’s Message that the Spanish-language “stopbullying” website includes the following resources:

• Training Module with Speaker Notes – a presentation with suggested talking points, including the latest research to help participants create an action plan for a community event.
• Training Module PowerPoint – a slide-by-slide presentation for use at a community event, workshop, or town hall meeting.
• Community Action Toolkit – a supplemental guide, including tip sheets, a template event agenda, action planning matrix, and feedback forms.
• Misdirections Packet – a Tip Sheet  and a Spanish transcript of the Misdirections video featuring Dr. Catherine Bradshaw, a national expert in bullying prevention who discusses approaches to avoid in bullying prevention and response.

The Spanish-language resource is a reflection of the challenges school districts face in juggling bullying concerns and concerns relating to communicating with English Language Learners and students and parents with LEP. When LEP students, parents, staff and community members are at issue, it can be even more difficult for school districts to comply with recent Department of Education Office for Civil Rights (OCR) requirements to prevent and address certain types of bullying, such as bullying based on ethnic background or race. For students and parents with linguistic challenges, this may include education on and responses to bullying in a language other than English.

Moreover, recent lawsuits make clear that educating staff and community members about bullying in schools and how to report it is important. Responding to such reports in a meaningful way is also important. One recent lawsuit reportedly filed by a former school district employee inArizona, for instance, alleges that the school district did not respond to her reports that an ELL student was being bullied for his strong accent, among other things.

The post USDOE Spanish Bullying Website Highlights Challenges in Addressing Bullying with LEP Students, Parents, Staff, and Community Members appeared first on Education Law Insights.

The editorial was written against the backdrop of a recent Illinois lawsuit, For the Good of Illinois v. State of Illinois, Office of Comptroller, 13CH00257, which was filed in the Circuit Court of Cook County in early January. As explained in the complaint, For the Good of Illinois (FGI) operates a website, www.openthebooks.com, which is a searchable website that contains financial records from public bodies. According to the FGI website, the website includes “7 million lines of public employment data covering over 95% of Illinois public employment and $236 billion of public employment pay, pension and worker compensation claims.” The complaint indicates that that FGI obtained such information from, among other public bodies, 944 local school districts and 36 colleges and universities.

In April, 2012, FGI submitted a request for records to the Illinois Office of the Comptroller under the Illinois FOIA. The request sought a copy of financial records from the Comptroller showing payments made to vendors of the State of Illinois. The Comptroller denied the request as unduly burdensome, saying that “[t]he requested records would number in the millions” and that “[t]he review, redaction, and arrangement of all 2011 vendor payments would take multiple staff members, dedicated solely to this request more than three days to complete.”

FGI appealed the decision to the Illinois Attorney General’s Public Access Counselor (PAC). In its response to the PAC, the Comptroller explained that when she took office in January, 2011, she inherited a computer system that contains “voluminous data which presents difficulty in extracting.” FGI maintains that the Comptroller’s response – and the fact that the other public bodies who received identical requests from FGI responded without any undue burden – indicated that any undue burden associated with the Comptroller’s response was due to its own inefficiency in maintaining records.

The Chicago Tribune editorial suggests that this undue burden “loophole” is an “absurd exemption” that has allowed governments to “exploit[ ] the exemption to duck legitimate records requests.” The Tribune editors argued that “[t]he exemption provides a disincentive to user-friendly record keeping. If governments can avoid releasing clearly public documents by asserting that it would be too much trouble to produce them, why in the world would they maintain records any other way?” The editorial suggests that lawmakers should remove the exception from the law completely or, at least, “insist that state agencies build their databases from the ground up to promote transparency, not to thwart it.”

Although a reasonable requirement that public bodies not use technology as an excuse to thwart public access to records might have a place in public records laws like FOIA, any suggestion that the undue burden exemption should be removed completely from this or any other FOIA law ignores the importance of the exception for preventing abuse of the FOIA system by requesters. Since the most recent overhaul of the Illinois FOIA law in 2009, our clients and other public bodies have reported an uptick in the number of FOIA requests they must address, and many of the requests are broad and categorical and would require significant diversion of public resources to address. The undue burden exemption provides a much needed protection against these types of requests.

This important protection for public bodies and public resources is especially justifiable where public access laws in Illinois and elsewhere have been interpreted in a way to that mitigates the risk of abuse by public bodies. In Illinois, for example, the FOIA law requires that a public body give a requester an opportunity to narrow a request before the public body can deny the request as unduly burdensome. This second bite at the apple ensures that a requester has a fair opportunity to craft a manageable request. Similarly, Illinois courts have made clear that the mere fact that a public body will have to expend valuable labor and computer time to respond to a request does not warrant invoking the exemption. For example, one Illinois court determined that where a FOIA request sought information about an issue that had garnered national attention on an issue of vital importance to the criminal justice system, a public body could not claim an undue burden even if it must dedicate full-time personnel who possess a high level of knowledge and sophistication for several weeks to fulfill the request. Although there are questions about if and how such a standard would be applied on different facts, the case makes clear that protections are in place for FOIA requesters to challenge a public body’s use of the undue burden exemption. Where FOIA requests seek less weighty information, however, and where the burden on the public body is disproportionately severe, the undue burden exemption is an important way to protect public resources against unduly burdensome FOIA requests.

The post Balancing the Burdens of Transparency in the Illinois Freedom of Information Act appeared first on Education Law Insights.

The Facts

In 2010-2011, Jennifer O’Brien was a veteran teacher with over a decade of experience in the Paterson, New Jersey public schools. At the start of the 2010-2011 school year, Paterson unexpectedly was assigned to teach first grade at a new school that was predominately comprised of minority students, including African-Americans and Latinos. All of the students in her class, in fact, were either Latino or African-American.

O’Brien began to believe that six or seven of the students in her class had behavioral problems, which were having an adverse impact on her classroom environment. One student struck her, another stole money from her and other students, and some students hit each other.

O’Brien responded to these issues by sending disciplinary referrals to the school administrators on several occasions, but she thought the referrals had not been addressed adequately. O’Brien then posted two posts on her Facebook page relating to the issues:

“I’m not a teacher—I’m a warden for future criminals!”

“They had a scared straight program in school—why couldn’t [I] bring [first] graders?”

O’Brien said she posted the statement that her students were “future criminals” because of the behavior of some – but not all – of the students, not because of their race or ethnicity. News of her posts spread quickly throughout the school district, however. Two angry parents went to her principal’s office to express their outrage, and one parent threatened to remove her child from school. The school also received at least a dozen irate phone calls. Twenty to 25 people gathered outside the school to protest because of the statements, and news reporters and camera crews from major news organizations descended upon the school. At the next Home-School Council meeting, the majority of the meeting was devoted to O’Brien’s posts and parents expressed their outrage over the posts. When O’Brien was made aware of the outrage against her posts, she was surprised that her posts had led to such a reaction.

First Amendment Standards

Public school employees do not shed their rights to free speech as private citizens at the schoolhouse door, especially when that speech is made on the employee’s own time. When considering whether a public school employee can be disciplined for speech, including online speech made on the employee’s own time, courts ask the following questions:

1. Was the employee speaking in his or her official role? If yes, the teacher probably does not have First Amendment protections and may be disciplined for his or her speech. If no, ask Question 2.
2. Was the employee speaking on a matter of public concern? If no, and the teacher was speaking on a purely private concern, the teacher probably does not have First Amendment protections and may be disciplined for his or her speech. If yes, ask Question 3.
3. Is the teacher’s right to express his or her views outweighed by the school district’s need to operate its schools efficiently? If yes, discipline does not violate the First Amendment. If no, then the teacher cannot be disciplined for his or her speech.

Application of Standards in O’Brien

Question 1: In O’Brien, the teacher was speaking on her personal Facebook page outside of school hours, and so there was no question that she was speaking as a private citizen rather than in her official role.

Question 2: O’Brien argued that she was speaking about student behavior in the classroom, which she said was clearly a matter of public concern. The Administrative Law Judge (ALJ) at her tenured teacher dismissal hearing did not agree, however, finding that her posts were “a personal expression” of dissatisfaction with her job – a purely personal concern. This conclusion was upheld by the appellate court.

Question 3: The ALJ further found that even if O’Brien was speaking on a matter of public concern, the school district’s need to operate its schools efficiently outweighed her interest in expressing her views because her relationship with the Paterson school community had been “irreparably damaged” (Question 3). This is where the “heckler’s veto” idea comes in. Specifically, the ALJ found:

[A] description of first-grade children as criminals with their teacher as their warden is intemperate and vituperative. It becomes impossible for parents to cooperate with or have faith in a teacher who insults their children and trivializes legitimate educational concerns on the internet.

The ALJ noted that generally public reactions to an individual’s statement cannot limit their rights to free speech, but that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.” The appellate court agreed with the ALJ’s findings.

Lessons Learned From O’Brien

The following are some lessons that can be learned from the O’Brien case:

• In some circumstances, a teacher may be disciplined and even dismissed for his or her online speech because of the strong responses others have to that speech.
• Such discipline is not warranted simply because a teacher speaks out on a controversial subject online, however. Rather, such discipline was warranted in O’Brien because the teacher was critical of her students. Had she expressed her concerns in a way that was not a criticism against her students as individuals, she may have been protected by the First Amendment.
• School officials have significant leeway in disciplining teachers for what reasonably can be described as gripes about the workplace. But the line between a personal gripe and a matter of public concern can be difficult to identify at times, however, and can often depend on how the employee expresses the concern. “I can’t believe how poorly behaved my first graders are” might be a personal gripe, whereas “I can’t believe how little my school does to help manage my classroom behavior” might be a public concern.
• Because of the often blurry lines in this area of law, school officials should take care to consider the nuances of an employee’s speech before imposing discipline so as to not violate the employee’s First Amendment rights.

The post New Jersey District Dismisses Teacher Who Called Students “Future Criminals” on Facebook appeared first on Education Law Insights.