Court Finds Coach Retweeting Book Passage was Fair Use

by | May 22, 2023 | General, Legislation, School Management, Student Education and Discipline

Bell v. The Milwaukee Bd. of Sch. Dirs., 123 LRP 2649 (E.D. Wis. 12/21/22).

The Eastern District of Wisconsin recently dismissed an author’s copyright infringement claim against a high school basketball coach and school district finding in favor of the school district’s fair use defense.

Dr. Keith Bell, author of the book “Winning isn’t normal” sued a high school basketball coach and school district after the coach retweeted a famous excerpt from the book. Bell alleged that not only did the coach violate the copyright of the book as a whole when he retweeted the passage, but separately violated the copyright of the famous “Winning isn’t normal” passage from within the book as well.

The school district asserted that the retweet was fair use under the Copyright Act of 1976. Fair use, which is a defense to copyright infringement claims, allows for the use of copyrighted work, under certain conditions, without permission of the copyright owner. Under the Copyright Act, a court must consider four factors when applying the fair use doctrine: (1) the purpose and character of the use, including whether it’s for commercial or nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for the copyrighted work.

The court found that while the coach’s retweet copied the entirety of a “somewhat creative passage,” his action was balanced against the fact that the passage was freely available on the internet and the author’s website. Additionally, the court noted that while the retweeted passage was the “heart” of the book, the copied passage was a relatively small portion of the book and was entirely noncommercial. Furthermore, the court found that the retweet did no damage to the author’s financial position, and that the retweet may even help the author’s position by increasing the public’s interest in the book as a whole. Thus, the District Court held that the coach’s retweet of the “Winning isn’t normal” passage was fair use and the author’s claim had to be dismissed.

What does this mean for your district? To avoid copyright infringement claims, districts should train their staff on how to avoid using or sharing copyrighted material without permission. With the rise of school districts and district employees using social media, school districts should ensure that any social media training should include what may and may not be shared to avoid copyright infringement claims. Fair use is not as simple as some believe in terms of educational use and so while the coach’s actions were vindicated here, caution is warranted.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The 9th Circuit Rules On Graduation Dress Code

The 9th Circuit Rules On Graduation Dress Code

by | May 22, 2023 | General, Legislation, School Management, Student Education and Discipline

Waln v. Dysart Sch. Dist., 54 F.4th 1152 (9th Cir. 2022).

In 2019, Dysart School District prohibited a student from decorating her graduation cap. The school district had a graduation policy that prohibited students from decorating their graduation caps; however, the student had requested a religious exemption. The student, a member of the Sisseton Wahpeton Oyate tribe of the Sioux Nation, wanted to decorate her cap with an eagle feather that had been blessed in a religious ceremony and was to be worn “in times of great honor.” The district, however, rejected her request. When the student showed up to graduation with the decorated cap, school officials did not let her inside the venue. However, school officials permitted other students into the venue who had decorated caps that also violated the dress code. For example, the district allowed one student who decorated their cap with a breast cancer sticker inside the venue.

The student subsequently brought claims against the district, alleging that the district violated her freedom of speech and religion. Specifically, the student claimed that prohibiting her from wearing the non-secular decorated graduation cap, while other secular decorated caps were permitted, violated the free exercise and speech clause of the United States Constitution.

The Ninth Circuit first analyzed the free exercise claim. The court noted that if the district did not enforce the policy to exclude a student’s secular message, such as the breast cancer sticker, then, without some appropriate justification, the district could not enforce its policy against the plaintiff. The court thus held that because the school district did not apply the policy “to the same degree” towards all students but rather executed the policy in a “selective manner,” the district potentially violated the free exercise clause of the U.S. Constitution.

The Ninth Circuit then turned to the free speech claim. The court emphasized that school districts may not engage in viewpoint discrimination, which occurs when the government restricts speech on the basis of the specific “ideology or the opinion or perspective of the speaker.” The court ultimately found that the school’s general policy of prohibiting decorated caps was not viewpoint discrimination. The court held that on its face, the policy is viewpoint neutral because “it prohibits all speech from all students on all graduation caps at the ceremony.” However, even if a policy is viewpoint neutral on its face, it can still violate the Constitution when not applied uniformly. Because the school district, in this case, applied the viewpoint neutral policy in a selective way, the school did infringe on the student’s freedom of speech.

Thus, the Ninth Circuit ultimately determined that the school district’s actions were likely a violation of the free exercise and speech clauses of the Constitution, holding that “general applicability requires, among other things, that the laws be enforced evenhandedly.” The case was remanded to the trial court.

What does this mean for your district? There remains support for the conclusion that a court would find that a policy that bans all decorations from all caps is viewpoint neutral and thus not an infringement on students’ first amendment rights. However, if your district intends to have such a policy, officials should be trained to apply the policy evenhandedly in order to refrain from violating a student’s rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

Court of Appeals Holds that a Township’s Email Lists are Not Public Records

by | Apr 17, 2023 | General, Legislation, School Management, Special Education

Hicks v. Union Twp., 2023-Ohio-874

The Twelfth District Court of Appeals (Brown, Butler, Clermont, Clinton, Fayette, Madison, Preble, Warren) recently ruled in a public records case that a township’s email and mail lists, used by the township for the publication of newsletters and other communications, were not public records because the lists did not “document the activities or operations of the office.”

The requester asked for the “the full email list used for township newsletters” and “the full mail list used for township newsletters.” After several exchanges between the requester and the township, during which the requester was repeatedly told that the lists were not public records and would not be produced, the requester filed suit, pro se.

The requester argued, in essence, that the township uses the lists to and keep citizens informed of the activities of the office.  Thus, according to the requester, the lists document the functions and activities of the township.

The Court of Claims appointed a special master and the case was unsuccessfully referred to mediation.

The township administrator testified via affidavit that a third-party vendor facilitates the mailing of the newsletter and the mailing lists for the newsletter. The township also provides an opportunity for interested persons to subscribe and receive the newsletter electronically. On the township website, subscribers are asked to enter their names and email addresses to receive the newsletter.  The township maintains the list, but it is used only for the administrative purpose of issuing the electronic newsletter.

The requester submitted an affidavit of a former township administrator, but it largely focused on the content and development of the newsletter over time. The affidavit confirmed how the lists were maintained.  Based on the affidavit, the requester argued that the “requested information is essential to the ability of Requester to understand and form a critique of a specific function of the government, staffed and paid for with tax dollars.” The requester indicated he desired to obtain the lists to “evaluate the conduct of the newsletter program.” For example, the requester indicated he wished to learn to whom the newsletter was being sent  (residences and businesses, or only residences), if there were any citizens being omitted, if there was an overlap of individuals receiving the newsletter by mail and email, how “well-saturated” the email list was, and whether the emails included “valid or bot accounts.”

The Court of Appeals reasoned that while the lists did constitute “documents, devices or items” which are “kept” by the Township, the third prong of the analysis, (i.e., that the record document the “organization, functions, policies, decisions, procedures, operations, or other activities” of the public office) was not met. The Court looked to precedents which held that simply because an item is received and kept by a public office does not transform it into a record.  Home addresses have been analyzed in other contexts, such as requests for personnel files.  The Ohio Supreme Court has held that “at best, home addresses represent contact information used as a matter of administrative convenience,” and that they “reveal little or nothing about the employing agencies or their activities.” 

 Furthermore, the Court found that the recipients of the newsletters, (who could be anyone, not just citizens) were not part of the decision-making process surrounding the newsletter and they do not assist the township in the performance of its functions.  The Court applied essentially the same analysis to the hard copy mailing list.

What this Means for Your District

Not every record in the possession of the school district is a public record. The document must meet all three parts of the test in order to be a public record. Careful analysis is always required however. It would not be wise to categorically deny a request for a distribution list, for example, without first considering the nature of the list, what it is used for, how the persons on the list are placed there and for what purpose. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fourth Round of Direct Certification with Medicaid States Selected

Fourth Round of Direct Certification with Medicaid States Selected

by | Apr 17, 2023 | General, Legislation, School Management, Special Education

The United States Department of Agriculture (USDA) recently announced that 14 new states, including Ohio, have been selected to participate in the Direct Certification with Medicaid Demonstration Projects for the 2023-2024 school year. With the 2023-2024 addition, a total of 39 states are now eligible to participate. The demonstration of Direct Certification with Medicaid for Free and Reduced-Price Meals (DCM-F/PR) authorizes states and school districts to use information from Medicaid data to identify eligible students to receive free or reduced lunches. The program allows students to be certified for free or reduced meals without household applications. In the 2019-2020 school year more than 1.2 million students were certified for free meals, and 240,000 students were certified for reduced-price meals.

To learn more about the program visit the USDA website.

What this means for your District: School districts will want to be on the watch for information from the USDA in how the Medicaid system will “talk” to the USDA’s system for reporting students who are eligible for free or reduced-price meals.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

School Funding Reform at the Center of Competing State Budget Plans

by | Jun 4, 2021 | General, Legislation

In early February, the Ohio House introduced HB 1. This bill, often referred to as the Cupp-Patterson Plan, proposes a significant overhaul of the State’s school funding system. Chief among its objectives is developing a per-pupil funding amount that reflects actual costs, moving away from caps and guarantees, committing to a longer-term plan, and accounting for localized needs. The plan was developed during the prior session of the General Assembly and seemed poised for serious action before COVID-19 disrupted the legislative agenda.

HB 1 has enjoyed broad support among education groups, including disparate groups such as the Ohio School Boards Association and the Ohio Education Association. After it fizzled in the last session, it was widely expected to be a major part of budget debates during the first year of the current session. Not surprisingly, under Speaker Bob Cupp (the “Cupp” of “Cupp-Patterson”) the House passed its budget proposal, HB 110, with HB 1 largely incorporated. The 70-27 vote on April 21 was somewhat bipartisan with 12 Democrats joining the Yeas and 6 Republicans joining the Nays.

Like the House, the Senate is dominated by the Republican Party, but this has not resulted in easy passage of HB 110 and Speaker Cupp’s school funding reform plan. The school funding plan under consideration in the Senate moves away from the six year phase-in of the House plan, and instead provides initially larger increases in per-pupil expenditures with no commitment to longer-term increases. Notably, the Senate plan abandons the highly localized per pupil funding calculations of HB 1, and instead determines a single base cost to apply throughout the state.

Statements from leading Senators indicate a concern that the House plan would lead to unsustainable funding increases. Of particular concern to these Senators is the use of teacher salary increases as part of the calculation in base costs. They argue that increases in pay even since development of the formula mean that costs have already increases by hundreds of millions of dollars. Supporters of the House plan point to a dramatically improved state economy and tax revenues well above estimates as reasons to support an increased commitment to K-12 education. Instead, the Senate budget plan currently proposes a 5% reduction in income taxes.

Both the House and Senate budget plans move to a direct funding system for various school choice programs. This would eliminate the current process that often requires funding to be directed to school districts only to be deducted when a family uses a voucher or enrolls in a charter school. The Senate plan proposes a significant increase in voucher funding and the elimination of some restrictions on the opening of charter schools.

What this means for your District:

Joint testimony from the Ohio School Boards Association, Ohio Association of School Business Officials, and the Buckeye Association of School Administrators has urged adoption of the House plan as part of HB 110. Among other reasons, they point to the longer-term commitments and growth in K-12 funding offered by the House plan. They also point to the extensive efforts to gather stakeholder input to develop the original Cupp-Patterson Plan. Finally, they identify the process of developing an actual input/cost-based approach to identifying appropriate per-pupil funding as critical.

The current state budget expires at the end of June. In most budget years this means the General Assembly passes the new budget during a late night session on or about June 30. However, it must be noted that the current state budget was not passed until nearly two weeks into July 2019 (after a temporary measure was passed to keep the government open). The time is now to share your views on the school funding reform plan, school choice funding, and other matters relevant to K-12 education. Current legislative activity is in the Senate. It is anticipated that in late June there will be a flurry of activity in both chambers as differences between House and Senate budget bills are resolved.

U.S. Supreme Court: Title VII Prohibits Termination Based on Sexual Orientation

by | Jun 18, 2020 | General, Labor and Employment, Legislation

On June 15, 2020, in the consolidated matters of Bostock v. Clayton County, Georgia, Altitude Express v. Zarda, and R.G.& G.R. Harris Funeral Homes v. EEOC, et al, the United States Supreme Court ruled in a 6-3 decision that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. Shortly afterward, Clayton County terminated his employment. In Altitude Express, Zarda was fired days after mentioning he was gay. In Harris, an employee was fired after the employee informed the employer that the employee planned to live and work full time as a woman. The U.S. Supreme Court held that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the Court interpreted it to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex—the very practice Title VII prohibits in all manifestations. While it was argued that Title VII was never intended to be read with such a broad brushstroke, the Court found that the use of the word sex was unambiguous and supported its holding.