Thursday, July 16, 2015
Yesterday, the Senate rejected an amendment to the Elementary and Secondary Education Act that would have specifically prohibited discrimination against lesbian, gay, bisexual, transgender, and queer (LGBTQ) students in school. Surely, the Supreme Court's recent decision upholding the right of same sex couples to marry was lurking in the minds of many. A vote against this amendment could be seen as ideologically in line with the opposition to same sex marriage. That, however, was not the major rationale for voting against the measure. Some senators argued that the amendment was unnecessary because Title IX of the Education Amendments of 1972 already protected LGBTQ youth.
This rationale should ring hollow to those who have followed Title IX precedent and politics over the past two decades. Conservatives are correct that Title IX affords protection. What they fail to mention, however, is that this has not always been the case and the protection is not necessarily all encompassing. The theory under which Title IX protections LGBTQ youth is that some discrimination against students arises because they are not conforming to stereotypes about how a boy or a girl should act, dress, etc. In other words, a young boy dressed or acted "effeminately" would not have been mistreated had he been a girl and dressed or acted the same way. Thus, the treatment is gender discrimination which Title IX prohibits.
The trouble with conservatives' rejection of the ESEA amendment to protect LGBTQ is threefold. First, that the Obama administration is the first to explicitly adopt the foregoing Title IX rationale. A subsequent administration could interpret Title IX differently or simply enforce it less vigorously. Second, conservatives have criticized the use of Title IX to protect LGBTQ youth. It is a bit disingenuous for a conservative to criticize progressive use of Title IX to protect LGBTQ youth and then turn around and argue ESEA need not be amended because the administration has already taken care of the LGBTQ issue through a purported misuse of power. Third, the foregoing Title IX theory is not all encompassing. Some courts have not adopted it. In addition, the theory only directly covers stereotyping. Some LGBTQ youth are discriminated solely based on who they are, not based on a failure to conform to a stereotype. Thus, there are some circumstances under which they may not be protected. An explicitly anti-discrimination measure to protect them would cure this problem.
The Senate's vote just eliminated that solution from the ESEA.
Friday, May 1, 2015
The Office for Civil Rights has released its 2013-2014 report to Congress and the President. From my perspective, past reports have been dense and un-illuminating. This current one strikes a very different approach. First, it is very well written. Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative. Fourth, it is analytical. Fifth, it is visually appealing. Sixth, it implicitly suggests courses of action or concern. Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.
May 1, 2015 in Bullying and Harassment, Discipline, Discrimination, English Language Learners, Equity in education, Federal policy, Gender, Racial Integration and Diversity, Special Education | Permalink | Comments (0)
Monday, October 13, 2014
Last week, the Gay-Straight Alliance Network and Crossroads Collaborative released a set of reports on bullying and harrassment based on sexual orientation in schools. The reports also addressed whether LGBTQ are subject to disparate discipline. Unfortunately, bullying based on sexual orienation is not new, but what was surprising was that LGBTQ youth are subject to disparate discipline and often blamed for their victimization. A set of policy recommendations by the Advancement Project accompanies the reports.
Tuesday, September 30, 2014
A new student comment by Talon Hurst, Give Me Your Password: The Intrusive Social Media Policies in Our Schools, 22 CommLaw Conspectus 196 (2014), discusses social media policies "that allow school officials to request or demand students to consent to their social media accounts being accessed or monitored[.]" The author argues that these policies violate students' First and Fourth Amendment rights, and calls for judicial review of their constitutionality. Hurst emphasizes that these kinds of social media policies are not only a concern in primary and secondary schools, but also growing in prevalence at a number of colleges and universities, especially in regards to student athletes. Who knew colleges and universities were so interested in their students?
Hurst points to school officials at the University of North Carolina, who "force their student-athletes to consent to the monitoring of their social network accounts by signing a social media policy[,]" which states that "'[e]ach team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members' social networking sites and posting.'"
Thursday, June 12, 2014
A New York trial court held in Elissa v. City of New York, 2014 WL 2216883, that a public school was not liable for a student's suicide (prompted by bullying) because the suicide did not happen at the school, but the student could assert a claim for emotional injuries sustained prior to the suicide that occurred at school. The dismissal for the suicide is not surprising, but permitting the emotional harm claim was somewhat. As posted here before, courts often easily rationalize away school responsibility on theories of "no duty" under both state and federal law, and back it up with precedent. This case is remarkable for the amount of precedent to which it cited in favor of holding the district liable. In pertinent part, the court wrote:
the duty to adequately supervise the students is co-extensive with the school's physical custody and control over them ( See Pratt v. Robinson, 39 N.Y.2d 554, 560 ; see also Maldonado v. Tuckahoe Union Free Sch. Dist., 817 N.Y.S.2d 376 [2d Dept.2006]; Chalen, 814 N.Y.S.2d 254; Morning v. Riverhead Cent. Sch. Dist., 811 N.Y.S.2d 747 [2d Dept.2006]; Tarnaras v. Farmingdale Sch. Dist., 694 N.Y.S.2d 413 [2d Dept.1999] ). . . . However, the plaintiff's claim of emotional injuries was not dismissed, since that harm was inflicted when the student was within the school's physical custody.
With respect to plaintiff's causes of action seeking to recover damages for the emotional injuries sustained by the decedent prior to his death, defendant's have failed to establish their prima facie entitlement to dismissal of such claims.
These emotional injuries were allegedly sustained by the decedent during school hours and on school premises and, as such, plaintiff may seek recovery of these damages based on a theory of negligent supervision. Therefore, plaintiff is not required to plead the existence of a separate and distinct special duty to recover damages for the emotional injuries sustained by decedent prior to his death ( See, e.g., Miccio, supra at 543, 735 N.Y.S.2d 202).
Moreover, a claim that a school failed to adequately address the ongoing harassment of the decedent and that the decedent sustained emotional injuries as a result is a cognizable cause of action ( See Cavello v. Sherburne–Earlville Cent. Sch. Dist., 494 N.Y.S.2d 466 [3d Dept.1985]; see also Barmore v. Aidala, 419 F.Supp.2d 193, 206 [N.D.NY 2005] ).
As such, defendant's claim that a school district's response to harassment and bullying is a discretionary governmental function for which no liability may attach is without merit ( See Barmore, supra, at 206). Indeed, the adequacy of a school's supervision of its students generally presents a question of fact ( See Braunstein v. Half Hollow Hills Cent. Sch. Dist., 962 N.Y.S.2d 340 [2d Dept.2013]; Palmer v. City of New York, 970 N.Y.S.2d 583 [2d Dept.2013]; Oakes v. Massena Cent. Sch. Dist., 797 N.Y.S.2d 640 [3d Dept.2005] ).
Plaintiff's deposition testimony demonstrates that she and the decedent made multiple complaints to multiple school officials regarding the harassment of the decedent, while testimony by the school officials shows that they may not have been aware of the severity of the bullying. In addition, the school addressed harassment by visiting classrooms to educate students regarding the use of the word “gay.” They also hung posters and distributed brochures to educate students on harassment and the steps to report it. However, not all of the students alleged to have harassed decedent were disciplined.
Clearly this demonstrates the existence of triable issues of fact regarding the school's knowledge of the harassment of the decedent and the adequacy of their response thereto ( See Wilson, supra, at 1000–01; Cavello, supra, at 255, 494 N.Y.S.2d 466).
Thursday, May 22, 2014
A week and a half ago, it was a forgone conclusion that Carson, California, would pass the nation's first anti-bullying ordinance. In a preliminary vote and hearing on May 6, the city council had voiced strong support. The ordinance would have made it a misdemeanor for anyone, from kindergartners to adults aged 25, to make another person feel “terrorized, frightened, intimidated, threatened, harassed, or molested.” First and second infractions would be sanctioned with fines, and a third offense would be sanctioned with a criminal misdemeanor charge. The ordinance had received strong support from anti-cyberbullying advocates. The purported rational behind the ordinance was that the fines, in particular, would incentivize parents to police their children's use of social media at home.
Yesterday, the city council made an about-face, rejecting the ordinance. The shift appears to be a result of the ACLU, Lambda Legal Center, and anti-bullying advocates pointing out that the ordinance was too vague and overly broad. As such, it stood to sweep in some behavior that would be protected as free speech and would not amount to bullying. The city indicates it will explore other alternatives to combating bullying, such as preventative programs.
Monday, April 7, 2014
Elizabeth M. Jaffe's roundup of the caselaw and literature on cyberbullying, From the School Yard to Cyberspace: A Review of Bullying Liability, is now available on westlaw at 40 Rutgers Computer & Tech. L.J. 17 (2014). Her introduction summarizes the article as follows:
There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough.
Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed.
Friday, January 31, 2014
Maine Supreme Court Issues Monumental Decision in Favor of Transgendered Student's Right to Use Bathroom of Choice
A student in Maine has secured a huge victory for transgendered students. Susan Doe, a transgendered student, who is biologically male, but identifies as female, had been denied access to the girl's bathroom at her middle school. The Maine Supreme Judicial Court has held that she has a right to use the girl's restroom. The decision is based on Maine's Human Rights Act, which provides:
It is unlawful public accommodations discrimination, in violation of this Act . . . [f]or any public accommodation or any person who is the . . . superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of . . . sexual orientation . . . any of the accommodations . . . [or] facilities . . . of public accommodation . . . .
The court, however, was careful to write a decision that was tailored to Susan's specific facts, which included a clearly documented gender identity and a past acceptance by the school of that identity. The Court wrote:
we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl.
Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.
While carefully crafted, this language seems more directed toward warding off open access to bathrooms for anyone who wants it, rather than limiting the rights of other transgendered students facing problems like Susan's.
Many other districts across the nation have similarly been struggling with how to accomodate transgendered students. This decision should provide a helpful example.
Thursday, January 30, 2014
Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography. Marruci states that he started working in the industry to help his mother pay the bills. Apparently, the family has fallen on hard times and his work does not violate any law. Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened. If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment. See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did. Strike one against the school.
What the school did do was suspend Marucci for ten days. His mother says he was "expelled due to his explicit lifestyle career.” The school indicates that it suspended him for "possible threats" he had made. The devil is in the detail, but "possible threats" sounds vague. If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him. At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez). This does not appear to be the school's claim. Sounds like strike two against the school.
If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech. Strike three (and four, I suppose).
Tuesday, November 19, 2013
Case Alleging School Interfered with Protests of Mistreatment of Lesbian, Gay, Bisexual and Transgendered Students Moves Forward
Amber Hatcher, a student at Desoto County High School, filed a lawsuit against the Desoto County School Board, the Principal at her high school, and other school officials alleged that they "have engaged and are engaging in conduct which violates her First Amendment rights. In April, 2012 [Hatcher] sought to organize and participate in the National Day of Silence at her high school in an effort to bring attention to the harms associated with bullying and harassment directed at lesbian, gay, bisexual and transgender students." Hatcher asserts that the school interfered with her ability to bring attention to the issues and that it plans to do so again this year.
In Hatcher ex rel Hatcher v. DeSoto County School Dist. Bd. of Educ,, 939 F.Supp.2d 1232 (M.D. Fla. 2013), the district court found that "[a]t least some of these proposed activities were well within the First Amendment and required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence." Thus, it denied the defendant's motion to dismiss and claims of qualified immunity.
Monday, November 18, 2013
Last week, La Feria School District in Texas told Jeydon Loredo that his picture would not appear in the school's yearbook. Jeydon grew up female but identifies as male. He posed for his high school senior picture in a tuxedo. The school's rationale for excluding him was its dress code. Jeydon's mother said that officals told her that her son's picture in a tuxedo "goes against the community standards.” They further indicated that “they were a conservative school and that (outfit) wouldn’t follow the school policy as far as their dress code.” If he wanted to be included in the yearbook, he would need to wear feminine clothing.
The Southern Poverty Law Center (SPLC) came to Jeydon's defense and threatened to sue the district for violating his First Amendment, Equal Protection, and Title IX rights. After a meeting with the SPLC, the district changed its position and will include Jeydon's picture in a tuxedo in the yearbook. One wonders whether the district knew it was violating the law to begin with and thought it could get away with it or if it only came to realize the err in its ways after speaking with SPLC. Either way, this story shows a lot of education around these issues is necessary.
Tuesday, November 12, 2013
A recent survey of 282 colleges and 44 college administrators found that 67% of students experienced harassment on campus and 61% witnessed another student being harassed. Those students reported that the harassment had significant effects on their education. Forty-six percent said harassment caused disappointment with college experience. Twenty percent said harassment interfered with their concentration in class. And 23% said harassment caused them to miss class and other campus activities. Only 17% of students, however, actually reported the harassment to a college officials. Fifty-five percent of college administrators cite the cause of the low reporting rates as begin poor reporting and enforcement mechanism.
The survery is not nearly as nuanced as the ones conducted by the American Association of University Women (AAUW), but its results are largely consistent with the AAUW's last report in 2005, Drawing the Line: Sexual Harassment on Campus. As some may recall, reports of this sort were important in prompting the Supreme Court to extend Title IX liability to schools for on-campus harassment. Those cases, however, addressed elementary and secondary schools. Given the different and decentralized context of college campuses, the problem of higher education harassment does not easily mess with the rules developed for elementary and secondar schools. These persistently high numbers in college suggest a different approach is necessary (not that the problem has been solved in elementary and secondary schools).
Thursday, October 10, 2013
Scholars like Gregory Parks have done extensive work on hazing in higher education, see, e.g.. An unfortunate new field may be opening for them: high school. The Seattle Times reports that a local high school:
has temporarily expelled 11 sophomores, juniors and seniors. The students are banned while Seattle police and school officials continue investigating the Sept. 27 incident when students were discovered at the Washington Park Arboretum drinking alcohol. Some were dressed in diapers, being pelted with eggs and paddled with boards.
Some of the students, surprised when Howard and school security aides arrived, hurled derogatory names at the principal — including a racial epithet.
Apparently, this was all occurring during school hours. This also comes after an incident last June at another local school where "seven juniors were beaten, burned with cigarettes and cigars, and pelted with eggs during hazing. The hazing was an initiation rite for the 'Naked Vikings,' a group not officially sanctioned by the school, but allowed to cheer at football and basketball games."
Let us hope these are isolated incidents and that the Office for Civil Rights can articulate the legal rationale whereby at least some of the hazing falls within the purview of Title IX and Title VI, which would obligate schools to address it rather than look the other way, as some claim the schools have done in the past.
Thursday, September 26, 2013
In a story so shocking, it is hard to believe, the superintendent and athletic director of a suburb school district outside of Philadelphia were just removed/allowed to resigned from their positions after an IT employee leaked their electronic conversations containing repeated use of the n-word. Coatesville Area School District Superintendent Richard Como and Director of Athletics and Activities Jim Donato apparently had the following to say about their students and teachers:
'All should just have whatever first names they want...then last name is N*****!
'Leroy N*****, Preacher N*****, Night train n*****, clarence n*****, Latoya n*****, Thelma n***** and so on.'
'Great idea! Joe n***** bill n***** snake n***** got a nice ring to it.'
'Could have whole homerooms of n*****!'
'Hahahahaha! Will N***** report to the office, pardon the interruption but will n***** report to nurses office. N***** to lunch now!'
When the superintendent was talking about 23 teachers laid off, Donato asked: 'How many n****** out of 23? Not enough!” The superintendent replied: 'Don't know but think it's only 4-5. At most until last minute rush of firing by Goo of Phoenix and Kamara.' 'Good hangings there,' Donato responded.
October is National Anti-Bullying Month, and Florida International University (FIU) College of Law is hosting National Voices for Equality, Education and Enlightenment (NVEEE) for the “Not on My Watch” Anti-Bullying Summit on Saturday, October 19. Panelists will include Jane Clementi, mother of Tyler Clementi, a gay teen who ended his life several days after a cyber-bullying incident by jumping off the George Washington Bridge; Cassidy McMillan, Producer and Director of the Award-Winning Documentary “Bullies and Friends;” Trish Behnke and Tracy Fentress, the mothers of 14-yr-old best friends Haylee Fentress and Paige Moravetz, whose double suicide pact due to bullying and harassment shocked the nation; April L. Vance, President and CEO of Advance Project; and Jowharah Sanders, Founder and Executive Director of NVEEE. Middle and high-school students, parents, teachers, administrators, counselors, support staff, faith-based communities, members of the lesbian, gay, bi-sexual and transgendered (LGBT) community, elected officials and policy makers have also been invited. The summit is free and open to the public. It will be held at the Modesto A. Maidique Campus, 11200 S.W 8th Street Miami, FL 33199 from 8:30a.m - 2:30p.m. Registration is required. To register, visit http://tinyurl.com/ksays7q. Click here to see a slideshow about the summit.
Monday, September 23, 2013
Just last week, I posted on a Connecticut court rejecting a student's cause of action under the state's anti-bullying statute. In contrast, the Old Bridge School Board in New Jersey settled an anti-bullying case for 60,000 last week. New Jersey's anti-bullying law is considered the toughest in the nation. It was a response to the public outcry over the suicide of Tyler Clementi, a freshman at Rutgers University, in 2010. The explicit mandates and clarity of the New Jersey law seems to have made all the difference.
This clarity has a huge upside statewide. Knowing the risks of litigation, districts will respond quicker and more effectively to bullying. Those who do not will suffer the consequences. The trouble is discerning what amounts to "bullying" around the margins. All "bullying" is serious and I, in no way, mean to minimize it. Schools should be held accountable for the failure to stop it. But some schools overreact and punish behavior that is not bullying. From many schools' perspective, it is better to be safe (as in not get sued) than sorry. This is the same approach we saw schools take with zero tolerance policies on weapons and drugs, which has lead to the expulsion of children with finger clips, butter knives in their lunch boxes, and tylenol in their purse. New Jersey has apparently already seen some potential overreactions/over-broad applications with bullying. None of this is to find flaw in the law, but to point out the potential serious downside of applying laws without a good dose of common sense and judgment. Unfortunately, those dreaded professional development workshops might be of some use here.
Friday, September 20, 2013
In 2002, the Connecticut Legislature enacted an anti-bullying statute that directed schools to come up with policies and procedures to address and prevent bullying. In the wake of high profile bullying incidents that led to the victims' suicide or other serious harm, Connecticut reenacted and strengthened the statute in 2011. The current statute broadly defines bullying and harassment and provides that "Each local and regional board of education shall develop and implement a safe school climate plan to address the existence of bullying in its schools." Conn. Gen. Statute 10-222d. It further specifies 17 different responsibilities, structures, and procedures that must be included in the plan and complied with. Id. The statute does not include an explicit cause of action.
Some prior courts had addressed the existence of cause of action under the old version of the statute, but Mazzo v. Town of Fairfield Bd. of Educ., 2013 WL 4872203 (Sup. Ct. of Conn. 2013), appears to be a case of first impression regarding the newly enacted version of the statute. Plaintiff's primary argument appeared to be that Conn. Gen. Statute 10-222l evidences intent to create of cause of action because, while that section speaks to immunity, it conditions that immunity on good faith compliance with the statute. In other words, plaintiff argues that a basic failure to attempt to comply with the Act is not granted immunity and, thus, is actionable under the act.