8th Circuit holds student racist/sexist blog speech unlikely to be protected

Posted on by

Overturning a preliminary injunction issued by a lower court, the U.S. Court of Appeals for the Eighth Circuit handed down a ruling this week that a blog created by Missouri high school students containing both sexist and racist speech was unlikely to be First Amendment protected speech.

Lee Summit North High School

Lee Summit North High School
(Credit: edcampkc.wikispaces.com)

The three judge panel unanimously overturned a district’s court’s preliminary injunction which had allowed the Lee’s Summit North High School student creators of a blog to return to school pending a court decision on whether the speech on the blog was protected.

In the case, two twin brothers, Sean and Steven Wilson, created a website called NorthPress, part of which contained a blog. According to the Wilson brothers, the purpose of the site was to “discuss, satirize, and ‘vent’ about events at Lee’s Summit North.” Because they used a Dutch domain site, U.S. users were prevented from finding the website using a search engine. However, any person could access the website provided they knew the website address: NorthPress was not password protected.

During December, 2011, the twins added posts to the NorthPress blog which included a variety of sexist and racist content. The sexist comments went to far as to mention a fellow female student by name. The racist posts discussed various altercations that had taken place at the school and mocked black students.In addition, a third unnamed student added another racist post.

The exact degree to which the speech was off-campus was a matter of dispute in the case. It was shown during the case that one of the Wilson twins used a school computer for the purpose of uploading computer files necessary for the creation of their website. District records also show that the website was accessed two other days, but District was unable to prove who accessed the site or whether they merely looked at the site or contributed files to it.

In additional testimony, the Wilsons stated that they only told five or six other students about the site, but by December 16, 2011, the student body was definitely aware of the site’s existence, and school administrators became aware of it that same day. Following a brief investigation, the school suspended the two boys for ten days and referred them for expulsion. There ensued a hearing, then an appeal by the Wilsons, then a second hearing at the conclusion of which the Wilsons were suspended from Lee Summit North but were allowed to attend Summit Ridge Academy. The Wilsons filed suit seeking a preliminary injunction in order to lift the suspensions.

The District Court quickly conducted a preliminary injunction hearing. In the trial, the Wilsons argued that their website was satirical rather serious and that they were not racist. Further, they argued that their website had not caused disruption at the school. The boys testified that December 16, was pretty much like every other day at Lee Summit North. Their additional testimony related to the fact that attending Summit Ridge Academy was deny them the opportunity to possibly attain a band scholarship and also to take honors level classes.

During this hearing the District argued that student body wide discovery of the site had indeed caused substantial disruption. District argued that returning the boys to Lee Summit North would cause further disruption at the site and could endanger the boys’ safety.

A federal district judge ruled in the boys’ favor, holding that while the speech may not be protected, the boys were suffering irreparable harm by not being able to attend their regular school. Based on the March ruling, the boys were allowed to return to Lee Summit North.

The school district immediately appealed the lower court’s ruling. On October 17, 2012, the 8th Circuit issued its opinion in  S.J.W. v. Lee’s Summit R-7 School District, finding for the district and overturning the original preliminary injunction.

The court’s decision is in line with a number of Federal Courts of Appeals holdings addressing student off-campus speech which creates a campus disruption. Applying the Tinker standard, the court reasoned that here, while it was contested whether or not the speech occurred on campus or not, the speech had as its target the students of Lee Summit North. This, coupled with the fact that the speech had been found to have been responsible for causing a substantial campus disruption, meant the students’ speech was unlikely to be protected under the First Amendment, and thus the students’ discipline should remain in place pending an actual hearing to decide the issue.

In addressing the issue of irreparable harm to the twins, the 8th Circuit held that the school the boys were to attend was accredited and would allow the twins to graduate on time. Further, on the issue of college scholarships, the Court held that potential scholarships were too speculative in nature to constitute harm to the boys.

The case brought up another novel legal issue which the Court was able to dispatch without ruling on its merits. Attorneys for the twins argued that they could succeed on the merits of their case under the Communications Decency Act (CDA) which states in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The gist of their argument was that as publishers of NorthPress,the boys were merely providers of a computer services, NorthPress, and they cannot be held responsible for the content of the third student’s racist post, which they contended during the case that if there was a disruption, it was due to that post, not theirs.

The three judge panel made no determination as to whether the CDA applied here, since the point was moot. The lower court had found that the twin’s post had been disruptive to the school, not just the single post of the third student. This being true, the CDA would not apply.

In the end, the decision of what is to happen to the boys pending a final decision on their case was left to the lower court.

OCR received its greatest yet number of disability complaints

Posted on by

The federal Office of Civil Rights (OCR) has just released a new report, Disability Rights Enforcement Highlights, and it reveals among other interesting findings that during the three year period from 2009-2011, OCR received its greatest yet number of disability complaints. From 2009-2011, OCR received over 11,700 disability complaints, which comprised 55% of the total overall complaints received. The other 45% of the claims received were related to other areas of OCR enforcement in areas such as national origin, race, age, and sex.

 

Disability Rights Enforcement Highlights

Based on the report, it is clear that the vast majority of disability complaints were in the area of FAPE, Free and Appropriate Public Education. FAPE questions concern whether a district has offered a special needs child an educational program from which the student can obtain at least some minimal benefit. If not, the student has been denied FAPE. Of the 11,700 disability complains, 4678 were devoted to FAPE questions, or roughly 40%. Other high complaint areas were exclusion, retaliation, and academic adjustment. During this three year span, the OCR launched 15 FAPE related investigations of its own.

Another important function that OCR noted it played over this same time span was protecting the educational rights of “wounded warriors.,” our nation’s soldiers who have returned home from battle with permanent injuries that qualify them for educational protection. OCR noted that often these former soldiers are not familiar with the educational protections provided for them under federal law.

Similarly, educational institutions are not uniformly prepared to serve an influx of veterans with combat-related disabilities such as Traumatic Brain Injury and Post-Traumatic Stress Disorder. OCR’s technical assistance has informed veterans, educators and service providers from institutions such as the Veterans Administration about how the protections afforded to post-secondary students with disabilities apply to those returning from war.

Here are examples of some of the investigations based on complaints received by OCR.

Academic Adjustment: An HIV positive student alleged that his college discriminated against him by dismissing him from its medical office technology program. One of the required classes for it mandated that the students draw blood from one another, and the school dropped the young man due to safety concerns. In order to resolve the complaint, the school agreed to re-enroll the student, consider the student’s request for the academic adjustment of not having other students draw his blood, and provide the college’s staff with training on the necessity of providing academic adjustments to disabled students.

FAPE: OCR facilitated Early Complaint Resolution where parents alleged that a school district had not faithfully implemented their child’s IEP (individualized educational program) who qualified for services due to a mood disorder. Based on these efforts, the district agreed to schedule an IEP to discuss the parent’s concerns and to provide notice to the teachers of the requirement that they implement the IEP.

Harassment: Parents filed a complaint based on harassment they alleged their student had received due to a disability related body odor issue. The child had been previously diagnosed due to Fragile X Syndrome, ADD, Asperger’s Syndrome, and Tourette’s Syndrome. The complaint alleged that based on the body odor issue, the student had been detained by school staff who made her take a shower prior to attending class, had staff spray air freshener on her in front of other students, and be sent home prior to the end of the day due to her body odor. After OCR facilitated Early Complaint Resolution, the school district agreed to train staff regarding the student’s disabilities, enroll the student in its Senior Life Skills course, offer weekly social work services, and assist the student in finding community employment.

Special education dispute leads to Orange County man defending himself in a double murder trial

Posted on by

Robert Alan Lehmann, a divorced father of one, is facing double murder charges for the killing of his ex-wife. Emily Ford, and ex-father-in-law, Russell Ford. The murder occurred the same day the Lehmann lost custody of his ADHD/special needs daughter to his ex-wife. She had filed for full custody due to Lehmann’s inability to control his temper and the resultant fear for her safety that she was experiencing. At the core of their dispute was proper school placement for the seven year-old. Dad wanted expensive private placement while Mom preferred a public school placement.

For all the facts of the case, please read my Examiner.com article.

DMV photo of Emily Ford, 32. (credit to starfl.com)

Special education funds face steep reductions from Feds

Posted on by

The “OMB Report Pursuant to the Sequestration Transparency Act of 2012” paints a grim picture for the disabled in America. Unless something is done before sequestration begins in January, 2013, special education funding to the states will be slashed by more than a billion dollars and multiple other programs benefiting the disabled would similarly be slashed by millions of dollars. Sequestration went into effect when law makers failed to reach a budget agreement last year. At that point, the 8.2% slash to nearly all federal programs automatically kicked into gear and will apply to the 2013 budget unless something is done. All told the bill is expected to initiate 1.2 trillion dollars in cuts for the 2013 budget.

The long anticipated report on sequestration’s financial effects paints a grim picture not only for America’s disabled but also for the country as a whole. Multiple financial experts have cried out against the potentially disastrous effects that sequestration could have on the American economy, warning that the indiscriminate cuts would likely serve to plunge the country back into recession.

The report briefly touches on the enormous spending cuts that education faces if nothing is done to stave off the law’s effect.

Education grants to States and local school districts supporting smaller classes, afterschool programs, and children with disabilities would suffer.

Further medical research delving into developmental disabilities would similarly suffer a major slash as the National Institute of Health would suffer a 2.3 billion dollar cut.

ACLU files unprecedented class action law suit against Michigan school district

Posted on by

Highland Park High School (Credit: Educationnews.org)

The ACLU has filed an unprecedented class action law suit claiming that various Michigan state entities have failed to meet the requirements of providing remedial reading strategies to struggling readers. The named defendants in the suit are the State of Michigan, the State Board of Education, Michigan Department of Education, Michael Flanagan, Michigan’s Superintendent of Public Instruction, Joyce Parker, Emergency Manager for the Highland Park School District, and the Highland Park School District (HPSD) itself.

The lawsuit seeks the “immediate implementation of of MCL 380.1278(8), which provides every regular education student who does not show proficiency on the reading portion of the Michigan Educational Assessment Program (MEAP), the State’s standardized reading proficiency test, in 4th or 7th grade shall receive ‘special assistance reasonably expected to enable the pupil to bring his or her reading skills to grade level within 12 months.'”

The complaint presents an incredibly tragic picture of the educational conditions and opportunities with HPSD. As alleged in the suit, two thirds of all students do not have the basic literacy skills necessary to meet ground-level standards of proficiency. According to the State of Michigan’s own data for HPSD, only 35% of 4th grade students in HPSD scored “Proficient” or higher on the MEAP reading test and only 25% of 7th grade students scored proficient or higher. Despite these dismal results, HPSD has violated MCL 3801278(8) by failing to provide the state-mandated remedial reading programs necessary to address these deficits.

According to the suit, despite these horrible numbers, HPSD has simply refused to provide its students the state-mandated remedial reading programs which would help address these deficits. When Michigan’s Department of Education was sent questions to answer prior to the filing of the class action, one specific question asked the district to provide documents relating to the reading intervention programs designed to meet the requirements of MCL 380.1278(8) or otherwise provid[ing] remedial reading instruction, its official response was, “To the best of my belief and knowledge, the Michigan Department of Education does not possess the documents you requested.”

The lawsuit alleges critical deficiencies in HPSD’s instruction and facilities. In the suit, it is alleged that there are insufficient textbooks to allow students to take books home, all copies must be made at teacher’s expense, there is inadequate heating to the extent that students must wear parkas and mittens in the weather, there exists inadequate academic support since the schools have neither counselors nor vice principals, the bathrooms are not properly maintained, often having walls smeared with feces, the library is inadequately supplied with books and students are not allowed to check the ones that are there out.

HPSD is a small school district in close proximity to Detroit. The city of Highland Park has 11,776 residents, the vast majority of whom are African American. Of the 973 students enrolled in HBSD, 99.59% are African American. Additionally, 82% qualify for Federal Free or Reduced Lunch program. In other words, this is a poor, African American town located next to Detroit.

The most heartbreaking thing detailed in this suit are the comments of the children named in the suit. The students were given a written prompt to asking them to tell the Governor about the school. Following are a few responses. Fourth grader D.I. wrote, My name is (deleted) this is what I what to do when I what grow up at Bussness laddy And can you give my a favorite By helping me to work my way up to keep up Jobs. C.M., a 6th grader, wrote, Well we can have playtime. And write lot of things. And read books. And have fun. The state goverment will come and come to the school. Tell the Teacher what to do! To help. A final example comes from F.C., a 7th grader, wrote, Hi My is (deleted) and i go the school at Barber focus and i would like you to make Better reading Books and cleaner water and supply for the classroom.

Almost as heartbreaking are the tales of the students about quality of instruction they receive in reading. L.M. reports that he was enrolled in a class titled “Virtual Learning English Arts.” In this class L.M. answered questions on the computer for the entire course. While he and his classmates worked on the computer, his teacher graded papers or completed other tasks on her computer. The teacher never lectured or used the blackboard for instruction. F.C. reports that he took a class called Read 180. The class contained 30 students who were split into two groups. While one group read aloud, the other group accessed self-directed work on the computer. The teacher never provided direct instruction.

If the ACLU’s suit is successful, Michigan and HPSD will need to institute quality remedial reading programs in this small, urban district.

Proportion of special needs children in public schools increasing

Posted on by

Public education advocates have long worried and complained that the school choice movement will make public school campuses largely places where only those lacking in the resources to attend better schools will be educated. Recent statistics seem to be supporting this argument. In an Associated Press piece today, Christina Hoag reported on how the proportion of special needs children in public schools is increasing. This is happening not because of increased identification of special needs children but rather because other students are increasingly opting “for alternatives that aren’t readily open to those requiring special education.” Read the rest of the article here. To learn more about how charter schools are difficult to get into for special education students, click here.

Understanding limited conservatorship in California

Posted on by

Understanding limited in conservatorships in California requires knowledge of the fact that there are different types of conservatorships that may be obtained.

In California, there are three types of conservatorships: general, limited, and Lanterman-Petris-Short (LPS) conservatorships. A general conservatorship is for a person who lacks the ability to care for herself or her finances. It is usually for elderly people but is sometime for a young person, for example where the individual suffers a serious brain trauma. A limited conservatorship is for disabled individuals who do not need the higher level of care a completely incapacitated person requires. An LPS conservatorship is initiated by the State for the care of an individual with a serious mental health condition for which special care is required. These are individuals who, due to the nature of their disabling condition, are resistant to treatment and who generally require a lock-down facility.

Limited conservatorships are called this because they offer the court the ability to narrowly tailor the conservatorship to match the needs of the individual. The goal is to allow the disabled individual to maintain as much control of their lives as they are able. There are six areas in which decision making can be granted to the conservator:

  • Decide where the limited conservatee will live (NOT in a locked facility).
  • Look at the limited conservatee’s confidential records and papers.
  • Sign a contract for the limited conservatee.
  • Give or withhold consent for most medical treatment for the limited conservatee (NOT sterilization and certain other procedures).
  • Make decisions about the limited conservatee’s education and vocational training.
  • Give or withhold consent to the limited conservatee’s marriage or domestic partnership.
  • Control the limited conservatee’s social and sexual contacts and relationships.
  • Manage the limited conservatee’s financial affairs (for a limited conservator of the estate).

In understanding limited conservatorships in California, one should note that there are two different types, limited conservatorship of the person and limited conservatorship of the estate. In the former, the conservator cares for the disabled person’s daily needs and protects her. In the latter, the conservator manages the financial affairs of the disabled person, doing things such as paying bills and collecting the income of the disabled person. Generally, if the individual’s sole income is through public assistance, no conservatorship of the estate is necessary.

The decision to obtain a limited conservatorship is an important one. In general, when one obtains becomes a conservator, she takes over the decision-making power for another adult. Because the freedom to make choices concerning one’s own life is a basic civil liberty, this power can only be taken from one individual and granted to another by the courts.

When is a limited conservatorship necessary? In general, courts prefer alternatives to conservatorship where possible. Because of the deprivation of civil rights entailed, the courts encourage people to seek out alternatives. Such things as educational powers of attorney, court authorized medical treatment, informal personal care arrangements can sometimes stand in place of a conservatorship of the person. Rather than obtain a conservatorship of the estate, such things as living trusts, joint title to bank accounts, and substitute payees of public benefits are acceptable alternatives.

There are certainly good reasons to establish a conservatorship of the person if the individual is severely disabled. Following are some instance where a conservatorship would be a necessary or positive asset:

  • The disabled is much younger emotionally and socially  than adult age and needs protection.
  • A medical institution requires a limited conservatorship before they will perform an operation on the disabled adult.
  • Due to a lack of impulse control, the disabled person signs contracts for cells phones and other such items but lacks the ability to understand the consequences of their actions.
  • Parents want to decide where or who with  their adult child can live.
  • Frequently, schools will will not consult with the parents of disabled adults but their continued advocacy is required.

While it is possible to obtain a limited conservatorship on one’s own, it is usually advisable to obtain an attorney. There are numerous complicated forms to complete, mistakes can delay the process, and in some instances a limited conservatorship can be contested by either the public defender or the regional center.

If you are currently considering obtaining a limited conservatorship, please contact The Law Office of Gregory R. Branch for assistance. I may be reached at 714-856-1166 or at gregorybranch@edrightsadvocate.com.

 

Principal who degraded special education student as “psychopath” retains job

Posted on by
Principal of Oxford Area High School

Dr. Dave Madden (credit productionchange.com

(Oxford, Pennsylvania: a suburb of Philadelphia) Despite being caught texting and emailing comments that degraded a special education student at his school, the Oxford Area School District, a suburban Pennsylvania K-12 district, voted to reinstate the principal of Oxford Area High School on a 6-3 vote. Dr. David Madden had been placed on suspension due to written comments he made regarding a bipolar special education student. At the board meeting following the vote, parents reacted angrily to the decision. Parents discussing the issue had tears in their eyes as they described Dr. Madden’s comments as hurtful and insensitive.

The issue surfaced during a March IEP for the emotionally disturbed student. During the IEP, the student was represented by Lisa Lightner, a special education advocate employed at the Arc of Chester County, a program which provides services to disabled people. Ms. Lightner became bothered when she saw two administrators texting during the meeting. She stole a quick look at the Assistant Principal’s phone and saw that the text was from Dr. Madden, who was also seated at the table, and that it began, “F&!@ this manipulator.”

Ms. Lightner reported the incident to her supervisor. Based on the incidence, Arc instituted a Federal Educational Rights and Privacy Act (FERPA) request for all records related to the student. Unearthed in this material were other derogatory messages about the emotionally disturbed student specifically and special educations students in general; all the emails were written and distributed by Dr. Madden via his district email account. In these blasts, he called the student a “psychopath” and expressed concern that the student could be another “Hinkley, Booth, AND Oswald.” (emphasis mine). Regarding special education students generally, he wrote that special education students, who he referred to as “the guilty people,” have more rights than “the innocent.” He went on to state, “Amazing world we live in and equally amazing that people are afraid of lawsuits. I say bring them on.”

Despite all this, the board voted not to fire Dr. Madden, but he has to meet certain stipulations. First, Dr. Madden is no longer be allowed to work with special needs kids. Second, he is being required to undergo a psychiatric evaluation. Third and finally, Dr. Madden is being required to undergo substance abuse testing. These measures have done little to soothe over harm caused by his comments. In the aftermath, the school’s special education director, Jenny LeSage, quit rather than continuing to work under Dr. Madden. Ms. LeSage was quoted by Philly.com saying,

Why would you have an administrator in a building where you basically say we don’t want you to have anything to do with 200 kids in the building? It’s the dumbest thing I ever heard in my life

In addition, many parents are outraged over the incident.

When concerned parents showed up to voice their disapproval, the board basically attempted to silence their opposition. Parents and concerned citizens were not allowed to mention the administrator by name. Further, questions brought about the board’s decision were left unaddressed. Ironically, because Dr. Madden degraded the special education student, the board had to meet to discuss paying out a settlement of between $200,000 and $250,000. It looks like the Dr.’s desire for lawsuits is going to come true.

 

Disabled children 4X more likely to experience violence suggests study

Posted on by
Child victim of violence

credit: adpunch

In a recent study published in The Lancet and funded by WHO, the World Health Organization, it was discovered that children identified as disabled are nearly 4 times more likely to experience childhood violence than their typical peers. The methodology for the research was to examine all the previous research on the subject over a 20 year period and then determine for those studies the strength of the research methodology. Based on this, 17 studies were chosen from a pool of 10,663 possibilities. The results of those 17 studies were then pooled and analyzed to reach its conclusions.

Findings: According to the study, violence is a major problem for all children with disabilities. The highest levels of exposure to violence was among emotionally disturbed children, while the lowest rates were seen among children whose disabilities were labeled as non-specific.

The authors note that their study has some weaknesses, stating

However, the continued scarcity of robust evidence, due to a lack of well designed research studies, poor standards of measurement of disability and violence, and insufficient assessment of whether violence precedes the development of disability, leaves gaps in knowledge that need to be addressed.

A summary of the report is here and the full study can be found here.

Bill adding family considerations to special education factors weighed in NY

Posted on by

As reported in the NY Times,Governor Cuomo of New York is deciding whether to sign a bill that would allow parents and schools to consider a child’s family background when making placement decisions for a special education child. The bill has already passed both branches of the legislature, and it is supported by religious groups which say many religious students are not prepared for the daily reality of life on our nation’s public school’s campuses. Opposing the bill is New York City’s Mayor Bloomberg, who argues that the language is too broad and could cover all kinds of considerations that are not important to a child’s education. Further, some critics feel the bill, if signed, will cut against the grain of the statutory intent of the IDEA, for which have students in the less restrictive environment and not segregated from their typical peers.

As is true of most federal law, states are free to offer greater protection to individuals than is offered by federal laws, they may not offer less though. If the bill passes, it could lead to other states putting into place such laws.

Mario Cuomo