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.”