by Megan Bair | Feb 3, 2016 | Board Policy & Representation, Student Education and Discipline
The Thomas Moore Law Center, on behalf of John and Melissa Wood and their minor daughter, filed suit against the Charles County Public School District Board of Education and the High School Principal and Vice-Principal alleging that the La Plata High School “promoted Islam” by implementing a pro-Muslim lesson plan in its World History class. The Woods claim that the school concealed that it promoted Islam by leaving the topic out of a course syllabus and that students were forced to use a separate textbook for the segment on Islam but were not permitted to take it home. To that end, the Woods allege that their daughter was forced to profess and to write out the Shahada, the Islamic creed, in worksheets and quizzes.
By way of background, the lawsuit alleges that after the Woods learned of the Islamic subject matter being taught, Mr. Woods immediately contacted the school to voice his objections and to obtain an alternative assignment for his daughter. He maintains that the school ultimately refused to allow his daughter to “opt-out” of the assignments and subsequently enforced its “No Trespass” policy on him so that he was no longer permitted to enter onto school premises.
In a January statement, President and Chief Counsel of the Thomas More Law Center Richard Thompson said the school “forced Wood’s daughter to disparage her Christian faith by reciting the Shahada, and acknowledging Mohammed as her spiritual leader.”
“The Woods believe that it is a sin to profess commitment in word or writing to any god other than the Christian God,” the Thomas Moore Society says on its website. “Thus, they object to their daughter being forced to deny the Christian God and to her high school promoting Islam over other religions.”
The Woods seek a court declaration that the Defendants violated their constitutional and statutory rights, a temporary and permanent injunction barring Defendants from endorsing Islam or favoring Islam over Christianity and other religions, and from enforcing the no trespassing order issued against Mr. Wood.
by Giselle Spencer | Sep 25, 2015 | Board Policy & Representation, Construction & Real Estate, General, Labor and Employment, Legislation, School Finance, School Management, Special Education, Student Education and Discipline
As with most other provisions of the budget bill (Am. Sub. HB 64) some significant provisions impacting Ohio school districts go into effect on September 29, 2015, including the following:
- The maximum amount of a scholarship awarded under the Autism or Jon Peterson scholarship programs increases to $27,000 (up from $20,000).
- School districts must offer real property it intends to sell first to a “high performing community school,” then to other community and college preparatory boarding schools located in the district.
- ODE, in conjunction with an Ohio educational service center association and an Ohio gifted children’s association, must complete and submit a feasibility study for establishment of sixteen regional community schools for gifted children.
- The State Board must develop rules waiving any additional coursework requirements for renewal of an educator license for teachers who are consistently high performing.
- The duration of a pupil activity permit for individuals holding a valid educator license is changed from three (3) years to the same number of years as the educator license.
- The State Board of Education will develop a standards based framework for the evaluation of school counselors. Furthermore, all school districts must adopt a counselor evaluation policy by September 30, 2016, that conforms to the framework and will be implemented beginning in the 2016-2017 school year (will include annual evaluations with ratings of accomplished, skilled, developing, and ineffective just like OTES).
- The alternative teacher evaluation framework is revised to decrease SGM to 35%, maintain the performance rating at 50%, and authorize school districts to determine the appropriate measure or combination of measures for the remaining 15%.
- Exemplary community schools may now operate a preschool program for general education students.
- School districts may enroll under interdistrict open enrollment policies an adjacent or other district student who is a preschool child with a disability. ODE will deduct $4,000 from the resident district and pay that same amount to the enrolling district.
- School districts cannot appropriate monies to purchase an assessment developed by PARCC for use as the state elementary or secondary achievement assessments. Additionally testing for the 2015-2016 school year is reduced.
- Safe harbor provisions in effect during the 2014-2015 school year for state report cards are extended by two years.
- School districts may now enter into a contract with a health care provider for the provision of health care services for students.
- The new requirements for issuance of diplomas to home school students and students from non-chartered nonpublic schools are now in effect.
STEM schools can now enroll out-of-state students.
- Schools may install security doors or barricades as part of an emergency management plan.
- The filing date for financial disclosure statements with the Ohio Ethics Commission is May 15 (instead of April 15).
by Jeremy Neff | Dec 22, 2014 | General, Student Education and Discipline
The U.S. Supreme Court recently heard arguments in a case regarding the extent of Constitutional protection of speech on social media. In United States v. Elonis, Elonis wrote graphic lyrics on Facebook which involved killing his estranged wife, law enforcement, and school students. Elonis is the Supreme Court’s first freedom of speech case involving cyber speech.
The issue before the Court is whether “conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten” or whether “it is enough to show that a ‘reasonable person’ would regard the statement as threatening.” Basically, under this “threat” statute, does is matter whether Elonis intended to cause fear or whether a reasonable person would consider his postings a threat?
To get an understanding of the context of this case, the following excerpts provide a brief glimpse into the speech that Elonis posted on Facebook:
“There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.“
“Little agent lady stood so close. Took all the strength I had not to turn the b–ch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin’ from her jugular in the arms of her partner.”
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined. And hell hath no fury like a crazy man in a kindergarten class.”
(In order to avoid complications with school internet filters, this blog post avoids the more profanity-laced postings of Elonis and censors a word that was spelled out in his original posting.)
Elonis argued that, under the applicable statute, the government must prove that the speaker intended the speech to be threatening. His argument centered on the protections offered under the First Amendment. In making this argument, he tried to relate his speech to the speech of famous rap artists, who are typically provided First Amendment protections despite the fact that they often express violent and threatening messages. On the other side, the government argued that the standard under the statute should be a reasonable person standard, requiring only that a reasonable person would consider the speech to be threatening.
The questions from the Supreme Court justices addressed both sides of the issue during oral arguments. Some of their questions included the following:
Justice Ruth Bader Ginsburg asked Elonis’s attorney about how the government would prove whether a particular threat, “in the mind of the threatener[,] was genuine?”
Chief Justice John Roberts questioned the government’s attorney on its interpretation of a “reasonable person.” He used the example of teenagers making a threat while playing a video game and questioned He then expressed concerns over the reasonable person standard being applied consistently with the same speech.
Justice Elena Kagan took a middle ground proposing a “reckless standard,” meaning a prosecutor would need to show only that the speaker should have known there was a substantial probability that the speech would cause fear, even if the speaker did not intent to threaten the listener. This standard would provide more protections for speech than the “reasonable person” standard, but it would not require the government to determine the speaker’s subjective intent.
It will be several weeks or months before the Supreme Court issues its highly anticipated decision in this case. Despite the fact that this case focuses on the interpretation of a specific threat statute, it will give insight into the justice’s views on freedom of speech in the context of online speech. In the absence of any significant appellate case law governing Ohio schools, the Elonis decision will provide some guidance to schools as they determine how to address student cyber speech.
United States v. Elonis, 730 F.3d 321 (3rd Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).
by Erin Wessendorf-Wortman | Jun 25, 2014 | Student Education and Discipline
The U.S. Supreme Court issued an opinion on two cases on June 25, 2014, which prohibits law enforcement from searching the contents of cell phones without warrants. Riley v. California, 573 U.S. _____ (2014); U.S. v. Wurie, 573 U.S. _____ (2014). In these cases, police officers did not have probable cause to search the individuals’ cell phones, but instead relied on the exception law enforcement has of a search incident a lawful arrest. This exception allows police officers to conduct a search of a person and area within his/her immediate control during an arrest for the safety and protection of law enforcement personnel and for the preservation of evidence.
However, when considering whether cell phones could be searched without a warrant utilizing the exception of a search incident to a lawful arrest, the Court focused on the prevalence of cell phones in modern society and the vast quantities of personal information stored on cell phones. The Court even indicated that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The Court found that the vast amount of personal information stored on cell phones, and the inherent privacy of that personal information, outweighed any of the government’s concerns for police officer safety or protection of data. It reasoned that digital data on a cell phone could not itself be used as a weapon to harm an arresting police officer or to effectuate the escape of the arrestee. Further, the Court indicated that any concern of data destruction, either through remote wiping or data encryption, could be alleviated through a police department’s own means of data recovery once a warrant was obtained. In the end, the Court indicated while “[p]rivacy comes at a cost”, cell phones are still capable of being searched, once warrants are appropriately acquired.
While these cases only apply to law enforcement officers, it will have an impact in school districts looking to involve their school resource officers in searches of students’ cell phones. School resource officers should not be searching students’ phones without warrants given this ruling from the U.S. Supreme Court. However, these cases do not impact how school administrators conduct investigations and searches related to school discipline. School districts are still held to a reasonableness standard when conducting searches of students: the search must be justified at inception and reasonable in scope.
If a school administrator believes that a student has violated school policy(ies) through utilizing his/her cell phone while on school campus, the school administrator may search the student’s cell phone for evidence of the violations. However, school administrators must use caution when searching a student’s phone. For example, a student simply possessing a cell phone on school property in violation of Board policy will not permit an administrator to search the student’s cell phone. If a student has a cell phone out in his/her lap during a test, this may permit an administrator to search the student’s phone for evidence of cheating in appropriate and reasonable areas of the phone. If evidence of a criminal violation is believed to be found on a student’s cell phone during an administrator’s search, the evidence should be turned over to the school resource officer after the search has been conducted.
by Jeremy Neff | Jun 2, 2014 | Board Policy & Representation, Student Education and Discipline
As school children prepare for summer break, school administrators begin turning their attention to long-term projects that are deferred during the regular school year. Consider adding a review of your student disciplinary code to your summer to do list.
In January, the Office for Civil Rights (OCR) and the Department of Justice issued joint guidance regarding discipline and racial discrimination. Following that guidance, various disability advocacy groups pointed to disparities in discipline of disabled students as another problem area.
While intentional discrimination in schools is rare, disparate impact is almost universal. In the vast majority of school districts a greater percentage of expulsions and suspensions are imposed on minority and disabled students (relative to their percentage of the student body). OCR investigations related to this are on the rise, and a common issue being identified is that vague disciplinary codes make it hard to do apples-to-apples comparisons of discipline outcomes.
For example, Student A and Student B fight each other, but Student A gets 5 days suspension while Student B is suspended 10 days with a recommendation for expulsion. Both violated the same rule that prohibits “fighting.” On paper this looks problematic. Only by reviewing administrator narratives, or by OCR coming onsite to conduct interviews, does the explanation become clear: Student A stopped fighting immediately when directed by an administrator, while Student B cursed at and struck an administrator.
Consider refining your code of conduct to more precisely account for common scenarios such as the above. For example, “fighting” might be broken up into “fighting, ceased immediately upon directive” and “fighting, failed to cease immediately upon directive.” Likewise, “disruption” might be broken up into “disruption, verbal outburst,” “disruption, physical outburst,” etc. Upon inspection of your code of conduct and discipline records you will likely identify other rules that are too broad to capture important details of misconduct.
By making your code of conduct more precise, you will make it easier to explain differences in disciplinary outcomes. This is especially important when OCR is investigating disparate impact claims. This is a case where an ounce of prevention is worth much more than a pound of cure.
Please contact an ERF attorney for assistance with reviewing student codes of conduct and other disciplinary matters.
by Jeremy Neff | Dec 30, 2013 | Special Education, Student Education and Discipline
It is probably not high on your list of New Year’s Resolution priorities, but special education staff at Ohio public schools should add this one: Send even more prior written notice forms.
For over a year, the Ohio Department of Education (ODE) had been floating the idea of changing the Individuals with Disabilities Education Act (IDEA) requirements regarding prior written notice (PWN) when parents agree with the Individualized Education Program (IEP) developed during an annual review meeting and the IEP involves a change in placement. State regulations in effect over the past several years did not require formal PWN on the PR-01 form in this circumstance. Rather, the IEP document itself served as PWN. On December 20, 2013 ODE announced an immediate change requiring PWN on the PR-01 form to be sent for all IEPs that involve a change of placement (including those that have parental consent).
Presumably the thinking behind the prior interpretation was that there is no need to send a notice to a parent informing her that the IEP she just agreed to is going to be implemented. It appears that the change in interpretation is to align with federal regulations that require PWN whenever a change in placement is proposed. There is an ongoing review of Ohio’s IDEA regulations, and once finalized the new regulations will incorporate this change. However, ODE has been clear that it will immediately be enforcing the change. Whether slight changes in IEP services constitute a change of placement is not always clear. Given this new requirement, it is best to err on the side of caution by sending too many PR-01 instead of too few.
ERF encourages school districts to take steps to minimize potential misunderstandings regarding PWN. The PR-01 form can be intimidating, and some parents mistakenly think it means a district is attempting to harass or provoke them. Some of the potential fallout of the decision to require even more PR-01 can be avoided by discussing PWN, the PR-01 form, and when they are required with parents prior to needing to use them in relation to an IEP. For example, a district could make it a practice to show a blank PR-01 form to a parent at the time a child is initially identified and to explain the purpose and requirements for the use of the form.
We have often said that PWN cannot be sent too often. With this new interpretation ODE has brought new meaning to that advice. Please contact a member of ERF’s Special Education Team with questions about this new requirement.
