Tuesday, February 10, 2015

Judge Will Appoint Independent Monitor in Class Action Settlement of IDEA Claims Against Louisiana Education Board

Yesterday, U.S. District Court Judge Jay Zainey (Eastern District of Louisiana) officially approved of a settlement of the disability class action suit in P.B., et al., v. John White (the Louisiana superintendent of education). The judge's ruling, which approves of the parties' December agreement, resolved a complaint brought by parents that charters in New Orleans' Recovery School District discriminated against disabled children, violating the Individuals with Disabilities Education Act (IDEA), Section 504, and Title II. Judge Zainey assured worried parents at yesterday's hearing that he would appoint an independent monitor to ensure that the Louisiana Board of Education met the needs of students with disabilities as outlined in the settlement. The original complaint alleged that the state and the Orleans Parish School Board failed to oversee the delivery of special education services of New Orleans' schools, and because of that lack of oversight, students with disabilities were asked not to leave school or discouraged from enrolling. The settlement requires the state and the school board to develop a plan to identify and evaluate children suspected of having a disability and to describe plans for offering services to students with disabilities.  The Notice of Settlement is here.

February 10, 2015 in Cases, Special Education | Permalink | Comments (0)

Friday, February 6, 2015

Indiana Supreme Court Finds that State Civil Rights Commission Lacked Authority to Act in Discrimination Claim Against Homeschooling Association

In a dispute the Indiana Supreme Court characterized as "an intra-group squabble over the type of meal to be served to a member family's child" at a dinner-dance social, the court found that the Indiana Civil Rights Commission lacked statutory authority to act because the complained-of behavior was not "an incident not related to education." The Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) is a group of families who  associated together “to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment.” The claimant, Elizabeth Bridgewater, charged that FACES discriminated against her daughter in 2008  by resisting the family's efforts at a FACES function to arrange a special meal that would not activate the child's allergies. Bridgewater filed a complaint with the Indiana Civil Rights Commission, alleging that FACES refused her daughter a reasonable accommodation and therefore discriminated against her due to her disability. While the complaint was pending, Bridgewater  ordered a special dinner for her daughter for the event by contacting the host facility directly. The daughter attended the dinner without incident, however, she was expelled from FACES four days later. Bridgewater then filed a second complaint with the Commission. An administrative law judge found for the Bridgewaters and awarded $5,000 in damages, a finding that the Commission later adopted. On appeal, the Indiana Supreme Court found that the state's civil rights statute conditions the Commission's authority "to incidents where a person has “engaged in an unlawful discriminatory practice" and that FACES' activities were social rather than educational in nature. The court also rejected the Bridgewaters' retaliatory discrimination claims, again finding that any unlawful discriminatory practice that the Commission addresses must be related to education (under this case's facts.) The case prompted a dissent by three members of the court, who wrote that the retaliation claim was not "derivative of and thus depend[ent] upon the disposition of the discrimination claim." There was an arguable connection to education in the case, the dissent noted, as FACES conducted classes and helped the students' participation in educational activities outside of the home. Further, the dissent pointed out, the court's decision conflicted with how discrimination is defined federally, which "includes retaliation as a separate act of discrimination regardless of the outcome on the merits of the underlying complaint." The case is Fishers Adolescent Catholic Enrichment Soc'y, Inc. v. Bridgewater ex rel. Bridgewater, No. 93S02-1310-EX-704, 2015 WL 70285, at *4 (Ind. Jan. 6, 2015).

February 6, 2015 in Cases, State law developments | Permalink | Comments (0)

Tuesday, February 3, 2015

North Carolina Supreme Court Will Hear Oral Arguments on the Constitutionality of the State's School Voucher Program

The North Carolina Supreme Court is scheduled to hear oral arguments on February 16 in Hart v. North Carolina, which may decide the fate of North Carolina's Opportunity Scholarship Program (OSP), the state’s school voucher program.  The OSP, which is currently on hold after a state superior court judge ruled last August that it was unconstitutional, would have provided up to $4,200 per year to qualifying students to attend a private school of their family's choice. The N.C. Association of Educators, the N.C. Justice Center, the N.C. School Boards Association, and local school boards challenged the program as an attempt to funnel public school funds to private schools without sufficient oversight and contested whether the vouchers would help low-income students as intended.

Last August, Superior Court Judge Robert Hobgood agreed with some of those concerns, finding that the N.C. legislature’s $10 million OSP allocation violated the state constitutional provision permitting taxation "for public purposes only." In a pointed ruling, Judge Hobgood concluded, “The General Assembly is seeking to push at-risk students from low-income families into nonpublic schools in order to avoid the cost of providing them a sound, basic education in public schools” as mandated by state law.  Judge Hobgood also criticized the legislature for omitting any substantive instructional, training, or credentialing requirements for private schools to receive OSP funds, saying, “[t]he General Assembly fails the children of North Carolina when they sent with public taxpayer money to private schools that have no legal obligation to teach them anything.” Yesterday, several civil rights organizations filed amici briefs in support of the lower court’s decision, including those of the National Education Associationthe N.C. NAACPthe Duke Children’s Law Clinic and group of education scholars, and the ACLU with the Americans United for the Separation of Church and State. Read more about the case at N.C. Policy Watch here.

February 3, 2015 in Cases, Charters and Vouchers | Permalink | Comments (0)

Tuesday, January 27, 2015

Federal Class Action Suit Challenging Use of Pepper Spray in Schools Begins in Alabama

Last week, the trial of a federal class action lawsuit against Birmingham police challenging officers' use of pepper spray on students in eight of the city's nine high schools. The suit alleges that Birmingham police, serving as school resource officers, used Freeze + P, a spray made up of Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC), that causes “strong respiratory effects" and "severe pain" to break up fights, to disburse bystanders, and to spray students who were verbally disrespectful but not physically violent. The plaintiffs are represented by the Southern Poverty Law Center. Commenting on the suit, a SPLC attorney told the Marshall Project, “We have not been able to locate a school district anywhere that uses chemical spray in the way that Birmingham does, meaning on a routine basis." Interestingly, the lead defendant, Police Chief A.C. Roper, might agree in principle, as he told the Birmingham News in 2009 that the school system has "over-relied on our officers, and our officers have responded ... The current system is dysfunctional, and that's putting it mildly." The complaint is available on the SPLC's website here.

January 27, 2015 in Cases, Discipline | Permalink | Comments (0)

Friday, January 23, 2015

N.C. Judge Questions State's Redefinition of Student Progress in Long-Running Equity Suit

In 1997, North Carolina Supreme Court recognized a state constitutional right to "the opportunity to obtain a sound basic education" in a long-running education equity lawsuit, Leandro v. State, 346 N.C. 336, 354 (1997).  The job of monitoring the state's compliance with Leandro fell to N.C. Superior Court Judge Howard Manning Jr. Yesterday, Judge Manning questioned whether the state was trying to lessen its responsibility to meet Leandro’s guidelines by redefining student achievement. In March 2014, the North Carolina Board of Education expanded its definition of student readiness to include students who still needed substantial remedial help in the classroom as ready to advance to the next grade. In an earlier order, Judge Manning questioned whether the added level was “academic double speak” that indicated improved student outcomes on paper that were not actually occurring. Yesterday, Deputy State Superintendent for Public Instruction Rebecca Garland explained that the changed definition is in line with higher proficiency requirements and more challenging courses. Nevertheless, Judge Manning concluded the hearing by observing,  “The system is not on track” and “is not producing any substantive gains whatsoever.” Read more at here and here.

January 23, 2015 in Cases, Equity in education, K-12 | Permalink | Comments (0)

Wednesday, December 17, 2014

Second Circuit Finds that District Court Erred in Not Giving Greater Deference to State Review Officer's Findings in IDEA Case

The Second Circuit Court of Appeals recently reversed a federal district court’s ruling granting private school reimbursement for an emotionally disabled student under the Individuals with Disabilities Education Act.  The Second Circuit held that the district court should have shown greater deference to a State Review Officer's (SRO) determination that parents seeking reimbursement for the unilateral placement of their emotionally disabled child in a private school had not shown that their placement was appropriate. In doing so, the Second Circuit deferred to the SRO’s determination that the student did not improve academically at private school. The circuit court remanded the case for the district court to affirm the decision of the State Review Officer. The takeaway from the opinion is the Second Circuit will defer to the final decision of the state authorities over conflicting IHO and SRO opinions, particularly when no objective evidence contradicts the SRO’s decision. 

The case is Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., No. 13-1594-CV, 2014 WL 6778755, (2d Cir. Dec. 3, 2014), and is also available here. More details of the case after the jump.

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December 17, 2014 in Cases, Special Education | Permalink | Comments (0)

Tuesday, November 11, 2014

New Lawsuit Alleges that Pennsylvania’s School Funding Arrangement Denies Students an Adequate Education

Yesterday, plaintiffs in Pennsylvania sued to have the state's funding formula declared unconstitutional, alleging that the General Assembly has failed its state constitutional obligation to provide a "thorough and efficient" system of public education. Read the complaint and watch interviews with the plaintiffs at Thorough and Efficient, a joint blog of the Education Law Center of Pennsylvania and the Public Interest Law Center of Philadelphia. Cribbed from the plaintiffs' press release:

    The Education Law Center of Pennsylvania and the Public Interest Law Center of Philadelphia sued Monday on behalf of six school districts, parents, and two statewide associations against legislative leaders, state education officials, and the Governor for failing to uphold the General Assembly’s constitutional obligation to provide a "thorough and efficient" system of public ducation. According to the complaint, the Commonwealth has known for nearly a decade that Pennsylvania’s schools are badly underfunded.

    Beginning in 2011, however, state officials abandoned [a working] funding formula, reduced funding to districts by more than $860 million, and passed legislation to prevent local communities from increasing local funding. The complaint alleges that these actions have had devastating consequences for students, school districts, and the future of the Commonwealth. Districts across the state are unable to provide students with the basic elements of a quality education, including sufficient numbers of qualified teachers and staff, appropriate class sizes, suitable facilities, and up-to-date text books and technology. ...

    Plaintiffs allege that this underfunding and consequent underperformance has created a system of public education that is neither “thorough” nor “efficient,” nor “serves the needs of the Commonwealth.” In a second cause of action, the complaint alleges that the current way in which the Commonwealth funds public education denies students equal educational opportunities by creating gross funding disparities between wealthy and poor school districts.

 

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November 11, 2014 in Cases, News, School Funding | Permalink | Comments (0)

Friday, November 7, 2014

N.M. Supreme Court Rules that Statements Elicited by School Official Cannot Be Used in Student's Delinquency Proceeding Absent Waiver of Rights

The New Mexico Supreme Court recently held that incriminating statements elicited by a school official could not be used against a student in a subsequent delinquency proceeding unless the child validly waived his or her right to remain silent. The N.M. court’s decision is notable because a deputy sheriff, who was acting as a school resource officer, was present during the school official’s questioning but did not question the student himself. The case arose from the following facts: a student, Antonio T., allegedly arrived at school smelling of alcohol. The assistant principal questioned Antonio T. but did not give him a Miranda warning because the assistant principal considered the encounter to be non-custodial.  Antonio T. was, however, required to take a Breathalyzer test. His breath tested positive for alcohol, and he was charged with possession of alcohol by a minor. The N.M. Supreme Court applied a state statute requiring proof of a valid waiver of a student’s constitutional rights before a statement may be used against that student in a delinquency proceeding. The Court found that the issue was not whether the assistant principal’s questioning was an investigatory detention, but instead whether Antonio T.’s statements were inadmissible under the statute because there was no proof of a valid waiver of right to remain silent. Without that proof, the appellate court held, the student’s statements made in response to the assistant principal’s questioning were inadmissible against him in delinquency proceedings. Read State v. Antonio T., No. 33,997 (N.M. Oct. 23, 2014) here.

November 7, 2014 in Cases | Permalink | Comments (0)

Thursday, October 30, 2014

New Mexico Court of Appeals Allows Private Schools to Use State-Funded Textbooks

On Monday, the N.M. Court of Appeals upheld the constitutionality of a law requiring the state to provide instructional materials to schools, including private ones. A group of plaintiffs sued the the N.M. Public Education Department and challenged New Mexico's Instructional Material Law that requires the state education department to buy and distribute instructional material to schools "as agents for the benefit of eligible students." NMSA 1978, §§ 22-15-1 to -14. The plaintiffs argued that the law conflicted with several articles of the New Mexico Constitution, including the state's counterpart to the Free Exercise and Establishment Clauses, articles prohibiting the state from investing in private corporations and granting the state exclusive control over education. Finding for the state education department, the Court of Appeals held that "the mere indirect or incidental benefit to the private schools" did not violate the state constitution. The court interpreted the state constitution's prohibition against public funding of "sectarian, denominational or private" schools to have intended only to maintain state control of public schools and keep public schools from becoming sectarian. In rejecting the plaintiffs' arguments based on cases from the U.S. Supreme Court and other states, the New Mexico court stated, "We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford." Moreover, the court noted, the books are not given to private schools, but the schools only receive possession of the books as agents for the students. Read Moses, et al., v. Skandera, Acting Sec'y of Education, No. 33,002 (N.M. App. Oct. 27, 2014) here.

October 30, 2014 in Cases, State law developments | Permalink | Comments (0)

Friday, October 24, 2014

Mississippi Special Needs Class Action Suit Settled; Court Orders Monitoring for Compliance

In a case that Derek previously posted about here, a federal district court has administratively closed a class-action suit filed by special-needs students against the Mississippi Department of Education. The district court’s order allows either party to reopen the suit for noncompliance with the terms of a September 2014 settlement agreement. Corrie Cockrell, an attorney with the Southern Poverty Law Center that represents the students, told the Jackson Clarion-Ledger yesterday, "We reached an agreement with the state because we felt it was in the best interest of our clients." In the case, E.H. v. Mississippi Dept. of Educ., 2013 WL 4787354 (S.D. Miss. 2013), special-needs students sued the Mississippi Dept. of Education for its failure to force Jackson Public School District (JPS) to comply with the IDEA's mandate of a Free Appropriate Public Education. The Department investigated the complaint against JPS and, after finding IDEA violations, ordered the school district to remedy the violations or risk losing its accreditation. JPS missed two deadlines for compliance, prompting the plaintiffs to sue in federal court. The Department eventually found that JPS corrected the IDEA violations, but the student-plaintiffs found that it was difficult to verify the Department’s findings. The students thus asked for quarterly progress reports in the settlement, Cockrell said, to ensure that JPS is “moving in the right direction.” According to the Clarion-Ledger article, the state set a goal for 71% of children with disabilities to graduate, but just 12% of those in JPS did as of 2012. The state's average graduation rate for students with disabilities is 23%. Read the settlement agreement in E.H. v. Mississippi Dept. of Educ. here.

October 24, 2014 in Cases, Special Education | Permalink | Comments (1)

Monday, October 6, 2014

Teachers Who Report Abuse: Law Enforcement Agents or Good Samaritans?

Last week, the Supreme Court granted cert in Ohio v. Clark, a case involving whether teachers' obligation to report suspected child abuse makes  them law enforcement for purposes of the Confrontation Clause.  If so, a student's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse would qualify as “testimonial” statements subject to Confrontation Clause restrictions.  Colin Miller, at EvidenceProf Blog, offers this summary and analysis of the case:

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October 6, 2014 in Cases, Supreme Court | Permalink | Comments (2)

Wednesday, September 17, 2014

Washington State Legislature Found in Contempt in School Funding Case

Following up on Derek's post, Washington Supreme Court Turns Up Heat on State Legislature in School Funding Case, last week Washington's high court found the legislature in contempt as some predicted after oral arguments in the case. The Washington Supreme Court's ruling in McCleary, et al. v. State of Washington, comes during a tumultuous year for the legislature on school funding issues. This spring Gov. Jay Insbee blamed the legislature for Washington becoming the first state to have its NCLB waiver revoked this spring, the state supreme court ruled in January (in this case) that the state's education funding system was unconstitutional, and the state faces a $1 billion education budget shortfall. In McCleary, the court indicated it has grown tired of legislative delays in complying with the court's January order to fully fund basic education by the 2017-18 school year. The court wrote last week that it was not issuing the order simply to get the legislature's attention. Instead, "contempt is the means by which a court enforces compliance with its lawful orders when they are not followed," the court wrote. Read the court's order in McCleary, et al. v. State of Washington here.

September 17, 2014 in Cases, State law developments | Permalink | Comments (0)

Friday, September 12, 2014

Philadelphia Parents Sue State Ed Secretary for Ignoring Their Complaints about School Conditions

Parents of children in the embattled Philadelphia school system sued state education secretary Carolyn Dumaresq Tuesday, claiming that she has failed to address their concerns about  overcrowding, limited curricular offerings, lack of counselors and school nurses, and poor toilet facilities in the schools. Philadelphia parents and the advocacy organization, Parents United for Public Education, asked the state court to order Secretary Dumaresq to investigate the hundreds of parent complaints of "massive deficiencies in city schools." In a media release about the case, Education Justice, a program of the Education Law Center, blames the schools' deteriorating condition on shortfalls in aid to Philadephia schools since the state's 2001 takeover. The annual budget shortfalls force the district's schools to operate on what the lawsuit's plaintiffs call a "Doomsday Budget." Read the complaint in Allen v. Dumaresq here.

September 12, 2014 in Cases | Permalink | Comments (0)

Wednesday, August 20, 2014

Judge Rules Against Louisiana Gov. Jindal in Common Core Lawsuit

A Louisiana judge yesterday enjoined Gov. Bobby Jindal's move to block the implementation of the Common Core standards in Louisiana. The judge's grant of a preliminary injunction in favor of a New Orleans charter school group and the state Board of Elementary and Secondary Education  comes after Gov. Jindal threatened to cancel the state procurement contract with with the Partnership for Assessment of Readiness for College and Careers (PARCC), the testing group that develops exams based on the standards. In the suit, Jindal argued that the BESE violated state procurement law in its contract with PARCC and delegated its authority to set education policy to an outside party. Gov. Jindal's position conflicted with that of state education superintendent Jim White, who is a Jindal appointee. Gov. Jindal became a staunch critic of the Common Core standards this year, saying that the standards reflected the federal government meddling in state education. Judge Todd Hernandez cited the disruption to education at the start of the school year as influencing his decision, writing that "[t]he loss of time is irreparable. With each passing day teachers and parents lose time preparing students for high stake testing, and there is a lot riding on the student's successful performance on these tests." Gov. Jindal's staff told the New Orleans Times-Picayune that he will appeal. Read the opinion here.

 

August 20, 2014 in Cases, News | Permalink | Comments (0)

Wednesday, July 30, 2014

Federal Court Dismisses Challenge to School Closures in D.C.'s Minority Areas

The D.C. federal district court granted summary judgment for the D.C. Public Schools (DCPS) in a lawsuit that alleged that DCPS discriminated against minority students by closing schools in minority neighborhoods while allowing predominantly white schools to stay open. The suit's plaintiffs, parents of schoolchildren in the affected districts, also alleged that the school closures funded performance bonuses for teachers in disproportionately white schools and the closures are intended to expland charter schools, which, in turn they allege, are themselves discriminatory institutions. DCPS said that it closed 15 schools and plans to close more because of low enrollment. DCPS said that it would reallocate the savings to put students in more modern facilities and create more programs for the remainining schools. The court rejected the plaintiffs' arguments, stating that both white and minority schools have closed for low enrollment and attributed the pattern of closures in minority areas as "residential segregation, along with changing population patterns, that is largely to blame for the disparities in the closures.” Noting that the school-closure plan was facially race neutral, the court found that the plaintiffs failed to prove that the District’s plan was applied differently because of students’ race or motivated by discriminatory animus. While all of the schools set to be closed are in  majority-minority, lower-income neighborhoods, the court noted that the schools' have been "drained of their students by the increasing popularity of charter schools," with 40%-50% of schoolchildren in those areas now attending charter schools. The federal district court found that DCPS could not be found to be "discriminating by attempting to provide all children with access to higher-achieving schools." Finding that DCPS's stated goals-- to increase efficiency and improve the District's overall school services -- were justifiable, the court dismissed the plaintiffs' Title VI and Equal Protection claims.  Read the opinion in Smith v. Henderson, No. 13-420 (D.D.C. July 18, 2014) here

July 30, 2014 in Cases, Discrimination | Permalink | Comments (0)

Tuesday, July 22, 2014

Indiana School District Not Entitled to Summary Judgment on Discretionary Immunity Claim In School Shooting Case

The Indiana Court of Appeals recently ruled that a negligence claim could go forward against a school district for failing to protect two victims of a school shooting. The case arises from a shooting in Martinsville West Middle School, Indiana, after a student, Phelps, shot two students, C.J. and B.K. The two injured students, through their parents, sued the Martinsville Metropolitan School District claiming that the district failed to protect the students from Phelps by negligently leaving a school door unlocked that allowed Phelps to enter with a gun. The students alleged that the district failed in its duty of care by failing to warn staff that Phelps posed a threat and failed to tell staff to look for Phelps on school grounds after he was suspended and to call 911 if Phelps was spotted on school property after he had been banned from school grounds. The school district lost its motion for summary judgment before an Indiana state court and appealed. The Indiana Court of Appeals affirmed the lower court’s denial of summary judgment, finding enough evidence to show that the district was not immune from liability under the Indiana Tort Claims Act and that the School District did not breach its duty to C.J. and B.K. The Court of Appeals also rejected the district’s argument that C.J. was contributorily negligent for failing to alert school authorities that Phelps had made a threat against him. The Court of Appeals concluded that the school principal’s safety plan did not entitle the district to discretionary function immunity under the Indiana Tort Claims Act because the school district was the ultimate policy-making body. While the school principal had authority over the operation of the school, the principal had no policy-making authority. The appellate court further determined that the case had genuine issues of material fact on the negligence claims because the district did not prove as a matter of law that the shooting was unforeseeable. The court noted that “Phelps had a lengthy history of serious misbehavior in school; threatened to blow up the school; and was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting, ... and had made threats against C.J., of which at least one [] teacher was aware.” Given these facts and the court’s stated reluctance to find summary judgment in fact-intensive negligence claims, the Court of Appeals held that that the question of breach of duty was best left to a jury. Read Metropolitan Sch. Dist. of Martinsville v. Jackson, No. 55A01-1304-CT-182 (Ind. App. Ct. May 19, 2014) here.

July 22, 2014 in Cases | Permalink | Comments (0)

Thursday, July 17, 2014

Mysterious Group Sues California School Districts for Providing Inadequate PE Time

A mysterious group called Cal200 has filed class action lawsuits against 3 dozen California school districts for failing to providing students with the 200 minutes of PE every 10 days required by state law (an average of 20 minutes a day). Cal200 has no apparent connection to education or the school districts that it is suing, which include Los Angeles Unified — the second-largest school district in the nation — San Francisco Unified, Riverside Unified, San Bernardino City Unified, Palm Springs Unified, and Desert Sands Unified. Cal200's president has refused to provide details about its membership or history. Little information is available on Cal200's website, leading the president of the Palm Springs Teachers Association to conclude that "this lawsuit is low-hanging fruit. Everybody knows that PE has been pushed aside. People saw this coming, and it was avoidable." In April, a risk management organization warned California school districts about Cal200 -- that the organization requests teachers' lesson plans through a public records request, then sues based on the information provided. The Desert Sun reports:

A few years ago, as the economic recession whittled away at state education funding, many elementary schools shifted more of the responsibility for PE onto classroom teachers. Under this system, students would spend a limited amount of time with a specialized PE teacher once or twice a week, and then their regular teacher would add more physical activity into the classroom routine.

The plan works on paper... but in reality, many teachers are stretched too thin to provide the PE minutes. Teachers are under constant pressure to produce high-testing students, so some have sacrificed PE minutes so they could have extra time for English or math[.]

Read more at the Desert Sun here.

July 17, 2014 in Cases, News | Permalink | Comments (0)

Federal Court Dismisses Group's Suit to Distribute Anti-Religion Flyers on School Grounds

The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County  School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida  to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.

July 17, 2014 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, July 9, 2014

NY High Court Opinion Shows Difficulty of Tailoring Cyberbullying Laws

The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.

July 9, 2014 in Cases, First Amendment | Permalink | Comments (0)

Monday, July 7, 2014

Students with Mental Health Needs Unnecessarily "Warehoused," Lawsuit Charges

A class action suit recently filed in federal court alleges that students with mental health needs are being "warehoused" by the Springfield, MA school district without educational opportunities or therapeutic supports. The suit was filed by the Parent/Professional Advocacy League (PPAL), a grassroots organization that focuses on mental health issues, on behalf of students at Springfield's  Public Day School. The suit charges that the school uses "behavior control using drastic methods including dangerous physical restraints, forced isolation in padded rooms and repeated arrests and suspensions for minor offenses." The plaintiffs claim that the Day School's students are being segregated in violation of the ADA and instead students could be educated in neighborhood schools with reasonable modifications and services. The Day School offers few of the extracurricular activities and vocational opportunities available to children in neighborhood schools, the plaintiffs also argue. The complaint further alleges that the effects of hyper-discipline and isolation on the students contributes to the Day School's high drop out rate of 41% in 2013-14 (compared to the overall 6.5% rate in Springfield's other schools). The PPAL and the students are being represented by attorneys from the Bazelon Center for Mental Health Law, the Center for Public Representation, and Boston law firm Bingham McCutchen. Read the complaint in S.S. v. City of Springfield here.

July 7, 2014 in Cases, Special Education | Permalink | Comments (0)