School-Friendly YouTube Channel

YouTube has launched a new network – YouTube for Schools – that allows educators to grant students access to educational content from YouTube EDU while excluding other content.  YouTube EDU includes content from the Smithsonian, TED, Steve Spangler Science, MIT and Numberphile, among many others. 

Meghan Covert Russell

Attempt to Fix the Open Enrollment Act Vetoed by Governor Brown

AB 47 would have addressed some flaws in the Open Enrollment Act (aka the Romero Bill) but was vetoed by Governor Brown on October 8, 2011. The Open Enrollment Act was enacted last year in the wake of legislative flurry to enact Race to the Top legislation. The Act requires the Superintendent of Public Instruction to identify a list of 1000 “low-performing” schools ranked by API scores, limits any one district’ schools on the list to 10% and exempts charters and other specified schools from the list.

During its first year of implementation in 2010-11, the list of 1000 schools included a number of high performing schools with API scores of 800 and above as well as a number of special education programs. In 2010, at least 96 of these schools requested and received a waiver from the Act’s provisions. An additional 103 low performing charter schools were excluded from the list.

AB 47 would have required a list of up to 1000 schools rather than a total of 1000 schools. It also would have excluded any school with an API over 700 or that had growth of 50 points or more from the list; and would have included charter schools but excluded special education programs.

While the bill had considerable education community support, passage of the bill was based on a clear party line vote. Perhaps the Legislature will try again next year and Governor Brown will change his mind, allowing the flaws to be fixed while maintaining the original intent of the Open Enrollment Act.

Sally Jensen Dutcher

Governor Vetoes AB 165-Student Fees Bill

AB 165 codified the state constitutional right to a free public education by prohibiting school districts from charging fees for classes and extracurricular activities. It also included new onerous enforcement mechanisms for districts and complaint procedures for parents.

In his veto message on October 8, Governor Brown said district compliance with this right is essential and districts should be held accountable, but this bill took the wrong approach. He stated that “the bill would mandate that every single classroom in California would mandate that every single classroom in California post a detailed notice and all 1042 school districts and 1200 charter schools follow specific complaint, hearing and audit procedures, even where there have been no complaints, let alone evidence of any violation. This goes too far.”

It appears the veto will require the parties to the ACLU lawsuit to go back to court or participate in further settlement discussions. In the meantime, districts should continue to review their student fees practices to ensure compliance but they can enjoy a reprieve from the onerous enforcement mechanisms in AB 165. For additional analysis and discussion please see our Legal Alert.

Sally Jensen Dutcher

The California School Boards Association (CSBA), the Association of California School Administrators (ACSA), the Los Angeles Unified School District, the San Francisco Unified School District and other school officials announced yesterday that they have filed a lawsuit in San Francisco Superior Court against the State over an alleged $2.1 billion education funding deficit. The suit seeks a recalculation of the Proposition 98 formula that determines how much funding schools receive annually.

Notably, the California Teachers Association (CTA) is not part of this lawsuit. Last summer, the Governor and state lawmakers struck a last-minute budget deal, with the blessing of CTA, which included provisions restricting further teacher layoffs and a retroactive payment promise if California voters do not approve a tax increases next year.

In similar news, The Arc of California and the United Cerebral Palsy Association of San Diego, both advocacy groups for the disabled, also filed suit against the State over budget cuts that have affected services provided to developmentally or physically disabled persons.

For more information on these two suits, see coverage here.

Meghan Covert Russell

Schools Planning to Sue State over Education Funding

The California School Boards Association (CSBA), the Association of California School Administrators (ACSA) and school districts will hold a press conference this morning to explain their case for suing the state over the $2.1 billion in education funding that they believe should have been provided in the budget pursuant to estimates under Proposition 98.

KMTG will follow the news and keep you posted.

Meghan Covert Russell

President Unveils Plan to Provide NCLB Waivers

Last week the President unveiled a plan to provide states with flexibility from the requirements of No Child Left Behind (NCLB), also known as the Elementary and Secondary Education Act (ESEA). The waiver discards the 2014 proficiency deadline originally set forth under NCLB. In order to qualify for a waiver states must demonstrate that they have a plan to address the following three areas:

• Transitioning to college and career-ready standards and assessments;
• Developing systems of differentiated recognition, accountability and support; and
• Evaluating and supporting teacher and principal effectiveness.

The waiver would be in effect through 2014, in an attempt to allow states time while Congress attempts to complete an ESEA-reauthorization bill.

More information is available on the Department of Education’s Blog.

Meghan Covert Russell

US Department of Education Releases Final Regulations for Part C of the IDEA

The US Department of Education has finalized regulations that pertain to the Early Intervention Program under Part C of the Individuals with Disabilities Education Act (IDEA), which was amended in 2004. Part C is a $436 million program administered by the states that serves infants and toddlers up to age two who are diagnosed with physical or mental disabilities that may result in developmental delays.

As educators know, early identification and treatment of children with disabilities is essential for their later success. These regulations provide over 900 pages of guidance for individuals who work with children under Part C of the IDEA.

For more information please visit the US Department of Education’s website.

The final regulations are available online and will be published in the Federal Registrar: http://www2.ed.gov/policy/speced/reg/idea/part-c/idea-part-c-final-regs.pdf

Meghan Russell Covert

Florida Teachers’ Union Challenges Merit-based Pay Law

Earlier this year Florida passed a law that would eliminate tenure for newly hired teachers beginning this year and that requires school districts to implement a merit-based compensation system, linking teacher compensation to student achievement, by 2014. The Florida Education Association (“FEA”) filed suit this week alleging that the law unconstitutionally alters how teachers are paid and evaluated and denies teachers right to collective bargaining.

Although not the only state to tackle issues of tenure and teacher evaluations, Florida is thus far the only state to require a merit-based pay system statewide.

Meghan Covert Russell

Student Fees Bill Sent to Governor for Signature

AB 165 has passed through the Legislature and sent to the Governor for signature. This bill was introduced as part of the ACLU Student Fees lawsuit tentative settlement agreement. See January 11, 2011 Legal Alert.

The ACLU lawsuit was filed in September 2010 against the State of California and Governor Schwarzenegger alleging public school districts were charging impermissible fees to students in violation of the California Constitution’s free school guarantee. The lawsuit was tentatively settled in December 2010 but that settlement required both parties to engage in good faith efforts to enact legislation and regulations that adopt the proposals outlined in the settlement.

AB 165 includes provisions that are substantially similar to the settlement proposals and include new enforcement mechanisms for districts and complaint procedures for parent. If signed, the provisions will become effective January 1, 2012. Districts should be reviewing their student fees now to ensure only permissible fees are charged. Watch for an updated Legal Alert.

Sally Jensen Dutcher

One Quarter of Teens are Bullied

A recent report by the National Center for Education Statistics indicates that approximately 25% of high school students were victims of bullying during the 2008-2009 school year. The report also notes that 7% of students were victims of cyberbullying, and about 15% of those students who were cyberbullied later got into a physical fight as a result of the bullying.

Bullying remains a growing problem for teachers and school administrators, who are forced not only to deal with traditional bullying on the playground or in school hallways, but also with the changing face of the bully through technology such as social media and text messaging.

For more information, see the recent US News and World Reports article here.

Meghan Covert Russell

Comprehensive Anti-Bullying Legislation in New Jersey

New Jersey’s comprehensive Anti-Bullying Bill of Rights goes into effect today. It is one of the toughest anti-bullying laws in the nation, requiring students to spend six class periods learning about bullying. The law also requires action on the part of individual schools, including adopting comprehensive anti-bullying policies, increasing staff training and designating an anti-bullying specialist at each site. However, school administrators note that they have been given no additional resources to meet these requirements.

Although California has yet to enact such comprehensive legislation, the beginning of the school year is a good time for school administrators to review their own district’s anti-bullying policies, provide teachers with training on responding to incidents of bullying and educate student on the dangers of bullying.

For recent coverage on New Jersey's Anti-Bullying Bill of Rights, see the New York Times article here.

Meghan Covert Russell

UPDATE: Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet, But State Court Finds the Law Likely Violates Right to Freedom of Speech

Missouri’s recently enacted “Amy Hestir Student Protection Act” was quickly followed by litigation brought by the Missouri State Teachers Association seeking to prevent the part of the law from going into effect which prohibits teachers from having a “nonwork-related website that allows exclusive access with a current or former student.” The court issued the injunction, finding that educators use social networking extensively and that the “statute would have a chilling effect on speech.” Moreover, the court noted that this law would even prohibit communication between teachers and their own children via a social networking website.

Meghan Covert Russell

Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet

Missouri recently passed the “Amy Hestir Student Protection Act” (the “Act”), which targets sexual misconduct between teachers and students. Among the Act’s many provisions, including imposing liability on a school district who fails to disclose a former employee’s allegations of sexual misconduct to the new employing school district, the Act seeks to curtail online interaction between students and teachers.

The Act specifically prohibits teachers from having a “nonwork-related website that allows exclusive access with a current or former student,” thus prohibiting private interaction on social networking sites such as Facebook (through private messaging and chatting) and Twitter (through direct messaging). However, the Act does not appear to prohibit social networking such as posting on Facebook walls or public group pages, provided the interaction is publicly accessible.

This law is an attempt to address a growing problem of inappropriate contact between students and teachers utilizing technology such as text messaging, emails or social networking. However, commentators have already begun to question the validity of the Missouri law and whether it will withstand review by a court due to constitutional concerns such as free speech and freedom of association.

Although school districts should discourage student and teacher interaction online, California’s free speech laws have not been interpreted in a way that would suggest school districts could prohibit appropriate interaction between students and teachers utilizing technology and social media.

Meghan Covert Russell

Fourth Circuit Upholds Discipline of Student for Online Bullying

Recently, the U.S. Court of Appeals for the Fourth Circuit upheld the discipline of a student for creating a MySpace page targeting a fellow classmate with sexual, vulgar and offensive posts in Kowalski v. Berkeley County Schools. Kara Kowalski ("Kara") was a senior at Musselman High School ("MHS") when she created a MySpace post called "S.A.S.H." which Kara claimed stood for "Students Against Sluts Herpes" and which ridiculed one fellow MHS student in particular. After finding out about the website, MHS officials suspended Kara. Kara claimed that the school district violated her First Amendment right to freedom of speech because the speech did not occur on campus or during a school-related activity, but was strictly private out of school speech.

The Fourth Circuit rejected Kara's claim, finding that she "used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which 'materially and substantially interefer[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the right of others.'" In its decision, the court addressed the realities of the far-reaching impact of the internet saying that her online posts "could reasonably be expected to reach the school or impact the school environment" even though the website was created off-campus.

This is the most recent case regarding student off-campus internet speech, and follows recent decisions by the Second and Third District: Doninger v. Neihoff (2d Cir. 2011)(discipline upheld for student who used vulgar speech to criticize school administration on her personal blog), J.S. v Blue Mountain Sch. Dist. (3d Cir. 2011)(school district violated student's free speech for disciplining student who created parody website of principal), and Layshock v. Hermitage Sch. Dist. (3d Cir. 2011)(same ruling on similar facts). A circuit split has emerged, creating the possibility that the U.S. Supreme Court may weigh in on this line of cases in the future.

Meghan Covert Russell

School Districts Receive 30-day Extension to Verify Students’ Pertussis Booster Shot

Last year, California lawmakers passed AB 354, which requires all students entering grades seven through twelve to show proof that they received a pertussis booster shot by the first day of school. On July 25, 2011, Governor Brown signed SB 614 (Kehoe), which gives school districts an additional 30 days to verify that students have received the pertussis (whooping cough) booster shot.

SB 614 allows students extra time to get their pertussis booster shot, without losing valuable classroom time. It also ensures that school districts are not penalized financially for students who do not comply with the requirement within the first 30 days of the school year, since schools lose funding for every day a student does not attend class.

Meghan Covert Russell

Cyberbullying Law to Include Social Media

On July 8, 2011, Governor Jerry Brown signed into law AB 746 (Campos), which specifically expands current California law regarding bullying to include cyberbullying on social media websites.

Existing law defines bullying as one or more acts of sexual harassment, hate violence, or intentional harassment, threats or intimidation, directed against school district personnel or students, committed by a student or group of students. Current law also provides that bullying, including bullying committed by means of an electronic act, is grounds for suspension or expulsion.

AB 746 specifically defines "electronic act" to include a post on a social network Internet Web site. Clearly, posts on social media websites, such as Facebook and Twitter, are now contained in the definition of bullying under California law.

This clarification to existing law emphasizes the importance of providing a safe learning environment for all students. It is important for school districts to review their policies to ensure that their definition of bullying reflects the most recent changes to the law.

A link to the chaptered bill can be found at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0701-0750/ab_746_bill_20110708_chaptered.pdf

Meghan Covert Russell

Camreta v. Greene

The United States Supreme Court on May 26, 2011, issued its long-awaited ruling in the case of Camreta v. Greene ).(563 U.S. __ (2011).
This case involved an appeal of a Ninth Circuit Court of Appeal decision that was brought by a child protective services officer. The Ninth Circuit decision held that child protective services case workers and law enforcement officials must have a search warrant, parental consent or other exigent circumstances in order to interview a child at school about suspected child abuse. Failure to do so, according to the court, constitutes a violation of the child’s Fourth Amendment rights against unlawful seizure. The Ninth Circuit went on to find, however, that the public officials in the case had qualified immunity from damages, since the law was not well-settled.

On appeal, a divided Supreme Court found that in qualified immunity cases it has the authority to hear an appeal brought by a successful public official, when the lower court has ruled on the underlying constitutional issue and such ruling will have a continuing impact on the manner in which the official performs his duties. However, the Court found that this particular case is moot, since the student on whose behalf the law suit was brought is nearing her 18th birthday and has moved to Florida. Even though the case is moot, which would normally preclude any further consideration, the Court ruled that to leave standing the underlying constitutional determination would deprive the officials of any recourse. Therefore, the Supreme Court vacated the Ninth Circuit’s constitutional analysis regarding the Fourth Amendment obligations in investigations of suspected child abuse. Its ruling does not address the merits of the constitutional analysis, but rather held that it should not be left standing if the officials have no ability to have the issue decided. It is this point on which members of the Court disagreed.

Thus, it remains for another day and another case to find out what requirements, if any, are needed before a child is interviewed at school by child protective services or law enforcement officials regarding child abuse allegations.


Diana D. Halpenny

Doninger v. Niehoff: Second Circuit Allows School District Discipline of Student for Statements Made on Student’s Personal Blog

The United States Court of Appeals for the Second Circuit recently upheld the discipline of a Connecticut high school student who criticized the school administration on her blog for rescheduling a student battle of the bands called “Jamfest.” Avery Doninger, who was at the time the Junior Class Secretary at Lewis S. Mills High School (“LMHS”), posted from her home computer and on her personal blog that was unaffiliated with the school, that “jamfest is cancelled due to douchebags in central office.” School officials barred Doninger from running for Senior Class Secretary, but she was not otherwise disciplined. Additionally, Doninger and other students were prohibited from wearing a t-shirt which read “Team Avery” on the front and “Support LSM Freedom of Speech” on the back at the school election assembly.

Doninger and her mother brought suit in federal court alleging that the school administrators violated her free-speech rights under the First Amendment by (1) prohibiting her from running for Senior Class Secretary and (2) prohibiting her and her supporters from wearing “Team Avery” t-shirts to the school assembly. The Second Circuit granted school officials qualified immunity on both grounds, finding that Doninger’s First Amendment rights in these contexts were not clearly established.

The court found that “it was objectively reasonable for school officials to conclude that Doninger’s behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative.” Further, it was “not clearly established at the time of these events that Doninger had any First Amendment right not to be prohibited from running for Senior Class Secretary because of offensive off-campus speech, at least when such speech pertained to a school event, invited students to read and respond to it by contacting school administrators, and it was reasonably foreseeable ‘that the speech would come on to campus and thus come to the attention of school authorities.’”

We cannot predict whether the federal and state courts in California would render the same decision but this case demonstrates that courts do recognize the ability of schools to discipline students for conduct and/or speech on the internet.

Link to "Doninger v. Niehoff"

Meghan Covert Russell

KMTG Legal Alert

Both Nonindustrial and Industrial Factors Must Be Taken Into Account to Determine Whether Teacher's Psychiatric Injury Was Substantially Caused by Good Faith Personnel Actions

KMTG Legal Alert

Supreme Court Update: California Statute That Exempts Certain California High School Students without Lawful Immigration Status from Paying Nonresident Tuition under Certain Circumstances Is Not Preempted By Federal Law