by Giselle Spencer | Mar 28, 2019 | General, School Management
A new law may impact the obligations of schools, School Resource Officers, and law enforcement agencies, in general, in responding to a request for dash cam or body cam recordings. HB 425, which added new exceptions to the R.C. 149.43 definition of public records, becomes law on April 8, 2019. Under this new provision, portions of a body worn camera (BWC) or dashboard recording are not included in the definition of a public record. Those exceptions include:
•The image or identity of a child, or information that could lead to the identification of a child, who is the primary subject of recording, if police know or have reason to know the subject is a child.
•The death of a person or images of a dead body, unless the death was caused by a police officer or if the executor or administrator of the deceased’s estate grants consent to production of the images. Similarly, images of grievous bodily injury or acts of severe violence resulting in severe physical harm are excluded, unless the same applies.
•Images of the death of a police officer or first responder in the course of their duties, unless the executor or administrator of the deceased’s estate gives consent.
•Depictions of acts of severe violence resulting in severe physical harm to a police officer or first responder in the course of their duties, unless consent is obtained.
•Images of a person’s nude body unless consent is obtained.
•Protected health information or other identifying information including the identity of a person in a health care facility who is not the subject of a law enforcement encounter.
•Any information that could identify a victim of a sex offense, menacing by stalking or domestic violence.
Further exceptions are:
•Information that could identify an informant and endanger the safety or property of such information.
•Personal information of those not arrested, charged, given a written warning or cited by law enforcement.
•Proprietary police contingency plans or tactics for crime prevention, public order and safety.
•Personal conversations unrelated to work of law enforcement and employees, or conversation between police officer and citizen not concerning law enforcement activities.
•The interior of a residence or the interior of business not open to the public, unless the residence is the location of an adversarial encounter or use of force by law enforcement.
If a request for body cam footage is denied pursuant to these provisions, the law now allows the requester to file either a mandamus action in civil court or a complaint in court of claims. To receive the requested relief, there must be clear and convincing evidence that the public interest in recording outweighs the privacy interests and other interests asserted as reasons to deny release.
It is unknown how, or if, this new law will impact the case of Cincinnati Enquirer v. City of Cincinnati Police Department set for oral argument before the Ohio Supreme Court on May 19, 2019. Cincinnati Enquirer stems from a plainclothes police response to a call for adult children to leave the home of a parent, resulting in the use of force and a call for additional police reinforcements at the home. As expected, the responding officers were equipped with BWCs. The Cincinnati Enquirer requested the BWC footage and the request was denied based on the claim that the images constituted a Confidential Law Enforcement Investigatory Record (CLEIR). A CLEIR is not a public record if it pertains to a “law enforcement matter” involving a specific suspicion of misconduct and the investigating agency has the authority to enforce the law. The Cincinnati Police Department further claimed that disclosure of the footage would compromise the prosecution of the defendants (two adults in the home) by revealing work product. Nonetheless, the footage was disclosed after defendants plead guilty. If reviewed in conjunction with this new legislation, the court may provide further directive on the relation between BWC or dash cam recordings and the broader personal information revealed by such footage.
by Giselle Spencer | Mar 23, 2018 | Board Policy & Representation
On March 16, the Ohio Attorney General released Opinion No. 2018-006, which again addresses board member interests in public contracts. In this instance, a member of a board of education leased a building through a limited liability company to the school district for which the part-owner served as a member of a board of education. This action was determined to violate R.C. 3313.33, which provides that no member of the board shall have, directly or indirectly, any pecuniary interest in any contract of the board. When such a condition arises, the board member must resign their position with the board of education or divest themselves of the contract.
In such situations, the lease can be determined void, voidable, or unenforceable at the reasonable discretion of the board of education. The OAG stated that a board of education may reasonably conclude that the lease continues to be valid and enforceable after the part-owner of the limited liability company takes office as a member of the board of education if several conditions are met:
- At the time that the lease was executed, the lease did not constitute a violation of 3313.33 for any member serving on the board of education at execution;
- After the part-owner takes office as a member of the board of education, the board of education takes no action to alter the terms of the lease that was executed before the part-owner took office.
- The board member divests himself or herself of the prohibited interest in the lease within a reasonable period of time after taking office.
For condition 3, the OAG opined that the person must act “immediately” to divest himself from the contract as part-owner if he wishes to remain a board of education member. Moreover, going forward, the board cannot enter into a new lease with the limited liability company after the current lease expires as long as the board member has an impermissible pecuniary interest in the lease.
The OAG also found that this circumstance could fall within the criminal provision in R.C. 2921.42, which makes it a criminal act for a public official to have an unlawful interest in a public contract. The exceptions include the following:
- Contracts for necessary supplies or services
- Where supplies or services that are unobtainable elsewhere or are being furnished as part of a continuing course of business established prior to the officials association with the public entity
- The treatment accorded the public entity is preferential to or the same as to other customers
- The entire transaction was conducted at arm’s length, with knowledge by the public agency and where the official takes no part in deliberations or discussions about the contract.
In this case, none of the exceptions applied.
The full opinion is available here.
by Giselle Spencer | Mar 13, 2018 | Student Education and Discipline
In 1965, a group of siblings and a family friend in Des Moines, Iowa, decided to wear black armbands to school in protest of the Vietnam War. When the principals of their schools became aware of the plan, they developed a policy prohibiting such protests – a policy that the students chose to ignore. As a result, Mary Beth Tinker, her brother, and a high school friend were suspended from school. This is the backdrop of one of the most famous student free-speech cases in American history: Tinker v. Des Moines Independent Comm. Sch. Dist., 393 U.S. 509 (1969). Indeed, most school administrators can quote a prominent observation of the Supreme Court as it relates to speech: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In light of the current national movement of planned student protests around the country, this case provides important considerations on the authority of school officials to censor student expression. While the High Court held that expression in certain cases may be suppressed, it cautioned school officials that they must be able to show that their action “was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint.”
As student protests on a national level gain steam and momentum, school officials must plan a response that is viewpoint neutral and measured in light of potential school rule infractions. Even when a student’s viewpoint is not unpopular, districts should consider imposing appropriate discipline if only to neutralize future viewpoint discrimination claims from students who wish to engage in speech or leave campus for a less popular reason. When student speech is coupled with other student expression such as walking out of class in protest of gun violence in schools, school officials maintain their obligation to adhere to student attendance laws, as any time away from school is time away from instruction and may result in truancy or disciplinary consequences. However, districts must remain aware that they can no longer suspend students for attendance violations. Disciplinary consequences are best reserved for the act of cutting class or causing substantial disruption to the educational environment.
by Giselle Spencer | Mar 29, 2017 | Special Education
Endrew F. v. Douglas County School District
On March 22 the U.S. Supreme Court published an opinion in a significant special education case. Issuing out of the Tenth Circuit Court of Appeals in Colorado, Endrew v. Douglas poses the question of what level of educational benefit public schools must provide to students with disabilities in order to satisfy the requirement of a free appropriate public education (FAPE) according to the Individuals with Disabilities Education Act (IDEA).
The Supreme Court last heard arguments on this topic in the 1982 case Board of Education v. Rowley, in which the Court determined that an individualized education program (IEP) must be “reasonably calculated to enable the child to receive educational benefits.” Since that time, federal courts across the country have issued differing opinions on the level of educational benefits that students must receive, with the majority of circuits requiring “merely more than de minimis” or “some benefit” (including the Tenth Circuit, where this case originated from). Only three circuits (one of which is the Sixth Circuit, which includes Ohio) have held to a higher standard – “meaningful benefit.”
The Supreme Court’s March 22 opinion expands upon the FAPE standard set forth in Rowley:
To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated
to enable a child to make progress appropriate in light of the child’s circumstances.
The U.S. Department of Education had suggested in a court brief that school districts offer a program “aimed at significant educational progress in light of the child’s circumstances.” While the Supreme Court adopted “appropriate” instead of “significant” as the standard, its unanimous decision confirms that a standard requiring nothing more than a minimal educational benefit is too low.
The Court’s holding does not overrule the Rowley decision. Instead, in clearly rejecting other, higher standards, and declining the low standard adopted by the lower court, the High Court underscored Rowley’s emphasis on individualized benefits based on each child’s potential progress. Although the family sought imposition of a standard that was “substantially equal to the opportunities afforded children without disabilities,” such as attaining self-sufficiency and contributing to society in equal ways, the Court rejected that idea as “entirely unworkable” and noted that it would be “plainly at odds” with Rowley. The 1982 Rowley case also considered but rejected similar language regarding reaching the maximum potential of each student. Higher standards such as this would significantly increase costs to districts for the more than six million students with disabilities.
Although “progress appropriate in light of the child’s circumstances” is worded differently from the Sixth Circuit’s standard of a “meaningful benefit,” in practice it should be similar. As our circuit has held the highest standard throughout the country, districts that have held to this standard in their IEPs will likely not see a significant change in their IEPs and services. The Supreme Court’s decision may have a greater effect on special education programs in circuits whose standard has previously been lower, such as the Tenth Circuit’s standard of merely more than the minimum.
Even with the Supreme Court’s decision, this is not the end of the saga for Endrew F. Now the case goes back to the Tenth Circuit Court of Appeals to issue a ruling consistent with the Supreme Court’s decision to reject the previous, lower standard that the circuit had used.
by Giselle Spencer | Jul 1, 2016 | Student Education and Discipline
A U.S. District Court in Massachusetts has allowed a legal claim against city and school administrators for peer-on-peer sexual harassment under Title IX. Several of the plaintiff’s other claims were dismissed, but the Title IX harassment claim was allowed to proceed. The case will be pursued in the U.S. District Court.
Title IX of the Education Amendments of 1972 prohibits sex discrimination and harassment in education:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
In Harrington v. City of Attleboro, student Noelle Harrington alleges years of sexual harassment from school bullies and, along with her mother, is suing the school district. Harrington attended Brennan Middle School in Attleboro from 2008 to 2010, where she first experienced harassment from a student who repeatedly called Noelle offensive names related to her sex and to sexual stereotyping. Two other students joined in the name calling as well. The bullying escalated to a physical assault, resulting in bruising, a sprained ankle, and a fractured wrist. The Harringtons had notified school principals, assistant principals, and the school psychologist and were told that the problems would be dealt with. They also contacted the Attleboro Police Department, who said that this was a school issue and did not intervene.
The name calling and comments continued when Noelle went to Attleboro High School in 2010. As a matter of school policy, documentation of the boys’ conduct was not transferred from the middle school. Noelle was placed in classrooms with the same boys, and the harassment continued by them and other students as well. In January 2012 the school prepared a “Safety Plan” for Noelle, giving her the right to report harassment to administrators, to access the nurse “in times of stress,” and to leave class early in order to avoid the students in the hallways. In February 2012, the student who had physically assaulted Noelle in middle school followed her from the library to her home. When her mother told a school administrator, she was told that the school would not address this conduct because it occurred outside of school and off the school property. Also that month students shined a laser pointer into Noelle’s eyes. She went to the nurse, who contacted Noelle’s mother. The Harringtons again contacted the police department and were told that the school police officer would have to handle the complaint. The Harringtons allege that the school police officer failed to respond to their complaint. The Harringtons then informed school administrators that they wanted to transfer Noelle to another school but allege that the school did not assist in placing Noelle elsewhere. When Noelle posted on Facebook about suicide, her mother consulted a crisis team, who instructed Noelle not to return to the high school. Noelle was registered at a treatment center for psychotherapeutic care. Her mother withdrew her from school on March 1, 2012.
Harrington v. City of Attleboro is a Title IX claim on the basis of sexual harassment – which includes sexual stereotyping – in education. To state a claim under Title IX for student-on-student sexual harassment, a plaintiff must show the following elements:
- He or she was subject to “severe, pervasive, and objectively offensive” sexual harassment by a peer.
- The harassment caused the plaintiff to be deprived of educational opportunities or benefits.
- The funding recipient (the school) knew of the harassment.
- The harassment took place in school programming or activities.
- The school was deliberately indifferent to the harassment such that the response, or lack of a response, was unreasonable given the nature of the known circumstances.
In allowing this claim to proceed, the US District Court acknowledges that the Harringtons have a plausible Title IX claim. Allegations for sex-based discrimination must show that the harassment was because of the person’s sex. The court noted that the students’ conduct was severe, not just “tinged with offensive sexual connotations,” and appears to be based on sexual stereotyping, such as appearance, mannerisms, and sexual preference.
The standard of deliberate indifference is stringent and requires more than allegations that a school should have done more. However, the First Circuit has suggested that a school’s failure to take additional measures after its initial measures were ineffective might constitute deliberate indifference. In Harrington v. City of Attleboro, the district court allowed this Title IX claim because the Harringtons’ allegations suggest that the school “failed to take additional reasonable measures after it learned that its initial remedies were ineffective.”
What This Means to Your District
The standard of deliberate indifference is not simply a standard of doing nothing to prevent discrimination or harassment. A school may take action yet the action not be found reasonable given the known circumstances. As the known circumstances increase and intensify, the action the school takes should increase and intensify accordingly. Ennis Britton attorneys are available for consultation with Title IX issues as with other school-related issues.
Harrington v. City of Attleboro, — F.Supp.3d –, (D. Mass. 2016) 2016 WL 1065804
