legal update: the year in review recent court and administrative decisions and the dignity for all...

LEGAL UPDATE: THE YEAR IN REVIEW

Recent Court and Administrative Decisionsand

The Dignity for All Students Actfor the

Annual Spring Speaker Series 2013of the Sage Colleges

March 21, 2013

JAY WORONA, Esq.General Counsel

The New York State School Boards AssociationLatham, New York

Hiring, Discipline, Dismissal and Transfer of Employees

Termination of Probationary TeachersAppeal of Stephenson The Commissioner of Education, in following precedent from the U.S. Supreme Court in Garcetti v. Ceballos, rejected a terminated probationary teacher’s free speech claim by ruling that a teacher has no first amendment protection in comments regarding the grades of students in her building and the academic integrity of the school during class time based upon the fact that such speech was not of public concern but rather was made in the course of her duties as a teacher.

Hiring, Discipline, Dismissal and Transfer of Employees

Civil Service Employees-TerminationShenendehowa CSD Board of Education v. CSEA New York State’s highest upheld an arbitrator’s decision overturning a school district’s termination of a school bus driver for testing positive for marijuana use based upon the determination that the district’s actions were “inconsistent with the disciplinary procedures and penalties under the collective bargaining agreement” which was interpreted to require that the employee receive progressive discipline.

Hiring, Discipline, Dismissal Disciplinary Hearings

Disqualification of School Board Members in School Employee Disciplinary HearingsBaker v. Poughkeepsie City School District

New York’s highest court rules that although school board members are not automatically disqualified from taking part in voting to terminate employees even though they may have testified at that employee’s disciplinary hearing, they must disqualify themselves “where their testimony supports or negates the establishment of the charges preferred.”

School District Liability

Applicability of Assumption of the Risk Defense

Stoughtenger v. Hannibal Central School District

A state appeals court ruled that a school district’s affirmative defense to a negligence lawsuit that students engaging in sporting activities “assume the risk” of their own injuries is ONLY applicable for students engaging in such activities in a voluntary capacity and not to students who are injured during their attendance in compulsory physical education courses.

Student DisciplineDistricts Can’t Discipline Students in the Absence of Complaining Witnesses.Appeal of a C.M. The Commissioner of Education ruled that in the absence of securing witnesses to an event in which certain students face disciplinary action, school principals who investigate the incidents and interview witnesses cannot themselves serve as complaining witnesses. The procedural requirements of the Education Law entitle students to face their complaining witnesses. In this case, fearing retaliation, student witnesses to assaults committed during “Kick a Jew Day” refused to come forward and testify.

Taylor Law Issues

Application of No Layoff Provisions in Collective Bargaining Agreement Matter of the Arbitration between Johnson City Professional Firefighters Local 921 and Village of Johnson City

New York’s highest court reinforced the long-held rule that when a collective bargaining agreement contains a “no layoff” clause, the employer may nonetheless layoff employees and will not be required to arbitrate the meaning of that provision when the provision is so ambiguous that it violates public policy. Otherwise, said the Court, every budget decision a municipality makes will be routinely challenged by employees and its authority to abolish positions or terminate workers will be subject to an arbitrator’s whim.

School Funding

Hussein v. State of New York New York State’s highest court ruled that a group of plaintiffs from 11 school districts outside New York City may continue with their lawsuit alleging their children are denied a sound basic education because their school districts are substantially underfunded.

Approximately 15-20% of the U.S. student population is bullied. 88% of secondary school students observed bullying.77% stated they had been victims.

Bullying in New York State

2010 Report Card on the Ethics of American Youth, Josephson Institutestudy found that 47.1% of high school students reporting having been bullied, teased or taunted in the previous year in a way that seriously upset them .


Gay, Lesbian and Straight Education Network (GLSEN) survey of NY students:

40% reported that bullying, name-calling, and harassment is a serious problem in school.


57% reported students were bullied/harassed at least sometimes because of the way they expressed their gender.

52% reported students were bullied/harassed because they were or were perceived to be lesbian, gay, or bisexual….

While even though only 5% identified as being so.

In Massachusetts, six teenagers charged in the suicide death of bullied 15-year old Irish freshman Phoebe Prince

Bullying in the News

Student Bullying Through Technology in the News

Tyler Clementi

Student Technology Use in the News

Teenager struggled with bullying before taking his life By Sandra Tan, NEWS STAFF REPORTER , September 27, 2011, 4:39 PM

Jamey Rodemeyer needed help. At 14, he was grappling with adolescent demons that could torment grown men. And when he was online, he wrote about it. "I always say how bullied I am, but no one listens," he wrote Sept. 9. "What do I have to do so people will listen to me?“ Just over one week later, Jamey was found dead outside his home of an apparent suicide.

The Obama Administration & Bullying

Largest focus in history by Obama administration.

US ED multiple front actions; guidance, conferences, enforcement.

Multi-agency approach.

Department of Education’s Office for Civil Rights (OCR) issues “Dear Colleague Letter” on bullying in October 2010

!

Problems with OCR’s DCL letter…

Shifts “actual knowledge standard” under U.S. Supreme Court precedent Davis v. Monroe County to “knows or reasonably should have known.”

Redefines harassment from “severe, pervasive and objectively offensive” to “severe, pervasive OR persistent.”

Redefines the effect of harassment from barring “access to an educational opportunity” to “interfer[ing] with or limiting a student’s ability to participate in or benefit from [school services].”

And, more problems with OCR’s DCL… Redefines Title IX requirements from

responding to peer harassment in a reasonable manner to eliminating harassment and a hostile environment.

Implies school districts that respond to harassment by changing the victim’s schedule or transportation means are punishing the student under Title IX. (See, Barnstable case).

Requiring school districts to “publicly label” incidents as harassment could violate FERPA if labeling results in identification of students.

The Push for the Dignity for All Students Act

The Dignity for All Students Act arises out of legislative concern, born out of media coverage of egregious cases, to prevent bullying in the schools.

While it does not use that word, that is its focus.

The Dignity for All Students Act

• Adopted by the Legislature on June 22, 2010 as an enumerated anti-bullying bill.

• Governor Patterson signed it into law September 8, 2010

• Effective date July 1, 2012

The Original Dignity for All Students Act

Chapter 482 of the Laws of 2010 added a new article 2 to the Education Law that prohibits discrimination against, and harassment of, students based on actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or other students on school property or at a school function.

Effective July 1, 2012

The Dignity for All Students ActModel Language from SED –See Section 13 and

8 NYCRR 100.2 (l)

The Dignity for All Students Act requires school districts to: oRevise their codes of conduct and adopt policies intended to create a school environment free from harassment and discrimination in age appropriate versions. oAdopt guidelines to be used in school training programs to raise awareness and sensitivity of school employees to these issues and to enable them to respond appropriately. oDesignate at least one staff member in each school to be trained in non-discriminatory instructional and counseling methods and handling human relations to be the Dignity Coordinator.

The Amended Dignity for All Students Act

Chapter 482 of the Laws of 2010 (DASA) did not contain the word “cyber bullying” and based, in part upon a survey conducted by Senator Klein, just before the legislature ended its session, it amended the Dignity Act to prohibit cyber bullying as a form of bullying and harassment.

Effective July 1, 2013(More on this in a few minutes)


Provides tools and resources to afford all students – including targets/victims - an educational environment in which they can thrive.

Education and prevention of harassment and

discrimination before it begins.


• Prohibits harassment by school employees and students on school property or at a school function.

• Prohibits discrimination by school employees and students based on, BUT NOT LIMITED TO, actual or perceived:

– Race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.


• Schools already protect students from discrimination on the basis of race, color, national origin, gender and religion:• Title VI, Title IX, Title II and Section 504

• The Dignity act expands to harassment that is not related to a Federally protected characteristic and some categories overlooked/not protected by Federal law.

Other Dignity Act Implementation Issues

o Dignity for ALL Studentso Other vulnerable populations:

refugees, homeless students; students in low socio-economic status

o Barriers to communicating and involving parents of “marginalized’ students

o Accommodations: i.e., bathrooms and locker rooms

o Monitoring social media

Material Incident (100.2(kk))Starting with the 2012-2013 school yearA single incident or a series of related incidents

where a student is subjected to discrimination and/or harassment by a student and/or employee on school property or at a school function that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such severe or pervasive nature that:Has or would have the effect of unreasonably and

substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional and/or physical well being; or

Reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety.

Statewide Reporting (100.2(kk))Annual reporting on or before BEDS reporting deadline,

or any other date as determined by the CommissionerIn a manner prescribed by the CommissionerMaterial incident that is the result of the investigation of a written or oral complaintReport shall include:

The type of bias involved – if multiple types, report all types

Whether incident resulted from student or employee behavior

Whether incident involved physical contact or verbal threats

Location of incident – on school property or at a school function

Provisions of the Amended Dignity ActInclusion of bullying and cyberbullying as

prohibited activitiesDefinition of harassment/bullying – equivalent

for purposes of the Dignity ActDuty of staff to report incidents to building

principal or superintendent or designee within specified timeframes orally and in writing

School professionals applying on or after July 1, 2013 for a certificate or license shall have completed training on social patterns of harassment, bullying and discrimination.

Definition of Harassment/Bullying Under the Amended Dignity Act:Harassment and bullying shall mean the creation of a

hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that (a) has or would have the effect of unreasonably and

substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b)reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety;

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or

(d) occurs off school property and creates or would foreseeable create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.

definition(cont.)Acts of harassment and bullying shall include, but

not be limited to those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice; disability, sexual orientation, gender or sex.

For the purposes of this definition the terms “threats, intimidation or abuse” shall include verbal and non-verbal actions.

“Cyberbullying” shall mean harassment or bullying as defined above where such harassment or bullying occurs through any form of electronic communication.

Reporting requirementPolicies and procedures intended to create a school

environment that is free from harassment, bullying or discrimination which:a. identifies the principal, superintendent or designee

as the school employee charged with receiving reports of harassment, bullying and discrimination

b. enable students and parents to make an oral or written report to school staff

c. require school employees who witness or receive a report of harassment, bullying or discrimination, to promptly orally notify the principal, superintendent or designee not later than one school day after and file a written report not later than two school days after making the oral report

Reporting/Investigation under the Amended Dignity ActPrincipal, superintendent or designee to lead or

supervise thorough investigation of all reports and ensure prompt completion of investigation

When investigation reveals verified harassment, bullying or discrimination, take prompt actions reasonably calculated to end harassment, eliminate any hostile environment, create a more positive school culture, prevent recurrence of behavior and ensure the safety of the student(s) against whom harassment was directed

Require principal to make regular report on data and trends related to harassment to the superintendent

Discipline under the Amended Dignity ActDevelopment of measured, balanced and age-

appropriate responses to instances of harassment, bullying or discrimination

Remedies and procedures following a progressive model that makes appropriate use of intervention, discipline and education that vary in method according to:

nature of the behavior, developmental age of the student student’s history of problem behaviors consistent with district code of conduct

CELL PHONE and INTERNET USE/DIGITAL NATIVES

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Texting Calling SocialNetwk

IM'ing E-mail-ing

Teens' Daily Activities

Reports indicate more than 80% of kids in the United States have a cell phone and use the internet.

Cyberspace: A New Frontier

– Access to the web through• Cell Phones (silent calls; abusive/threatening voice

and text msgs; wars)• Computers (anonymous emails/msgs; stealing

passwords)• Gaming Consoles

– Conduct and activity on• Blogs (polls, “Who’s Hot/Not, etc.)• Microblogs (Twitter, Trillian, etc.)• Instant Messaging- (“Warn wars”; hard to trace)• Social Networks (Facebook, Myspace, Formspring)• Websites• Chat rooms• Video Games (chat, text-taunting, threats, bullying)

To Address Bullying, Do Schools Have Authority to Control Student

Off-Campus Internet Activity?

A Constitutional Analysis

Landmark Rulings of the United States Supreme Court -Free SpeechTinker v. Des Moines Independent Community SD

The U.S. Supreme Court held that students are entitled to free speech protections but that such speech does not extend to speech which would materially and substantially disrupt the educational process of the school environment or that would impinge on the rights of others.

Exceptions to Tinker

(1) Lewd and Indecent SpeechIn Bethel School District No. 403 v. Fraser,

the United States Supreme Court upheld the suspension of a high school senior who gave a nominating speech at a school assembly laced with sexual innuendo even though the speech could not be shown to materially disrupt the school environment. The Court distinguished this case from Tinker holding that the school district acted within its authority in response to the use of vulgar or indecent speech in a school sponsored activity.


(2) School Sponsored Speech In Hazelwood School District v. Kuhlmeier, the United States Supreme Court ruled that even in the absence of showing substantial disruption, school officials did not violate the free speech rights of students by removing materials deemed objectionable from a school-sponsored newspaper for legitimate educational reasons.


(3) Speech which promotes illegal drug use In Morse v. Frederick the United States Supreme Court ruled that even in the absence of showing substantial disruption, the governmental interest in stopping student drug abuse allows schools to restrict student expression they reasonably regard as promoting illegal drug use.

Appeal of Ravick

The Commissioner of Education held that a school district had authority to suspend a student who e-mailed an offensive message from a home computer to other students’ home computers because the district reasonably interpreted the e-mail as a threat to student safety and it substantially disrupted school operations.

New York State Commissioner of Education Decision (an example of deference for school authorities)

Doninger v. Niehoff

A high school junior brought suit alleging that her First Amendment rights were violated when the district barred her from running for senior class secretary after she posted a derogatory blog on an independent website stating that the “douchebags in central office” had canceled a school event and urged students and parents to call complaints into the district to “piss off” the superintendent. Federal appeals court with jurisdiction over NYS ruled for the district given the disruptive impact of the speech.

Wisniewski v. Board of Educ. of Weedsport CSD

Federal appeals court with jurisdiction over all of New York State, held that a school district did not violate the first amendment free speech rights of a student for his being suspended after making a threat against his 8th grade English teacher from his home computer that was ultimately shared with the teacher by others and caused disruption at school.

Zeno v. Pine Plains CSD

On December 3, 2012, a federal appeals court with jurisdiction upheld a $1 million dollar award against a school district after determining that a jury reasonably found the district had not sufficiently addressed the racial harassment targeted against one of its high school students by other students in the school because the districts actions were not reasonably calculated to end the harassment.

Long v. Murray County Public School DistrictPending before a federal appeals court with jurisdiction over the State of Georgia, this case involves the proper standard for imposing school district liability for peer harassment under federal anti-discrimination statutes. In this case, a disabled student committed suicide based upon alleged instances of continued harassment. A lower federal court ruled in favor of the school district finding that despite the existence of “severe and pervasive” harassment, the school district was unaware of it and therefore not legally liable because its response to the reported incidents had not been deliberately indifferent.

Requa v. Kent School District No. 415A lower federal court upheld the suspension of an 18-year old student, who, with the help of 39 fellow students, surreptitiously videotaped his teacher on two occasions against school district policy and edited the video with graphics and music and posted the video on YouTube.com. The video commented on the teacher’s hygiene, showed students making faces behind her back, and making pelvic thrusts in her direction together with shots of her posterior and references to her “booty”

J.S. v. Blue Mountain School District

On June 13, 2011, a federal en banc appeals court vacated its prior decisions holding that the School District had violated the student’s First Amendment free speech rights by suspending her for creating a derogatory parody of the school principal because: (1) the school district could not have forecasted substantial disruption of, or material interference with, school when the student created the profile; (2) the school district could not punish the student for use of profane language outside the school, during non-school hours; (3) the student's lewd, vulgar, and offensive speech that had been made off-campus had not been turned into on-campus speech when another student brought a printed copy of that speech to school at the express request of school principal

Layshock v. Hermitage School DistrictOn June 13, 2011, in an en banc decision the United States Court of Appeals for the 3rd Circuit, affirmed its prior decision holding that the School District had violated the student’s First Amendment free speech rights by suspending her because: (1) the student's “entering” the district's website to “take” the district's photo of the principal was not sufficient to forge a nexus between the school and the profile and (2) the school district did not have the authority to punish the student for engaging in expressive conduct outside of school that the district considered to be lewd and offensive.

Student Constitutional Rights

Free SpeechCox v. Warwick Valley CSD A federal appeals court with jurisdiction over all school districts in New York State ruled that a school principal acted appropriately by temporarily sequestering a student after he submitted an essay which detailed carrying out violent activities and his own suicide, in order to determine if the student was a threat to himself or others.

Student Constitutional Rights

Free SpeechCuff v. Valley Central School District A federal appeals court with jurisdiction over all school districts in New York State dismissed a first amendment lawsuit brought by the parents of a fifth grader who had been suspended for six days for writing his wish to “blow up the school with teachers in it” within the context of an in-class drawing assignment. In so ruling, the Court based its decision upon the latitude school officials have been given by our courts to prevent disruption in schools, particularly in our post Columbine-9-11 world.

Issues to Consider when Conducting InvestigationsStored Communications ActFERPA implicationsRelationship with law enforcementCommunication with parents (of both the

target and alleged perpetrators)Documentation of the investigation

Stored Communications Act (SCA) 18 USC § 2701 - UNLAWFUL ACCESS TO

STORED COMMUNICATIONS(1) intentionally accesses without authorization

electronic communication service ; or(2) intentionally exceeds an authorization to

access

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage shall be punished

Family Educational Rights and Privacy Act (FERPA)Sharing information from student’s

educational record is generally prohibited unless it falls under one of the exceptions provided by the law.

Comes into play when discussing information with a parent about a student who isn’t their child

Relevant to sharing information with law enforcement

The Future of Student Free Speech Cases involving the internet

With a split in the circuit courts school districts wishing to ensure safety to their students await a final word from the United States Supreme Court.

Other Legal IssuesAccommodating unique needs of transgender

students while mindful of the rights of other students. For example:Locker roomsRestroomsPhysical education classes/extracurricular sportsPromPronounsNYSSBA doesn’t recommend a general policy, but

rather indicating in policy that an approach designed to meet the needs of the individual student will be formulated to address these issues.

What does implementation of the Dignity Act look like in practice?A change in culture – district-wide

conversationPreparing the school community – rolling out

your programCivility and character education

The Newtown Tragedy

Our Shared Reality: Recent School Shootings

School District Safety Plans

• Most States, including New York require school districts and charter schools to adopt a crisis management plan to address potential violent crisis situations

• Most Plans must be developed cooperatively with administrators, teachers, employees, students, parents, community members, law enforcement, medical responders, emergency management, and others.

Federal Safety Plan Requirements• What are the Federal Requirements

for School Safety?

Federal Threat Assessment/Safe Schools Initiatives

• In May 2002, the U.S. Secret Service and U.S. Department of Education Issued Two Important Publications:

The Final Report of theSafe School Initiative

U.S. Secret Service and U.S. Department of Education

study of 41 school shooters involved in 37 school attacks between

1974-2000

Threat Assessment in Schools:

A Guide to Managing Threatening Situations and

to Creating Safe School Climates

10 Key Findings of theSafe School Initiative

• Incidents of targeted violence at school are rarely sudden, impulsive acts.

• Prior to most incidents, other people knew about the attacker’s idea and/or plan to attack.

• Most attackers did not threaten their targets directly prior to advancing the attack.

10 Key Findings of theSafe School Initiative (cont.)

• There is no accurate or useful “profile” of students who engage in targeted school violence.

• Most attackers engaged in some behavior, prior to the incident, that caused concern or indicated a need for help.

• Most attackers were known to have difficulty coping with significant losses or personal failures. Many had considered or attempted suicide.

10 Key Findings of theSafe School Initiative (cont.)

• Many attackers felt bullied, persecuted, or injured by others prior to the attack.

• Most attackers had access to and had used weapons prior to the attack.

• In many cases, other students were involved in some capacity.

• Despite prompt law enforcement responses, most shooting incidents were stopped by means other than law enforcement intervention.

Bystander Study

• Prior Knowledge of• Potential School-Based• Violence: Information• Students Learn May• Prevent a Targeted• Attack.

• U.S. Secret Service• and U.S. Department• of Education• May 2008

Bystander Study

• Of the shooting incidents in the Safe Schools Initiative, 93% of the perpetrators exhibited concerning behavior prior to the attack, suggesting attacks might have been avoided with proper observation techniques and more open sharing of information.

• In 81% of the shooting incidents at least one other person had some type of knowledge of the attacker’s plan, and in 59% of the incidents more than one person had such knowledge.

• 93% of those individuals who had prior knowledge were peers of the perpetrators – friends, schoolmates, or siblings

Bystander Study

• Schools should ensure a climate in which students feel comfortable sharing information they have regarding a potentially threatening situation with a responsible adult.

• Bystander decisions to share knowledge of planned school violence results from the student’s positive emotional connection to the school and to its staff. Bystanders who did not share information related to the planned attack reported no connection to the school or a negative perception of the school climate.

Information Sharing for Safety

• Information sharing is a vital component of safety• Federal and state statutes protecting records allow

disclosure under several exceptions• Personal observations can be disclosed (e.g.,

overheard threat)• Requires dialogue between community partners to

include plans for information sharing in your emergency planning

• Work Together as Partners

Federal Safety Plan Requirements

• In Light of the Newtown Tragedy, Must School Districts Revisit Their Safety Plans and Their Implementation?

Emerging Issues

• Armed Guards in Schools or Armed Teachers and Staff

• Altering the Structure of School Facilities Such as School Entrances in Light of Newtown

• Legal Implications about new school district policies which would hold students and parents responsible for reporting suspected future acts of violence—First Amendment implications

legal update: the year in review recent court and administrative decisions and the dignity for all...

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