Sunday, June 9, 2013

Valedictorian's Mike Cut Off Mid Speech: Policy vs. Judgement

High School Valedictorian Censored

When Joshua high school valedictorian said "..they threatened to turn off my microphone if.." the school officials did just that.  His mike was abruptly turned off.  In doing so, the school administrators may have created a bigger controversy than if they had just let the student say what he intended to. 

Under Tinker v. Des Moines ISD, schools have the right curtail speech if it will likely create a "material and substantial disruption" to a legitimate school function.  Here, the biggest disruption was the very act of cutting off the student's microphone.

 Another clear example of lack of perspective and good judgment on the part of one or more school administrators.

Saturday, April 27, 2013

Reading On Line News May Be Illegal for Children

I encourage my students to read news everyday.  Since most kids are online with their smartphones, that means regularly going to an online news source.  But for some teenagers, checking out online news sources may be breaking the law.  So if you are a teenager, reading news online, in the eyes of the Justice Department, you may technically be a criminal.

The Department of Justice (DOJ) under both the Bush and Obama administrations have interpreted the Computer Fraud and Abuse Act very broadly. So broadly, in fact, that it can be considered a crime for many kids to access news websites, according to the Electronic Frontier Foundation (EFF).
The EFF, a non-profit that focuses on protecting online rights, is warning literate young citizens that the DOJ's expansive interpretation of the Computer Fraud and Abuse Act has left many media outlets with strange age-based restrictions as to who can visit their websites.

Basically, a violation of a website's Terms of Service or Terms of Use policy can potentially be treated as a criminal act under the DOJ's interpretation.

The House Judiciary Committee has proposed making that position a part of the law. That means it would be a crime to access a website for any "impermissible purpose."
For many reasons, in part because of the Children's Online Privacy Protection Act, many news sites have terms of service that don't allow minors to visit their websites. But these terms of service vary. For example:
  • If you're under 13, you're breaking the law when you read sites like The New York Times, The Daily Caller,, and, according to The Atlantic.

  • If you're under 18, you'd best stay away from Alex Jones' InfoWars; WorldNetDaily; ThinkProgress; BuzzFeed; and any Hearst Publications website, which includes papers like Houston Chronicle and the San Francisco Chronicle.

  • However, it's apparently OK for all minors to visit sites like Gawker, Slate, Salon, and The Huffington Post, just to name a few.
Though the EFF recognizes it's being facetious in its warning, they say it's not really a laughing matter. Recently, a judge on the 9th U.S. Circuit Court of Appeals wrote: "Under the government's proposed interpretation of the CFAA...describing yourself as 'tall, dark and handsome,' when you're actually short and homely, will earn you a handsome orange jumpsuit."
So parents may want to keep a close eye on their 12-and-a-half-year-old. If he sneaks another peek at the digital New York Times, the feds might come knocking on your door.

Monday, April 22, 2013

Federal Fifth Circuit Says Texas Student Recieved FAPE

A recent ruling by the Fifth Circuit Court of Appeals, R.P. v. Alamo Heights ISD, __ F.3d __, 2012 WL 6701939 (5th Cir. 2012) affirmed the lofty place “student progress” holds among criteria determining a free and appropriate public education (FAPE).

R.P. was a student at Alamo Heights ISD in 2009. Late that year, R.P.’s parents brought a litany of complaints to a due process hearing officer concerning the treatment of their child, who had autism, an intellectual disability, and a speech impairment. At bottom, the parents believed R.P. had been denied a FAPE. The hearing officer saw it differently, as did the trial court to whom the parents subsequently appealed, leading to their appeal of the case to the Fifth Circuit Court of Appeals.

Central to the dispute were a sequence of contentious meetings of the student’s Admission, Review, and Dismissal (ARD) committee. These meetings were sometimes concluded early when tensions ran high between the father the committee. The father believed that the district was shutting him out of the process. In the appeal to the Fifth Circuit, R.P. and family argued, among other things, that the parents had been denied meaningful participation in the ARD process.

Elvin Houston, an attorney in the San Antonio office of Walsh, Anderson, Gallegos, Green and Treviño, P.C., laid out several scenarios in which it could be permissible for school districts to terminate an ARD over parental objection: (1) When the district believes there may be more information needed to consider a parent’s surprise request; (2) when a parent brings new information that district personnel have not previously had an opportunity to review; (3) when the district is seeking the assistance of legal counsel to respond to the parent; or, as was the case here, (4) if the parties find that they cannot work together effectively.

“In each of these situations,” Houston said, “it’s important that the district schedule the meeting to re-convene promptly and at a time when the parent can attend.” If too much time elapses between ARD sessions, he warned, the student at issue might lose educational opportunities.

It was the judgment of the Fifth Circuit that R.P. had not missed educational opportunities and had indeed made progress, even while concurring with the plaintiff’s complaint about an Assistive Technology (AT) evaluation being mishandled by the district. Said Houston, “The court concluded that regardless of whether the evaluation was actually complete in the fall of 2008”— a point that was in dispute—“the committee needed to review the data to incorporate the AT evaluation into the student’s 2008-2009 IEP [Individualized Education Program]. By waiting until late May, 2009, to consider the AT evaluation, the court concluded that the IEP could not have been appropriately individualized.”

When asked how districts can prove that their evaluations are properly considered, Houston stated, “Good meeting deliberations can be very helpful. The deliberations should capture the committee’s discussions about the report, rather than attempt to capture information that is already written in the report.”

Houston recommends that the deliberations include specific points of agreement or disagreement that are discussed during review of a report. Likewise, when discussing the specific recommendations in an evaluation report, it is important to identify any recommendations that the committee may have rejected and document why they were rejected.

Houston also encourages districts to put time-stamps in the ARD committee deliberations. According to Houston, the records could indicate, “Something like, ‘Dr. Jones started the discussion of the psychological evaluation at 1:30,’ and then later, ‘The committee accepted the recommendations of Dr. Jones psychological evaluation at 2:15.’ While the entire discussion may only span four sentences in the deliberations, it may be helpful to note that the committee took 45 minutes to review the report. This can be helpful if a family complains that the district did not give them an opportunity to ask questions or give input.”

Asked what advice he would give districts dealing with parents whose emotions run hot during meetings, Houston was firm: “Don’t allow yourselves to be pulled into the same situation. It’s hard to continue the meeting with parents who are using loaded language and challenging your competency, but…when tensions run high, take a short break and give everyone an opportunity to cool off. Sometimes you may only need ten minutes and a Diet Coke.”

Houston also emphasizes the importance of ARD committee members listening for the parents’ unspoken concerns and being open, if necessary, to bringing in someone who may be able to assist in understanding their point of view

Chicago Charter Schools are Subject to NLRB. Is Texas Far Behind?

The NLRB recently held that a private company that provides teaching staff and educational services to a Chicago charter school is an employer subject to the board's jurisdiction and not a political subdivision of the state of Illinois (Pilsen Wellness Ctr., 359 N.L.R.B. No. 72, 3/8/13 [released 3/11/13]).

Applying the Supreme Court's Hawkins decision, the Board finds that Pilsen's directors are appointed by the private nonprofit's sitting board members rather than public officials, NLRB concludes the company “is not administered by individuals who are responsible to public officials or the general electorate.”

Saturday, September 12, 2009

Student's Rights Not Violated By Banning Religious Music At Graduation

Nurre v. Whitehead, __F.3d___ (9th Cir. Sept. 8, 2009), is an interesting case involving Education and Constitutional Law. The 9th held 2-1 that a Washington school district’s decision to bar the performance of a religious-themed instrumental musical piece at a high school graduation did not violate the student’s rights under the Free Speech, Establishment, and Equal Protection Clauses. A band member filed suit against the superintendent after the group was prohibited from playing an instrumental composition of “Ave Maria” at a JHS graduation ceremony. Complaints and negative publicity over the performance of a spiritual song at an earlier graduation had prompted district officials to direct that all future graduation performances be strictly secular.

The Ninth affirmed the lower court’s decision which granted summary judgment to the school district. Interstingly, the majority found that instrumental music did constitute speech. The appellate court analyzed the speech restrictions on the basis of whether the restrictions were "reasonable in light of the purpose served by the forum and all the surrounding circumstances." It pointed out that the analysis "focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated." Given the prior controversy over performance of religious music and the compulsory nature of a graduation ceremony, the majority held that the decision to limit music performances at graduation to "entirely secular" pieces did not violate the student’s right to free speech. With respect to the student’s claim that the decision in question violated the Establishment Clause because it evinced hostility toward religion, the court applied the three-prong test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971) to the school district’s decision. It found that the stated purpose that it prohibited the student selection in order to avoid conflict with the Establishment Clause satisfied Lemon’s secular purpose prong. Utilizing the reasonable observer test to analyze whether the decision had the primary effect of advancing or disapproving of religion, the majority concluded, given the previous incident involving a religious piece at graduation, that a reasonable observer would perceive the decision as an attempt to avoid another Establishment Clause case. Regarding the excessive entanglement with religion prong, the panel pointed that there are two types of entanglement, administrative and political. The court found no administrative entanglement because enforcement of the restriction is limited to the graduation ceremony. It, likewise, found no political entanglement because there was an absence in the record that the restriction had caused any political divisiveness.

Regarding, the equal protection claim, the majority rejected the student’s argument, based on the "class of one" theory," that she and her seniors were treated differently than previous students who were allowed to select music. It concluded: "Neither we, nor the Supreme Court, have ever applied a ‘class of one’ theory in this context, and we do not extend it to cover this case." As to the portion of the equal protection claim that did not rely on the "class of one," the panel reviewed the claim using the rational basis method, because it did not address a classification involving fundamental rights or proceed along suspect lines. The court concluded that the decision passed muster under the Equal Protection Clause because the school district had a legitimate interest in avoiding what officials believed could cause a confrontation with the Establishment Clause.

The dissenting judge on the panel, concurred with the majority's judgment, but only on the basis that the superintendent and the school district were entitled to qualified immunity from the suit. The dissent found the majority's reasoning untenable because the restrictions imposed failed the test applicable to speech in a limited public forum. That test requires that the restrictions are: (1) viewpoint neutral and (2) reasonable in light of the purpose served by the forum. While the judge found the prohibition was viewpoint neutral, he concluded it was not reasonable in light of the purpose served by the forum. He argued that "purging such a ceremony of all vestiges of religiously inspired art and culture—including those works with even the most attenuated connections to religion—did not advance the purpose of recognizing and providing a forum for student achievement." The dissent rejected the majority's conclusion that performing the piece created a risk of creating disruption or generating appreciable controversy. The dissent contended that the prohibition could not be justified on the basis of the so-called Establishment Clause defense because there was no danger of the appearance of government sponsorship of religion and impermissible coercion. Acknowledging that "no bright lines exist in this complex field of First Amendment law," he expressed sympathy for "school officials, who often find themselves in a Catch-22, subject to criticism and potential law suits regardless of the position they take." The dissent. therefore, would find that qualified immunity was appropriate in the present case.

Monday, July 27, 2009

Texas Lawmakers Promise $800 Raise for Teachers

Texas public school teachers can expect an $800 pay raise this year now that $2 billion in economic stimulus money has been approved and is available to the state, Democratic Texas lawmakers in Washington announced Friday.
Rep. Ruben Hinojosa, a senior member of the Education and Labor committee, read a statement from U.S. Secretary of Education Arne Duncan calling the money "part of the single largest boost in education funding in recent history."
The program involves a one-time appropriation of $53.6 billion under the American Recovery and Reinvestment Act of 2009.
Texas has already received $1.7 billion in education stimulus funds, and the state is eligible to apply for $1 billion more this fall, according to information from Hinojosa's office.
"All 12 Democrats worked with the secretary of education under the leadership of our chair, Ruben Hinojosa, to make sure that those teachers will get that money. And maybe the governor now will say something nice about the stimulus money that's actually providing for that $800," Rep. Gene Green said.
The approval of the state's stimulus plan should end a feud between the Houston Independent School District and the Houston Federation of Teachers. The teachers' union had threatened to take the district to court over the mandatory pay raise included in the stimulus plan.
The raise was supposed to come on top of the extra seniority pay that teachers typically receive. But the district decided last month to scale back that seniority pay for about 1,350 teachers getting a raise greater than 5 percent.
In a statement released by his office, Gov. Rick Perry said he was pleased Texas' application for funds was approved, and that it "will help increase public school funding, providing each school a minimum additional $120 per student."
"Providing quality education to our state's school children continues to be a top priority. Texas lawmakers appropriated this money, along with more than $30 billion in state funds, to enhance educational excellence in our state," Perry said.
Hinojosa said he asked Duncan how long teachers will have the raise, and said it likely could be two years.

Source: Houston Chronicle

Saturday, July 4, 2009

Does the speech of a Valedictorian have to be approved by the district?

The 10th Circuit held that a school district did not violate a student’s free speech rights by requiring her to submit her valedictory speech for prior review or by withholding her diploma until she apologized for disregarding the policy.
The court also found that the policy did not violate the student’s right to free exercise of religion simply because her speech contained religious content, nor did it violate Colorado’s statute guaranteeing student publications freedom from prior restraint by school officials.The School had an unwritten policy which required that each valedictorian submit his or her proposed graduation speech to the principal for review.
The speech submitted by Erica Corder, one of 15 valedictorians made no mention of her religious beliefs. However, the speech she gave urged the audience to “find out more about the sacrifice [Jesus] made for you so that you now have the opportunity to live in eternity with Him.” The student was not given her diploma during the graduation and later was told she would not receive it unless she publicly apologized. She did so and received her diploma, but then sued raising six claims: (1) violation of freedom of speech under the First Amendment; (2) compelled speech in violation of the First Amendment; (3) violation of the right to equal protection under the Fourteenth Amendment; (4) violation of freedom of religion under the First Amendment; (5) violation of the Colorado statute on student publications; and (6) violation of the Establishment Clause of the First Amendment.
The main issue on appeal was Erica’s claim that the policy violated her free speech rights. The 10th held that the question was controlled by the U.S. Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), because, given the level of control school officials exerted over who was named a valedictorian and the content of the speeches in advance of the graduation, the speech at issue constituted school-sponsor speech bearing the imprimatur of the school. Hazelwood allows school officials to exercise editorial control over school-sponsored speech, provided any restriction is reasonably related to legitimate pedagogical concerns. Here, the court found, “[a] graduation ceremony is an opportunity for the School District to impart lessons on discipline, courtesy, and respect for authority,” and school districts are “entitled to review the content of speeches in an effort to preserve neutrality on matters of controversy within a school environment.” Turning to the claim that her forced apology amounted to impermissible compelled speech, the court first noted that under student speech jurisprudence, compelled speech is no different from censored speech. Therefore, the court reasoned, because the school could censor Erica’s speech under Hazelwood, it also could compel her to apologize for disregarding its policy, where this was related to the legitimate pedagogical purpose of learning discipline, courtesy, and respect for authority.
As for the free exercise of religion claim, the court concluded that the policy of prior review was one of general applicability that operated in a neutral manner as to content of all the speeches, regardless of content. Erica was not disciplined under the policy because of the religious content of her speech, but because gave a different speech than the one she had submitted to the principal. The equal protection claim also was without merit, because Erica had failed to assert that she is a member of a suspect class or was denied a fundamental right. Finally, the Colorado statute was inapplicable her speech was not a part of a student publication.