Supreme Court declines to hear zero-tolerance case

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The U.S. Supreme Court has turned down a case involving application of a school district’s zero-tolerance policy regarding weapons to a student who shot spit wads in class. With its decision, the six-month school expulsion stands since the student has no further recourse.

In 2010, Andrew Mikel was a freshman at Spotsylvania High School in Pennsylvania. During lunch one day, he made the unfortunate choice to shoot small plastic pellets from the broken tube of a ball point pen at three students during the break. While the victims in the incident did report that the pellets left red marks, no one was injured by Andrew’s actions.

Andrew Mikel II and his father (Credit www.fredricksburg.com)

At first, Andrew was given a 10-day suspension, but the school board later voted to extend the suspension citing the district’s zero-tolerance policy for weapons policy which states that students who use a weapon to threaten, intimidate, or injure another student are subject to expulsion for a 365 period absent extenuating circumstances. Their actions did not stop even there though. The district referred the incident to the criminal courts where the honor student was accused of assault. Andrew was required by the court to attend a diversion program and took anger management classes and substance abuse classes.

In all this, the fact that the student was an honor student who wrote letters of apology to each of the victims and also offered restitution to the families in the form of raking leaves at their homes seems to have never been taken into consideration.

The lower court, despite upholding the school board’s decision, noted in its holding the absurdity that Andrew could be expelled for shooting spit wads, but if he had instead simply walked up and punched a student in the face, the maximum punishment would be a 10-day suspension.

It is a shame that the court declined to take up the case. This is another example of how zero-tolerance policies are being used in ways that make zero sense and children’s lives are being harmed in the process.

In this case, Andrew, an honor student, was preparing himself to gain entrance into the U.S. Naval Academy at Annapolis. Now, due to the criminal charges and his expulsion, that dream is shattered. He has been informed that based on this incident and the ensuing disciplinary actions, it is virtually impossible for him to pursue his dream. Due to this, he has now decided to try to get into the Virginia Military Institute instead.

If schools are going to continue to attempt school expulsions for disciplinary infractions of this sort, more court cases are sure to follow. While everyone wants schools to be safe, expelling this student in this case does nothing to advance that goal. The students were never in danger, nor was it even argued that the student intended to cause bodily injury to the other students.

While this student is out-of-luck, it can be hoped that the Court will take up such a case in the future and give guidance on the appropriate uses of zero-tolerance in school.

Mikel family discusses case (click to go to YouTube video)

 

Guidelines created balancing student free speech and anti-bullying law

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The American Jewish Committee has drafted a set of guidelines contained in an 11-page pamphlet entitled Harassment, Bullying and Free Expression: Guidelines for Free and Safe Public Schools,”  The guidelines have received a broad consensus coalition including groups such as the American Association of School Administrators, the Muslim Public Affairs Council, and the Religion Action Center of Reform Judaism.

The pamphlet is an attempt to provide some clarity on an issue that has been a thorn in the side of schools for some time. In recent years, a broad range of educational institutions have been pushing the Supreme Court to take up a free speech in school case. Administrators correctly argue that the outdated Tinker standard no longer works in the social media/bullying age. As quoted by the Huffington Post, Francisco Negron, the National School Boards Association general counsel, “The pamphlet can fill a need the judicial system has not.”

Negron is further quoted as saying the 11-page pamphlet outlines the difference between “what constitutes a personal attack, and the expression of an idea.” Based on current law governing free speech in schools, the guidelines attempt to balance the sometime competing interests of free speech and anti-bullying policy.

The guidelines offer a balanced perspective that seeks to foster the healthy expression of ideas while disallowing personal attacks against individual students and/or student groups.

One important sentence reads…

Words that convey ideas are one thing: words that are used as assault weapons quite another.

Other important excerpts include…

• …schools should consider incorporating proactive measures as part of their response, apart from discipline and suppression of speech.
• Public schools should not be satisfied with merely avoiding legal liability for harassment or bullying.
• Schools themselves are free to communicate in a non-coercive way their own views on subjects that generate controversy in the community…

As would be expected from guidelines endorsed by such a broad spectrum of groups, the core message of these suggestions is one of education and tolerance. The central message is for administrators to allow political speech, but to deal with speech directed toward individuals or speech which is likely to cause substantial disruption on campus.

Magnet school entrance criteria excluding 504 students okay says 9th Circuit

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At the end of a decision regarding whether nominal damages can be awarded under IDEA, the 9th Circuit held they cannot, the Court then went on to address a counter-claim brought by the parent. In this claim, she asserted that the district court improperly dismissed her Rehabilitation Act Section 504 and ADA monetary relief claims which were based upon the admissions policy of the school district’s magnet high schools. The Court upheld the district’s court decision, and that monetary relief was not appropriate here.

aIn Oman v. Portland Public Schools, the Court began be quoting the direct language of Section 504, “[n]o other-wise qualified individual with a disability . . . shall, solely by
reason of her or his disability, be excluded from the participation”  in a program or activity receiving federal financial assistance, 29 U.S.C. § 794, or a public entity, 42 U.S.C. § 12132. These statutes provide a private cause of action in certain circumstances.The court went on to note that under very limited circumstances, ADA and Section 504 may provide a cause of action for failure of public school to provide a free and appropriate public education (FAPE).

In analyzing whether such a claim existed under the circumstances of this case, the Court quoted Se. Cmty. Coll. v. Davis,

“Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate.”

Rather, schools may not exclude a person who is “otherwise qualified” based upon their disability. For a student to be qualified, an applicant must be able to “meet all of a program’s requirements in spite of his handicap.” In it’s holding the Court stated,

we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue, we extend judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases.

Noting that here the requirement which was keeping the plaintiff’s son from attending the school was a threshold that to be admitted students had to be able to write at a minimum of an eighth grade level.

 

Elementary students suspended based on sexual charges

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Child convict

Because of a case I have been working on, I have recently been looking into young children being suspended and or expelled from schools based on charges that they broke school rules with regard to sexual behavior. To this mix is the story coming out of Aurora, Colorado, involving a lively young boy who has been suspended for the “sexual harassment” of one of his female students. What sort of harassing behavior did the boy engage in? He was found to have been singing LMFAO’s song, “I’m sexy and I know it.” While school officials assert that the boy was singing the song to a girl, the boy’s mothers states that he was simply singing in the lunch line. My question is, “Does it matter?”

I would argue that even if the boy was singing the song to the little girl, his actions do not constitute sexual harassment. According to Equal Rights Advocates, there are two types of sexual harassment that occur in schools. The first is quid pro quo. This occurs where a person in authority offers a student some advantage in exchange for sexual favors, i.e. if you sleep with me, I’ll make sure you make the cheer-leading team. There is certainly no argument that this occurred between the young Colorado student and the female to whom school officials assert he crooned his song.

The second type of sexual harassment is hostile environment. This occurs where due to unwanted comments, touching, or gestures, a student is prevented from benefiting from their education. It is important to note that sexual harassment is perceived through the eyes of the person receiving the message, not the person who delivered it. Further, this type of harassment is almost always on-going. It occurs over an extended stretch of time. The exception to this is egregious examples of sexual harassment such as sexual battery or the like.

Here, once again, the facts do not support this six year-old being suspended. First, it is hard to imagine that the girl who was being serenaded, if you believe school officials, had her education experience so tainted that she was unable to benefit from instruction. Secondly, although I do not have access to all the facts, I find it difficult to believe that the young girl even perceived the song as a sexual overture. Such a thought is not in the nature of young children of this age.

School officials need to be mindful that the adult context of sexual offenses does not translate well at the elementary school level. Another California case illustrating this trend occurred in Hercules, California where at Port Lupine Elementary School, a first grader was suspended for sexual assault when, allegedly, his hand grazed the other boys private areas during a game of tag. The parent of the suspended child posted about it on school law blog and a massive uproar ensued, and the school eventually backed down.

It is important to note that the education code that defines what sexual battery is refers to specific sections of the California Penal Code. In order for a child to guilty of sexual battery, they must have committed one of five VERY serious crimes.(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.

 

(n) Committed or attempted to commit a sexual assault as defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal Code or committed a sexual battery as defined in Section 243.4 of the Penal Code.

 

Section 261 is the law regarding forcible rape. Section 288 is a lewd or lascivious act against a child. Section 266c is obtaining sex through false pretenses of by threat. Section 289 is forcible penetration with a foreign object. Section 243 is sexual battery. It is important to note that nearly all the statutes include a requirement that the action must have been undertaken for the purpose of sexual gratification, which at most ages of elementary school students is simply not possible. Generally, it is acknowledged that a person must have begun puberty to possess such an intent.

If your child has been suspended and or is up for expulsion due to a sexually related offense, it is important for you to protect your child’s rights. Having a suspension or expulsion for sexual violence or harassment on your child’s academic record can have far reaching consequences. Please contact The Law Office of Gregory R. Branch if your child is facing such a disciplinary action.

 

California Student Attendance Review Boards

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California students are required by law to attend school between the ages of six and eighteen. Children who are sixteen or seventeen and who have either graduated from high school or passed the California High School Equivalency Exam can be out of school if they obtain parent permission.  School attendance is a serious issue. Children who miss school frequently are far more likely to fail, drop out, and commit crime. Because of this, in 1974, California’s legislature created Student Attendance Review Boards (SARB).

California Education Code (EC) Section 48320 is intended to allow enhanced enforcement of the state’s compulsory education laws Further, it attempts to keep chronically truant students or those with behavior problems from entering the juvenile justice system. The companion law, EC Section 48321, provides several organizational structures for SARBs at the local and county level to create a safety net for students with persistent attendance or behavior problems. The goals SARB is to have students stay in school and obtain an education. When the SARB process does not work though, SARB has to the authority to Although the goal of SARBs is to keep students in school and provide them with a meaningful educational experience, SARBs do have the power, when necessary, to require students and their guardians/parents to go to court.

Parents who are called before a SARB board should not take the experience lightly. While the goals of SARB are admirable, it sometimes is not understanding of the plight of parents who have children with special needs. Parents called to SARB hearing who really feel that there are legitimate reasons why their child is missing school are advised to contact my office, The Law Office of Gregory R. Branch. We can represent you at SARB and assist you in ensuring that your child’s rights are supported.

Special education discipline rights for unidentified students

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Get out of our school district (credit: thebiggestnews.com)

 

School discipline is more complex than many people might think. At the end of the day, it is a legal process governed by state and federal laws. As with all creatures of law, the questions that come up can be quite complex. One particularly thorny issue is when a school disciplines a child who is not labeled as special education but for whom there exists a basis for reasonable suspicion that the student might indeed be a special needs student. Read the rest of my Examiner.com article here.

Cyberbullying education should begin at younger age research suggests

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A study conducted by the Massachusetts Aggression Reduction Center (MARC) looking at the role technology in cyberbullying has shown that students are gaining complete access to the internet at earlier ages. The increased access is occurring at a time when bullying, particularly for young girls, reaches some of its highest levels of incidence.

Read the rest of my article here.

Profanity laced threats by school rapper not protected by 1st Amendment

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A Mississippi federal district court summarily dismissed a case against a school district and its officials for disciplining a student who had posted an invective and threat-filled rap song on his Facebook page and on YouTube. Taylor Bell, a senior at Itawamba Agricultural High School, composed, sang, and recorded a rap song that he then posted on to Facebook so that it could be viewed by his over 1,300 Facebook friends and then went on to publish the song on YouTube. The vulgar song accuses two of the school’s coaches of having inappropriate contact with underage female students. According to court documents, “the last two verses include the phrases:(1) ‘looking down girls’ shirts / drool running down your mouth / messing with wrong one / going to get a pistol down your mouth’ and (2) ‘middle fingers up if you can’t stand that nigga / middle fingers up if you want to cap that nigga.’”

Taylor Bell, former Itawamba High School student

In Bell v. Itawamba County School Board, Judge Neal Biggers upheld the seven day suspension and administrative transfer levied by the school upon discovering the song. Applying the Tinker standard, the court found that

Taylor Bell’s song caused a material and/or substantial disruption and it was reasonably foreseeable that such a disruption would occur. The song is not protected by the First Amendment, and the school did not err in punishing Bell for publishing it to the public. Therefore, Taylor Bell’s claim that his First Amendment rights were violated by the school should be dismissed with prejudice.

This is another in string of federal cases where student off-campus speech has been held actionable by the courts. Under Tinker, “conduct by a student, in class or out of it” which “materially disrupt classwork or involves substantial disorder or invasion of rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” The court noted that Tinker‘s material or substantial disruption standard has been expanded to allow speech to be regulated where such issues are only foreseeable, not having yet occurred.

In reaching its holding the court applied the following test:

(1) whether Taylor Bell’s song caused or tended to cause a material and/or substantial disruption at school or (2) whether it was reasonably foreseeable to school officials that the song would cause a material and/or substantial disruption at school.

Applying this test, the court found that the song had created actual disruption at the school. Coach Wildmon, one of the coaches about whom the song was penned, first heard about it while teaching his class. His wife had learned and heard of the song and texted him from her cell phone. Upon receiving the text, the coach turned to three seniors sitting in his class and asked if they had heard the song. Replying affirmatively, one of the students played the song for him using his cell phone. The coach testified that he felt threatened by the lyrics threatening to kill him in the song and that his “teaching style had been adversely affected” due to his belief that now students suspected him of inappropriate behavior.

The court also found that disruption was foreseeable where a

public high school student’s song (1) that levies charges of serious sexual misconduct against two teachers using vulgar and threatening language and (2) is published on Facebook.com to at least 1,300 “friends,” many of whom are fellow students, and the unlimited internet audience on YouTube.com, would cause a material and substantial disruption at school.

Gregory R. Branch is an educational attorney in Orange County, California. If you feel that your child has been unconstitutionally disciplined for exercising their right to free speech, please contact Mr. Branch at gregorybranch@edrightsadvocate.com or at (714) 856-1166.