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
Tuesday, August 9, 2011
Wednesday, August 3, 2011
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
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
Tuesday, July 26, 2011
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
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
Tuesday, July 12, 2011
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
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
Thursday, June 2, 2011
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
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
Tuesday, May 3, 2011
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
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
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