Education Law Prof Blog

Racist Speech, Student Protest, and Institutional Responses

When students first began protesting the fact that names like Woodrow Wilson appear on a building at Princeton and William Saunders on a building at UNC, I had my misgivings.  Yes, the students were correct about the history--these individuals have racist legacies--but the details of the buildings matter.  Was the name placed there to honor the racist legacy?  Was it put there because the family actually donated the money for the building?  Was it because of the alum's political fame?  Is there even a continuing message being sent if no one knows who the person is?

These building names cannot be conflated with confederate memorials, at least not on a wholesale level.  The confederate memorials raise far clearer problems.  The motivation for them has most often been racist and their continuing symbolism can be harmful. Thus, removing them implicates a different analysis.

Nonetheless, I eventually recognized that I am probably too old to have an opinion on what young people do or do not protest about.  I will probably get it wrong.  It is the youth who push us to see the world anew--more clearly--not purported wise elders.  "Wise elders" should offer perspective, but forceful direction is probably more a hindrance than help. 

In retrospect, we should now see that those protesting students elevated a conversation that would have been missed without them.  They have forced a reevaluation of numerous assumptions on main campus.  We owe them thanks.  And we probably owe them deference in the future.

I offer that as backdrop to a student protest at Lake Oswego.  Local news reports that:

Lake Oswego Junior High students staged a walkout at 9 a.m. Monday in response to racist behavior at the school. An estimated 200 students took part in the walkout that lasted a little over and hour. Students could be heard cheering at speeches mode over a megaphone.

More than a week ago, three white students handed a note to another student who is African-American. The note had the N-word on it. The Lake Oswego School District told the boy's mother that two of the three students received "in-school suspensions," but she said not enough is being done.

The mother, Jennifer Cook, said her son has heard the N-word at the school before. She said she was proud of the students for doing the walkout.

"I think it’s incredible, I think it’s great to see the support that the children have for him and their response to this is going to be way better than the school’s response," said Jennifer Cook just prior to the walkout.

The school sent an email message to parents saying they are aware of student plans to walk out Monday. They said they support the students' right to express their opinions and hope to provide a safe environment.

"There will be additional adults including our counseling team on hand, and outside groups will not be allowed on campus," the message said.

According to the Lake Oswego Review, a Facebook post on their site that in part outlined what the mother described as the punishment to the students was shared over 1,800 times.

Sources have told that newspaper that the student who actually passed the note received a one day suspenstion. Two other students were given detentions on campus.

According to the paper, the school and the district office was peppered with angry emails and phone calls. Many were angry over the punishment and or demanded a "zero-tolerance" policy.

The district has issued the following statement on what it intends to do next.

I imagine there a lot of proud parents in Oswego.  I know I would be, but the call for "zero-tolerance" toward the offending students gives me far more concern than the call to take names off of buildings two years ago.  Zero tolerance can be defined in many ways.  It can mean not tolerating a particular type of behavior under any circumstances, but that definition can leave upon the question of what the particular punishment will be.   It could be minor or serious punishment.  Or zero tolerance can mean not tolerating the behavior at all and mandating a severe punishment, such as suspension or expulsion, when it occurs. 

It seems the angry emails to the district in Oswego are calling for the later.  In-school-suspension, to them, is not harsh enough.  

That is a hard position to countenance.  Save situations when a student has intentionally brought a gun to school with a bad purpose in mind or is selling drugs, zero tolerance policies that automatically exclude students from school are a bad idea, if not unconstitutional.  First, they do not actually stop the misbehavior in the long run.  They often make it worse. Second, they impose an enormous harm on the student.  Third, they ignore circumstances that are really important--the age of the child, the seriousness of the behavior, culpability, intent, etc.  When schools ignore those things, they act irrationally and do not do anyone any good.

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New Report Examines School Climate Post-Election, Finds Heightened Anxiety and Harrassment

The South Poverty Law Center’s Teaching Tolerance project conducted a survey in the days following the election and got responses from over 10,000 teachers, counselors, administrators and others who work in schools.  SPLC described the responses as "indicat[ing] that the results of the election are having a profoundly negative impact on schools and students. Ninety percent of educators report that school climate has been negatively affected, and most of them believe it will have a long-lasting impact. A full 80 percent describe heightened anxiety and concern on the part of students worried about the impact of the election on themselves and their families.  Also on the upswing: verbal harassment, the use of slurs and derogatory language, and disturbing incidents involving swastikas, Nazi salutes and Confederate flags."  The survey used the results from its earlier survey in March as its baseline to determine if things had gotten worse.  One of the most troubling lines in the report is: "The increase in targeting and harassment that began in the spring has, according to the teachers we surveyed, skyrocketed. It was most frequently reported by educators in schools with a majority of white students."

Its summary findings include:

• Nine out of 10 educators who responded have seen a negative impact on students’ mood and behavior following the election; most of them worry about the continuing impact for the remainder of the school year.

• Eight in 10 report heightened anxiety on the part of marginalized students, including immigrants, Muslims, African Americans and LGBT students.

• Four in 10 have heard derogatory language directed at students of color, Muslims, immigrants and people based on gender or sexual orientation.

• Half said that students were targeting each other based on which candidate they’d supported.

• Although two-thirds report that administrators have been “responsive,” four out of 10 don’t think their schools have action plans to respond to incidents of hate and bias.

• Over 2,500 educators described specific incidents of bigotry and harassment that can be directly traced to election rhetoric. These incidents include graffiti (including swastikas), assaults on students and teachers, property damage, fights and threats of violence.

• Because of the heightened emotion, half are hesitant to discuss the election in class. Some principals have told teachers to refrain from discussing or addressing the election in any way.

The title of the report hangs this problematic upswing on the President-elect: The Trump Effect: The Impact of The 2016 Presidential Election on Our Nation's Schools.  While the upswing in problems seems clear enough, the cause of the problem is far more complex.  Trump no more created racism than did Obama eliminate it.  The election of both may have ironically unleashed new strains of it in their own time.  Likewise, as bitterly contested as the election was among their parents, it is no surprise that tensions filtered into schools.  In schools, thing can often get worse because schools offer a captive audience populated by immature (which is not meant pejoratively) and developing young persons.  Some might recall students proudly donning Obama T-Shirts following his elections, which predictably led to incidents.  

With that said, this time it does appear to be more serious.  The important point, however, is not Trump, Obama, or the election.  The important point is that, thus far, the climate in many schools and for many children has not been good. When that climate produces a negative environment aimed at students based on race, ethnicity, gender, disability, or language status, federal law obligates schools to act to address the situation.  If they do not, it will be the job of the Office for Civil Rights at the Department of Education to step in, both now and under the next administration.  And federal law aside, when the climate negatively effects student learning, it is the job of school leaders to constructively address it.

Get SPLC's full report here.

Feds Take Action to Address Religious Discrimination in School

Some news outlets have reported a rise in religious based discrimination. According to the Huffington Post, "There have been roughly 100 hate crimes committed against Muslims in the U.S. since the Paris terror attacks in November 2015, according to the group Muslim Advocates. Georgetown University’s Bridge Initiative found that there were more acts of anti-Muslim violence and vandalism in 2015 than in any year since Sept. 11. The Huffington Post has also recorded more than 260 acts of anti-Muslim violence, discrimination and political speech in the United States this year."  Schools have been no exception. 

 

 

This religious based discrimination can also take on a racial and ethnic component, particularly with students whom others believe, correctly or incorrectly, to be Muslim or Jewish. This summer the Department of Education's Office for Civil Rights took official steps to address the issue.  Its press release follows below:

 

As part of ongoing efforts to encourage respect for students of all faiths and beliefs, the U.S. Department of Education today shared a series of actions that confront discrimination and promote inclusive school environments.

The steps include a new website on religious discrimination, an updated civil rights complaint form, an expanded survey of America's public schools on religious-based bullying, technical assistance for schools, and recent outreach on confronting religious harassment in education.

"Students of all religions should feel safe, welcome and valued in our nation's schools," said Assistant Secretary for Civil Rights Catherine E. Lhamon. "We will continue to work with schools and communities to stop discrimination and harassment so that all students have an equal opportunity to participate in school no matter who they are, where they come from or which faith, if any, they subscribe to."

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Parents Allege Racial and Sexual Harassment Led Student to Commit Suicide and District Did Nothing

A new lawsuit against against a school district just outside Cincinnati, Ohio, raises several interesting factual and legal claims.  Unfortunately, they are bound up in incredible tragedy. According to the complaint, Emilie Olsen, a middle school student, committed suicide following an extended period of regular and egregious harassment and bullying.  The introduction to the complaint states:

Emilie, an Asian-American, was continually bullied, harassed, assaulted, battered, and discriminated against in school, and further bullied and harassed online, because of her race, national origin, and gender, as well as her association with Caucasian students, and her perceived sexual orientation and practices. Emilie and her parents tried to end the bullying and repeatedly pleaded with certain Defendants for help. Defendants failed to stop the bullying, and it continued. Consequently, Emilie suffered severe anguish, distress, and depression, and ultimately committed suicide. Sadly, Emilie’s case was not an outlier; other Fairfield students also suffered unrelenting bullying and discrimination, and two of those students attempted suicide months before Emilie’s death. Certain of the Defendants, likewise, failed to intervene on behalf of these students. This action seeks damages and seeks to reform the Fairfield City Public Schools’ policies and practices for responding to bullying, harassment, assault, battery, and discrimination.

The complaint frames these facts as violations of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Substantive Due Process, and Equal Protection.  It also raises Section 1983 claims, alleging a pattern and practice of violating these aforementioned rights, along with a host of state law claims.  

The first issue that jumps out at me is one of mixed motive.  The complaint details a long list of incidents, statements, and altercations, some of which relate to sex, some of which relate to sexual orientation, and some of which relate to race and ethnicity.  Some incidents do not facially fit into any category of discrimination and could be either general bullying or circumstantially related to the aforementioned discrimination.  General bullying would not violate any federal statutory protection, although it might fall into a substantive due process claim if sufficiently egregious and ignored.  

Bullying need not, of course, fit into any single prohibited category to be actionable, but it does need to fit in some category.  The "cleanest" cases are those where the bullying is strictly about race or gender, as the fact finder does not need to work as hard to discern a prohibited motivation or form of discrimination.  This makes the narrative of discrimination easier to build.  In the instant case, race and ethnicity seems to be a dominant aspect of the harassment, but sex and potentially sexual orientation seem to play a significant role as well.  The court, however, will either need to sort these types of discrimination out or recognize the inter-sectional nature that discrimination often takes but which courts sometimes fail to appreciate. Here, it may very well be the case that this student's gender, sexual orientation, race and ethnicity all intersected to create a particularly virulent form of discrimination.  Life, quite simply, does not always fit easily into the neat boxes the law would proscribe.

Second, this case raises the same issues always at play in harassment cases: what exactly did the district know and, if they knew something, did they do enough to address it.  Title VI and Title IX law is pretty permissive on both questions.  Teacher knowledge is not enough.  Agents of the school (principals, administrators, etc) must have knowledge of the harassment that amounts to prohibited discrimination and fail to reasonably respond.  Failing to respond means more than just failing to stop the discrimination. Here the district, according to the complaint, was repeatedly put on notice on numerous occasions of what occurred.  The parents, however, seem to have been kept in the dark about a lot of things, including incidents that the district may have learned of itself and the district did or did not take to address them.  For the most part, the complaint alleges that the district did nothing to respond, which very well may be true, but one could fairly assume the district will point to a number of things it did, in fact, do.  The determinative question will be whether whatever the district did was enough.

The lawsuit, interestingly, goes beyond these basic notice and response questions of statutory claims, raising constitutional claims that potentially require a broader inquiry into whether the district actively put the student in danger or harbored some impermissible biases or neglect of its own.  I will, however, reserve that discussion for later.

Parents to Sue School over Racially Motivated Attack

Parents of a Long Island teenager indicate that they will sue Valley Stream School District for failing to prevent an attack on their son--an attack that they say was racially motivated. Their son was apparently hospitalized and  needed 32 stitches to close a wound on his head.  Their attorney said that the student suffered "a concussion, a skull fracture that required an emergency craniotomy; which means they basically had to relieve the pressure and the pain that was building up on top of his brain.”  To bolster their claim, they also point out that that their son was attacked two years earlier while at school.

News outlets report that the aggressor plead guilty to a misdemeanor charge in the most recent assault.  While the severe injuries and the misdemeanor charge certainly lend sympathy to the parents' claims, these types of lawsuits are notoriously hard to win absent special circumstances.  Those circumstances may be present here and the public just is not aware of them, but typically a school is under no duty to "prevent injuries" to students. To sustain a torts claim in most states, a plaintiff would need to show that the district failed to reasonably supervise its students and the bar for reasonable supervision is generally low.  Another option may be to raise a Title VI claim regarding a racially hostile environment.  This claim also has its drawbacks.  The parents would need to show that the district had failed to reasonably respond to racial discrimination of which it had been put on notice.  As long as the district took some sort of progressive response to dealing with the problem, the fact that the student was later more seriously injured would not mean the district had acted unreasonably.

In short, until we see an actual complaint, the case is hard to predict, but plaintiffs will certainly need to show more than just an injury to sustain a claim.  Legal merits aside, however, the story is troubling.

 

 

The Every Student Succeeds Act's Random Additions: Charter Schools, Data Collection, Testing Limits, and Discipline

My prior post detailed the Act’s new approaches toward academic standards and accountability, teachers, funding, and the federal role in education.  The Act also included some other important changes and additions that do not fit into those categories.  These changes are one-offs that look like bones thrown to various different and competing constituencies (which is probably true of a few of the progressive changes I noted last time).  In other words, they are pet projects that helped the bill get passed.  These changes include for charter schools, data, test validity, test opt outs, and school discipline

Charter Schools

The act includes new competitive priorities for charter school grants.  For those unfamiliar with the term competitive priority, it means that states or districts that include certain policies in their competitive charter school grant application will receive extra points in the assessment of their plan.  As a practical matter, it makes it far more likely that they will receive a grant.  It also makes it highly unlikely that states and districts that do not include those policies will receive a grant.  In short, they are implicit mandates for those who want money.

So what are these special charter school policies?  They are exactly what charter advocates have been lobbying states to do, often with little success.  The priorities are for states that increase the number of entities in the state that can authorize new charters, states that give charters per pupil funding equivalent to that in traditional public schools, and states that give more robust support for charters in need of facilities.

Magnet Schools

Nothing really changed for magnet schools, and that is the point.  Magnet school financial support and policy has been stuck in neutral for nearly two decades.  By comparison, this means magnet schools are moving backward while charters rush forward.  There is, however, one potentially explicit retrogressive addition for magnets.  The Act seemingly requires or strongly prefers socio-economic integration over any other form of integration.  Socio-economic integration is, of course, immensely important.  The point here is the attempt to take race off the board—a position that the Bush Administration took, that the Obama Administration eventually retracted, and that has now resurfaced.

Important Data

The Act requires states to collect and submit far more detailed data, and the new data it seeks is important: funding and teachers.  This will be a boon to researchers attempting to drill deeper into problems of resource inequity.

Valid Tests (Potential Bombshell)

A provision of Title I indicates that states can only use the mandated tests for purposes for which they are valid.  To most, this may read as no more than technical jargon, but it is potentially the single most powerful provision in the bill for those who would seek to block the misuse of tests.  As I detail here, the tests on which states rely to run their teacher evaluation systems (value added models and student growth percentiles) are not valid for those purposes.  Others have also long raised validity problems with certain states use of high stakes tests for student graduation and promotion as well.  Who knows whether this was Congress’s intent, but the Act certainly would appear to have the effect of preventing states from using standardized tests for illegitimate purposes.  The question that remains is whether individual teachers or students could rely on this provision in litigation or whether it is up to the Secretary to enforce this provision through the administrative process.

Test Opt-Outs

The Act gives parents the right to opt their children out of standardized tests.  Opt-outs were big news last year, as large percentages of students refused to take tests in New York and New Jersey and the states scrambled not knowing whether the Department would hold this against the states.  The Act now specifically indicates that these opt-outs will not count against the state in determining the percentage of students who took the tests.

Discipline: Bullying and Suspensions

Finally, the Act gives a big boost to progressive discipline policy.  Previously, there was no such thing as general federal authority in regard to discipline.  The only foothold had been in regard to racial disparities in discipline (pursuant to Title VI).  The Act now specifies that states’ plans should include policies to reduce bullying, suspensions, and averse responses to student misbehavior.  The bullying provision is, likewise, significant because it is not limited gender or race based bullying--a big stumbling blocking in past enforcement efforts.  To be clear, however, this discipline provision operates within the larger structure that offers states’ enormous autonomy in their plans and severely limits the Secretary’s ability to reject a state plan.

Senate Votes Down ESEA Amendment to Protect LGBTQ Youth

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.

 

Office for Civil Rights Releases Report to Congress: This Time It Is a Must Read

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.  

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Report Finds LGBTQ Youth Blamed for the Bullying They Experience

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.

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Give Me Your Password: Are Social Media Intrusions by Schools Reasonable or Unconstitutional?

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.'"

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School Not Liable for Off-Campus Suicide, But May Be for Emotional Injuries Suffered at School

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 [1976]; 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).

Nation's First Anti-Bullying Ordinance Defeated

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.

From the School Yard to Cyberspace: A Review of Bullying Liability

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.

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.

 

School Reportedly Suspends Student for His "Gay Lifestyle"

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). 

 

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.

School Excluding Transgendered Student from Yearbook Changes Position

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.

Sixty-Seven Percent of College Students Report Being Harassed on Campus

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).

Hazing Comes to High School

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.

 

School Superintendent and Athletic Director's Commonplace and Brazen Use of Racial Epithets

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.

The district apparently knew of these communications earlier and tried to cover them up and keep the men employed.  My guess is that the fall-out over these statements themselves is just the tip of the iceberg.  Soon enough, dismissed teachers, disciplined students, and harassed students will begin to comb the policies, records, data and decisions of this district.  When they do, any number of Title VI and Title VII lawsuits might follow.  It is hard to imagine that two men in leadership positions like this were fair and unbiased in the numerous official decisions they have made in past years.  The first in line may be the African American teachers who were laid off.