Articles in the School Law category

NSBA Files Brief in Supreme Court Case

NSBA attorneys have filed a U.S. Supreme Court brief supporting the city of Ontario, Calif., which is fighting a lawsuit from a SWAT team officer who said the police department acted illegally when it searched his city-issued pager and found sexually explicit text messages.

The case is important to school districts, which need unfettered access to employees’ work-related communications, both to ensure student safety and maintain smooth operations, said Naomi Gittins, NSBA’s deputy general counsel.

“Almost all school districts have these policies in place that tell employees, ‘You have no expectation of privacy'” regarding communications on district-issued equipment, such as cell phones and Blackberries, Gittins said.

Last June, a three-judge panel of the U.S. 9th Circuit Court of Appeals overturned a lower court decision in City of Ontario v. Quon and ruled in favor of the police officer, Sgt. Jeff  Quon, who said his immediate supervisor had assured him and other members of the SWAT team that their messages would not be reviewed. The review was part of an audit to determine the number of text messages the officers were sending. However, a higher ranking officer overruled that supervisor, searched Quon’s pager, and found the personal messages.

The city had a written policy stating that phone messages and e-mails were subject to departmental review, but it did not specifically mention pagers, Gittins said. However, before the incident, police officers were told orally that their pager messages could be reviewed.

The Supreme Court is expected to hear arguments in the case this term and issue a ruling before the term ends in July.

Lawrence Hardy, Senior Editor

Lawrence Hardy|February 17th, 2010|Categories: School Boards, School Law, School Board News|

Attorneys: Don’t Run From Diversity Policies

More than two years after the U.S. Supreme Court struck down race-conscious student assignment policies in the Seattle and Louisville public schools, many other districts are needlessly avoiding strategies that can increase diversity and boost student achievement, NSBA General Counsel Francisco M. Negron Jr. said Saturday.

“Most school districts are simply going to run from diversity policies because of fear of litigation.” Negron said Saturday at a break out session titled “Diversity: Dead or Different?”

But running scared is a mistake, said Negron and Arthur L. Coleman, managing partner for EducationCounsel L.L.C. Within decades the United States will be a “majority minority” nation. Global economic competition will continue to increase. The most successful students will be those who can thrive in a diverse environment. And one way to prepare them for that future is to continue seeking diversity in public schools and classrooms as an academic goal.

“Race and diversity are very much in play,” Negron said. “But you have to do it the right way…. It has to be part of a broad academic policy.”

That means districts not under court-ordered desegregation plans cannot seek to diversity as a means of redressing past discrimination; their efforts must instead have a broad academic purpose, Coleman said. He said the high court emphasized in its rejection of the Louisville plan that only about 3 percent of the district’s students would benefit from its race-based student assignments — hardly a prescription for broad academic benefit.

Districts interested in diversifying schools can use things like geographic boundaries, socioeconomic status, designation as English language learners, and other demographic criteria, but not if these are proxies for race, Negron said. And they should look to stakeholders outside the district, including businesses and community groups, to validate their actions, something the University of Michigan did in the wake of its own 2003 Supreme Court case concerning undergraduate admissions. In fact, Coleman said, looking at the policies of colleges and universities can benefit school districts as well.

“Who are the external validators who can come in and say, ‘This is important to our success?'” Coleman asked. “And this is exactly what the University of Michigan did.”

He added: “Frankly, there is more abundant higher education consideration of race than in the K-12 setting,” Coleman said.

Lawrence Hardy, Senior Editor, Publications

Lawrence Hardy|January 30th, 2010|Categories: School Law, Leadership Conference 2010, School Board News|Tags: , |

NSBA ornament brightens White House Holiday decor

The landmark Supreme Court decision in Brown v. Board of Education is depicted on NSBA's White House ornament.The landmark Brown v. Board of Education Supreme Court decision was the theme of NSBA’s hand decorated ornament at the White House this year.  Initiated by First Lady Michelle Obama and coordinated by the National Policy Alliance and others, non-profit organizations were invited to decorate ornaments that commemorate local American landmarks.  Kanisha Williams-Jones and Myra Maxwell of NSBA selected the U.S. Supreme Court as a landmark and used decoupage to decorate an ornament with items depicting the 1954 court case that struck down segregation in schools and propelled educational and social reform throughout the United States.   

Hundreds of landmark ornaments decorated the White House, but BoardBuzz has it on good authority that the NSBA ornament was prominently placed for easy viewing.  NSBA board members and several staff had an opportunity to see the ornament during a tour of the White House in December.  Another of the 26 trees at the White House was a Wish Tree made of recycled cardboard and constructed so that visitors could write down a wish and insert it into the tree’s branches. 

BoardBuzz hopes everyone’s wishes come true in 2010 and congratulates all those who participated in this celebration of equity and excellence in education.

Lucy Gettman|December 25th, 2009|Categories: Governance, School Law, Educational Legislation, NSBA Opinions and Analysis|

Law in the schools: Myths, fears & realities

A provocative article in the latest issue of the journal Education Next explores a long-term legal trend in public schools. Richard Arum and Doreet Preiss of New York University write in “Law and Disorder in the Classroom” that the number of favorable court rulings for students in school discipline cases has dropped dramatically since 1968. But the number of lawsuits has continued to grow, and they look a little different than they did when they started during the Civil Rights Era:

We also document that although public-interest lawyers were initially motivated to expand student legal rights as part of a larger strategy to reduce social inequality, legal challenges to school disciplinary actions are disproportionately the province of white and higher-income students and their families.

This trend has led to some consequences that might surprise you, they find:

Ironically, the expansion of student legal rights, rather than enhancing youth outcomes, has increased the extent to which schools have relied on authoritarian measures, decreased the moral authority of educators, and diminished the capacity of schools to socialize young people effectively.

Well if  the courts are upholding student discipline more and more, what’s going on here? In part, Arum and Preiss write, state laws and school board policies have become much more detailed about due process requirements. But it’s also a matter of perception. Many students now expect formal due process protections even for minor day-to-day disciplinary actions, not just expulsions and suspensions. And even teachers and administrators sometimes think students have more legal rights than they do.

All of this highlights the importance of legal literacy among school personnel, a topic that was the focus of a whole recent issue of the NSBA school law and policy newsletter Leadership Insider. In it, you can read survey results about what legal issues matter most to different education stakeholders and what some national experts think about the challenge of making sure schools have the legal know-how they need.

First, professors  David Schimmel of the University of Massachusetts and Matthew Militello of North Carolina State University make the case for why school districts should be concerned about how much their employees know or don’t know—or how much they think they know—about the law. Kevin Brady, also a professor at North Carolina State University , and Justin Bathon, a professor at the University of Kentucky and keeper of The Edjurist education law blog, then list a whole range of free online resources that today’s educators are using.

Finally, professor Sarah Redfield of the Franklin Pierce Law Center argues that education leadership programs in higher ed could do a much better job of breaking down the silos between disciplines like education, law, and business management. School districts and children, she says, would be the beneficiaries.

Lots more information and resources on this subject here.

Tom Hutton|August 28th, 2009|Categories: Governance, School Law, Student Achievement, NSBA Opinions and Analysis|

Remembering Walter Cronkite

NASA Press photo

NASA Press photo

Walter Cronkite made me nervous.

In January 2004, I was working on ASBJ‘s coverage of the 50th anniversary of Brown v. Board of Education. One of my goals was to do a series of Q&As that would serve as “bridges” from one story to the next; the “Most Trusted Man in America” was a logical choice to weigh in.

I worked through CBS News and got in touch with Cronkite’s personal assistant, who warned me that the 87-year-old former anchor was almost completely deaf. She also said he was undergoing treatment for a “problem with his legs,” or as he referred to them, the “parts that are just wearing out.”

My mantra was “Speak loudly and try not to stammer.” I decided to start by asking him about growing up in the Houston area (where I grew up as well). We also talked about Nov. 22, 1963, and I had a chance to tell Cronkite briefly that my father had seen John Kennedy in Dallas on that fateful day.

At that point, I was relaxed and his whirlpool was humming, and the interview formally began. Excerpts are below, and you can find the rest (along with interviews I did with Richard Riley, John Hope Franklin, Ted Shaw, and Richard Kluger) in the “Remembering Brown” archive from the April 2004 issue.

What were you was doing at the time:

I was with CBS. I had returned just a few years before from Europe and was working in Washington at that time. Unfortunately, I was not assigned to the Supreme Court case, but we were all working together to get the repercussions and comments and turning whatever we did into a little interpretive piece.

In terms of stories, how important was Brown in 1954, and how did the other newsmen view it?
(more…)

Kathleen Vail|July 19th, 2009|Categories: Governance, School Law, NSBA Publications, Diversity, American School Board Journal|

School law learnin’

BoardBuzz is pleased to announce that online registration is now open for the Council of School Attorneys’ 2009 School Law Practice Seminar. The seminar will be held from October 15-17, 2009 in Seattle.

The seminar will allow school attorneys from across the country to network as well as analyze the latest developments in the field. The Department of Education’s new general counsel, Charles P. Rose, will fill participants in on the legal priorities of the new administration. NSBA’s general counsel, Francisco M. Negrón, Jr. ,will provide an analysis of both the Supreme Court and federal regulatory developments.

In addition, Karen Haase from Harding & Schultz in Lincoln, Nebraska will touch on a hot new school law frontier. Her talk on “Liability for Student E-mails, Internet Use, and ‘Sexting'” is sure to provide useful tips for schools coping with legal issues arising from technology in the classroom.

Speaking of technology, if you can’t make it in person, live web streaming will be offered for the first time ever! Participants will earn up to 12.5 hrs of Continuing Legal Education (CLE), including one hour of ethics.

BoardBuzz would hate for you to miss this great opportunity, so click here for more information and to register for the seminar. Early bird discounts are available. See you in Seattle!

nvitale|July 10th, 2009|Categories: School Law, Conferences and Events, Announcements, NSBA Opinions and Analysis|

A step towards a student welfare standard

After the new decisions that were released during  June’s big school law week, BoardBuzz has had the Supreme Court on our minds.  As a result, we were doubly interested in NSBA General Counsel Francisco Negron, Jr.’s article recently published in American University Law Review.  The article titled “A Foot in the Door? The Unwitting Move Towards a ‘New’ Student Welfare Standard in Student Speech After Morse v. Frederick” discusses an emerging legal trend that may expand schools’ abilities to protect their students. 

The article focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use.  Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare.  Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug use, but in doing accepted the premise that schools may limit speech that encourages dangerous conduct, Negron points out.  Ironically, some lower courts have interpreted this opinion to carve out an exception to students’ First Amendment rights, thereby expanding Morse rather than containing it.

As Negron concludes:

“…Morse appears to have unwittingly created a new standard-not yet fully expressed as such, but found amongst its fractured opinions- that is premised on the underlying notion that schools may generally regulate student speech where student welfare is at stake.”

If this trend continues, school districts will be better able to keep students safe from potentially dangerous expression.  Now that’s a decision BoardBuzz can get behind!

After the new decisions that were released during June’s school law week, BoardBuzz has had the Supreme Court on our minds. As a result, we were doubly interested to read NSBA General Counsel Francisco Negron, Jr.’s article recently published in American University Law Review. The article titled “A Foot in the Door? The Unwitting Move Towards a ‘New’ Student Welfare Standard in Student Speech After Morse v. Frederick” discusses an emerging legal trend that may expand schools’ abilities to protect their students.

The article focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regular student expression that may threaten student welfare.

Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug use, but in doing accepted the premise that schools may limit speech that encourages dangerous conduct, Negron points out. Ironically, some lower courts have interpreted this concurrence as carving out an exception to students’ First Amendment rights, thereby expanding Morse rather than containing it.

As Negron concludes:

“…Morse appears to have unwittingly created a new standard-not yet fully expressed as such, but found amongst its fractured opinions- that is premised on the underlying notion that schools may generally regulate student speech where student welfare is at stake.”

If this trend continues, school districts will be better able to keep students safe from potentially dangerous expression. Now that’s a trend BoardBuzz can get behind!

nvitale|July 7th, 2009|Categories: School Boards, School Law, Announcements, Student Achievement, NSBA Opinions and Analysis|

School law week with the Supremes

The U.S. Supreme Court often hands down a flurry of rulings toward the end of its term, and this year is no exception. What set last week apart, for those of us in the education world, was that we got three school law rulings. So here we go:

The special ed case

First, the Court gave us a long-awaited answer to the question of whether parents of a student who never has received special education services in public school can place their child in private school and get public reimbursement. With Justice Anthony Kennedy recusing himself in earlier cases on this question, the Court hadn’t been able to rule definitively.

But last week in Forest Grove v. T.A., the Court ruled that Oregon parents who’d initially agreed with their school district that their son was not eligible for special education services but later pulled him out, without notifying the district, and put him in a residential school, could sue to get reimbursed for the tuition—over $5,000 a month. The details of the ruling, the dissenting opinion, the background on the case, and NSBA’s friend-of-the-court brief all are available starting here, courtesy of NSBA’s Legal Clips.

The big question on everyone’s mind is what kind of fallout we can expect: Will parents who’d like a taxpayer-paid private school education for their children be less inclined to try to work in good faith with their public schools? NSBA General Counsel Francisco Negron tells NPR that this is the scenario that worries schools, and it surely isn’t what Congress had in mind. In the Los Angeles Times, NSBA Deputy General Counsel Naomi Gittins expresses hope that the impact will be limited, since “Most parents do try to work with the school district.” Charles P. Conroy, executive director of a Massachusetts private school, offers reassurance in a Boston Globe op-ed. In this entry on his Education Front blog, Dallas Morning News columnist William McKenzie agrees with the decision but worries that it “could cost districts a boatload of money.” Wall Street Journal columnist and blogger Sue Shellenbarger has mixed feelings.

The media flurry case

The case that got the most intense media interest was, naturally, the Arizona strip search case, Safford Unified Sch. Dist. #1 v. Redding, which BoardBuzz wrote about here. Here, again, the Court ruled that the search of a thirteen-year-old girl suspected of concealing pills went too far, given the limited danger from prescription Ibuprofen and the lack of any reason to think she was hiding the pills in her underwear. Luckily, though, the Court agreed that on a question like this, where even the judges themselves disagree so much, the law isn’t so clear cut that the educators should be personally liable if they made the wrong call. Again, Legal Clips has all the details and background starting here.

The implications? Well, for starters, Gittins tells McClatchy, school officials “will think long and hard before they authorize a strip search in the future.” That’s probably not a bad thing. But on NPR Negron warns that, as we said last week, the decision also casts uncertainty on searches for other kinds of dangerous contraband, like weapons. And even when it comes to what may seem like more minor threats, he reminds CNN, “The home medicine cabinet now poses a serious threat to students, who may take those medications for abusive purposes.” Watch for future litigation over how “dangerous” something is, he predicts.

The sleeper case

The third case was more obscure and very complex, but it was a biggie in a nation where public schools are tackling the enormous educational challenges of an incredibly diverse student population, and have limited resources ot get the job done. Horne v. Flores was an appeal of lower court rulings that the state of Arizona violated the federal Equal Educational Opportunity Act (EEOA) by failing to fund English language learner programs adequately. The state never complied with the lower court’s order to come up with some rational connection between the needs and the funding provided, but some state officials argued the situation had changed so much since then that the state shouldn’t have to. 

The Supreme Court ruled that the lower courts must consider more carefully certain subsequent changes in the educational situation which may mean Arizona no longer is violating the EEOA and should be relieved from complying with the orders on funding. Details from Legal Clips on the case, including Justice Stephen Breyer’s blistering dissent, start here. The Arizona Republic reports on reactions to the ruling here.

One thing that had education and civil rights advocates worried was an argument that the state’s progress with ELL students under No Child Left Behind automatically meant that the state also was complying with the EEOA. An “enormous can of worms” was how NSBA Senior Staff Attorney Tom Hutton described that argument in the journal Diverse: Issues in Higher Education when the case was argued: “How would this play out in the special education context? I have a hard time believing the court would go there.”

And in the end it didn’t go there—not quite, anyway. While the Court rejected the idea that NCLB compliance = EEOA compliance by definition, it did say NCLB was relevant to the question of whether overall circumstances have changed sufficiently that Arizona no longer is violating the EEOA. That’s the question the lower court will have to reevaluate now. The Associated Press reports that the lawyer representing the plaintiffs welcomes the opportunity.

The Supremes to school officials

After such a busy week shaping school law, perhaps it’s fitting that a speech Chief Justice John Roberts gave over the weekend generated a message for school officials. The Associated Press reports that the Chief Justice said they shouldn’t “look to the Supreme Court to set school rules, only to clarify them when officials have abdicated that responsibility.”

Roberts called the Court’s rulings “clarity intended to deal with narrow issues that surface from government actions,” adding, “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad. We wouldn’t do a good job at it.”

True enough. But the downside of narrow guidance probably is more lawsuits, as everyone learns how to apply these rulings.

Tom Hutton|June 30th, 2009|Categories: Governance, School Law, Special Education, Elementary and Secondary Education Act, Educational Finance, School Security, NSBA Opinions and Analysis|Tags: |

Strip search opinion lacks a clear standard

Yesterday, the Supreme Court issued a decision that will impact how school administrators proceed when they believe that students may possess harmful drugs in violation of school policy. BoardBuzz previously covered this case in April during our discussion of the Washington Post‘s article that wisely recognized the Court’s need to “weigh the rights of students against the duty of school officials to protect safety.”  The Court, in its 8-1 decision in Safford v. Redding, ruled that a strip search of a student at Safford Middle School violated her Fourth Amendment search and seizure rights, but held that the school officials were entitled to qualified immunity from the lawsuit. While BoardBuzz is pleased that the school officials were relieved of personal liability in this case, we are concerned that the Court may have set an ambiguous precedent.

The Safford officials, based on a suspicion that Savana Redding was distributing prescription drugs to other students, searched her backpack and outer clothing for the pills. After that search yielded nothing, the principal took Savanna to the nurses’ office, where a search of her undergarments was performed. The court found that this course of action was unreasonable under the Court’s previous decision in New Jersey v. T.L.O. What was missing, Justice Souter wrote in his majority opinion, “was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear.”

NSBA’s General Counsel Francisco Negron says that the majority’s opinion sets a standard that may be hard for school officials to apply. “The home medicine cabinet now poses a serious threat to students, who may take those medications for abusive purposes,” he pointed out in an article on CNN.com.  Despite this reality, the Court’s decision offers little guidance for schools as to what drugs in what quantities are dangerous enough to permit a strip search.  “I think there will be more litigation,” Negron said in a Washington Post article about the decision.  For now, principals who seek ensure that students are not hiding drugs on their person must chose between protecting the health and safety of their students or protecting his school from a costly potential lawsuit.

“Justice Thomas in his dissent, warns us that students will now know where to hide their contraband,” Negron pointed out in an editorial in USA Today.  Let us hope that his words are not a sign of things to come.”

“In the meantime,” he concluded, “schools will do what they need to do to keep children safe.”

For more information on NSBA’s perspectives on the Safford decision, check out this official statement.

 

nvitale|June 26th, 2009|Categories: School Law, Teachers, School Security, Student Achievement, NSBA Opinions and Analysis|

Educators and policymakers address diversity

On June 12, NSBA’s General Counsel Francisco Negron headed to Capitol Hill to discuss with other educators, lawyers, and policy-makers ideas for creating more racially integrated schools.  A recent article from Diverse Online provided BoardBuzz with details of this forum sponsored by Rep. Chaka Fattah (D-PA), The Center for Civil Rights at UNC School of Law, the Civil Rights Project at UCLA, The University of Georgia Education Policy and Evaluation Center, and the Forum for Education and Democracy.  Gary Orfield of the Civil Rights Project moderated.  

About 75 people attended the briefing, entitled “New Initiatives for Integrated Education in the Obama Era: Reversing the Resegration of the Past Two Decades.”  Scholars presented five academic papers presenting diverse points of views on the issue, with titles ranging from “School Racial Composition and Young Children’s Cognitive Development: Isolating Family, Neighborhood and School Influences” to “Racially Integrated Education and the Role of the Federal Government. ”

 While panelists Chinh Q. Lee, a practitioner in residence with the Center for Social Justice at Seton Hall University School of Law, advocated for more federal efforts to eliminate segregated in our schools, Negron reminded attendees that positive change requires more than sweeping executive action. 

“We need to be cognizant of the fact that the way we run our schools is not at the federal level,” Negron said. 

He later noted that educational quality is impacted by more than just the school itself.  Two papers on the influence on neighborhoods, families, and housing on student success directed the conversation to one about the student’s community and educational quality.  “The stable, integrated community is the answer, not housing,” Negron said.  Other researchers agreed and shared a study that about how community leaders in Omaha, Nebraska fought for legislation that would create “learning communities.” These communities would unify 11 school districts, allowing them to share resources and reduce the impact of socioeconomic disparities on the school environment. 

What is your district doing to address diversity in schools?  Leave a comment and tell us about it.

Christina Gordon|June 16th, 2009|Categories: School Law, Educational Legislation, Student Achievement, NSBA Opinions and Analysis|
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