March 2010 Archives

School bullying is in the news as a Massachusetts prosecutor yesterday charged nine teenagers--and criticized the response of school officials--over bullying that allegedly led a 15-year-old student to commit suicide in January.

The Boston Globe reports today: "With sharp words and a strikingly aggressive prosecutorial stance, authorities yesterday spelled out a litany of charges against nine teenagers accused of subjecting 15-year-old South Hadley student Phoebe Prince to months of tortuous harassment before she hanged herself in a stairwell at home."

The newspaper posted the detailed press conference statement of Northwestern (Mass.) District Attorney Elizabeth Scheibel on the case.

Charges filed in the case include statutory rape, criminal harassment, violation of civil rights, stalking, and disturbance of a school assembly. The nine students had not made any public response to the charges as of Monday.

The district attorney said the response of officials at South Hadley High School to reports of the bullying was "troublesome" but did not amount to criminal behavior. An associate superintendent of the South Hadley public schools said in a statement reported today by The New York Times that school officials planned to meet with the district attorney's office to review information that did not come to light in the school district's own investigation.

Meanwhile, in a separate bullying case, a New York state school district has settled a lawsuit filed over the alleged harassment of a gay student.

The student, identified as J.L., alleged in a lawsuit backed by the New York Civil Liberties Union that officials of the Mohawk Central School District were deliberately indifferent to harassment he faced as a 9th grader in the district.

The U.S. Department of Justice had sought to intervene in the case on the plaintiff's side, citing "important issues" raised by the case in relation to the enforcement of federal civil rights laws.

The school distirct denied any wrongdoing in settling the case, but it agreed to pay $50,000 to the student, plus attorneys' fees and costs for counseling sessions. The district will review its policies regarding harassment based on sex, gender identity, and sexual orientation, and it will offer training to its staff members on identifying harassment.

The NYCLU has this statement and a copy of the settlement.

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A Mississippi school district likely violated the free speech rights of a lesbian student when it refused her permission to take her girlfriend to the prom or to wear a tuxedo, a federal district judge has ruled.

But U.S. Senior District Judge Glen H. Davidson, of Aberdeen, Miss., denied an injunction that would have required the 3,700-student Itawamba County School District to reinstate the April 2 school-sponsored prom, which was canceled March 10 amid the controversy over the request by student Constance McMillen.

Because parents have stepped forward to put on a private, inclusive prom open to all students of Itawamba Agricultural High School, "the court finds that requiring defendants to step back into a sponsorship role at this late date would only confuse and confound the community on the issue," Judge Davidson said in his March 23 opinion in McMillen v. Itawamba County School District.

Despite his refusal to grant the injunction sought by the American Civil Liberties Union on the student's behalf, the judge's preliminary ruling was that McMillen's First Amendment rights were violated.

"The record shows Constance has been openly gay since eighth grade and she intended to communicate a message by wearing a tuxedo and to express her identity through attending prom with a same-sex date," the judge said. "The court finds this expression and communication of her viewpoint is the type of speech that falls squarely within the purview of the First Amendment. The court is also of the opinion that the motive behind the School Board's cancellation of the prom, or withdrawal of their sponsorship, was Constance's requests and the ACLU's demand letter sent on her behalf."

The preliminary ruling opens the door for the case to proceed to a trial.

The ACLU has a statement on the decision, and the AP reports here.

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A federal appeals court has overturned a lower court's ruling that the state of Texas must improve its programs for English-language learners.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, held unanimously that a federal district court abused its discretion when it ruled that the state was in violation of a longtime desegregation order and a federal civil rights law.

"There was no sufficient evidence or finding of statewide de jure segregation against Mexican-Americans," the appeals court said in its March 22 decision in United States v. Texas.

Education Week's Mary Ann Zehr has been covering this case and has written a more extensive post in her Learning the Language blog.

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In a case watched closely by the student loan industry, the U.S. Supreme Court today ruled in favor of a student who had discharged his college loan interest in bankruptcy without having to prove he faced "undue hardship," as federal bankruptcy law requires.

In an opinion for a unanimous court, Justice Clarence Thomas said the bankruptcy judge had committed "legal error" in approving the discharge plan for an Arizona man, but the man's lender had notice of the plan and failed to object to it in a timely manner.

A federal procedural rule that the lender sought to use to declare the debt discharge void "does not provide a license for litigants to sleep on their rights," Justice Thomas said in United Student Aid Funds v. Espinosa (Case No. 08-1134).

"United had actual notice of the filing of Espinosa's plan, its contents, and the Bankruptcy Court's subsequent confirmation of the plan," Thomas wrote. "United therefore forfeited its arguments regarding the validity of service or the adequacy of the Bankruptcy Court's procedures by failing to raise a timely objection in that court."

The case involves Francisco J. Espinosa, an airline ramp agent in Phoenix who in the late 1980s received some $13,250 in student loans to attend trade school. In 1992, Espinosa filed for Chapter 13 bankruptcy protection, and he proposed paying $274 per month over five years to United Student Aid Funds Inc., an amount that would cover his principal but not some $4,000 in interest on the loans.

Espinosa did not initiate an adversary court proceeding to prove undue hardship, as federal bankruptcy statutes require for discharging student loan debt. Instead, the bankruptcy court in Phoenix sent a notice to United Student Aid Funds alerting it of the proposed discharge plan, and giving the lender the chance to respond. The lender did not object to the bankruptcy court's confirmation of the plan.

Later, under a reinsurance plan for the federally backed loans, the U.S. Department of Education began collection efforts against Espinosa for the outstanding interest from his student loans. Espinosa went back to the bankruptcy court, seeking it to order the creditors to cease their collection efforts. (United Student Aid Funds, a private lender based in Indianapolis, eventually recalled the loan from the federal Education Department and pursued its claims.)

Espinosa won a ruling from the U.S. Court of Appeals for the 9th Circuit, in San Francisco, that his bankruptcy plan was valid and that the lender could not collect any more from him.

When the case was argued in December, both the lender and the Obama administration expressed concerns that a ruling for the student could yield abuses in bankruptcy proceedings involving student loan debt.

Justice Thomas addressed some of those arguments in his opinion by saying that while the lender in this case could not void the approval of Espinosa's bankruptcy plan, bankruptcy judges should make sure that undue hardship exists before approving a plan that discharges student loan debt.

"To comply with [the language of federal bankruptcy law], the bankruptcy court must make an independent determination of undue hardship before a plan is confirmed, even if the creditor fails to object or appear in the adversary proceeding," Justice Thomas wrote.

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Over a strong dissent by one justice, the U.S. Supreme Court today declined to hear an appeal over whether a school district's refusal to allow a performance of "Ave Maria" at a public high school graduation was an infringement of student free speech rights.

"[W]hen a public school purports to allow students to express themselves, it must respect the students' free speech rights," Justice Samuel A. Alito Jr. wrote in dissenting from the court's decision not to hear the appeal in Nurre v. Whitehead (Case No. 09-671). "School administrators may not behave like puppet masters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings."

The case involved student Kathryn Nurre, who along with other members of a wind ensemble sought to perform an instrumental version of "Ave Maria," which translates to "Hail Mary," at the 2006 graduation ceremony of Henry M. Jackson High School in Everett, Wash. But school administrators, who had received complaints about a musical selection with religious references at a 2005 graduation, told Nurre and the wind ensemble to select a secular piece of music, which they reluctantly did.

Nurre sued the superintendent of the Everett school district, alleging that the decision censored her speech in violation of the First Amendment's free-speech clause, showed hostility towards religion in violation of the First Amendment's establishment clause, and violated her equal-protection rights.

A federal district court held that the student's rights were not violated. In a September decision, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district court. The judgment was unanimous, although one member of the panel wrote a partial dissent, saying the district violated Nurre's free-speech rights.

The appeals court majority said such cases on religious expression were always difficult for schools, and it was not ruling that religious music could never be played in public schools. But because a graduation ceremony is considered an obligatory event for the high school seniors, district officials acted reasonably in seeking to keep the musical selections secular.

"Here, the district was acting to avoid a repeat of [previous] controversy by prohibiting any reference to religion at its graduation ceremonies," Judge Richard C. Tallman wrote for the 9th Circuit majority. "District administrators recognized the evident religious nature of 'Ave Maria' and took into consideration the compulsory nature of a graduation ceremony."

Judge Milan D. Smith Jr., in his partial dissent, said the ruling could lead public schools to eliminate music "with any trace of religious inspiration" from its programs.

"The taking of such unnecessary measures by school administrators," Judge Smith said, "will only foster the increasingly sterile and hypersensitive way in which students may express themselves in such fora, and hasten the retrogression of our young into a nation of Philistines, who have little or no understanding of our civic and cultural heritage."

The student appealed the decision with the help of the Charlottesville, Va.,-based Rutherford Insitute, while the Everett School District urged the court not to take up the case.

In his dissent from the denial of review today, Justice Alito also expressed concern that the ruling below "will have important implications for the nearly 10 million public school students in the 9th Circuit," which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state.

The 9th Circuit court's logic could apply to "almost all public school artistic performances," Justice Alito wrote.

"School administrators in some communities may choose to avoid 'controversy' by banishing all musical pieces with 'religious connotations,'" he wrote.

"A reasonable reading of the Ninth Circuit's decision is that it authorizes school administrators to ban any controversial student expression at any school event attended by parents and others who feel obligated to be present because of the importance of the event for the participating students," Justice Alito wrote. "A decision with such potentially broad and troubling implications merits our review."

Such dissents from denial of review are sometimes viewed as invitations for parties in similar disputes to take their cases to the Supreme Court. Because controversies over student religious expression at graduation ceremonies have been relatively frequent, the court will likely have further opportunities to take up this issue.

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A school's placement of an autistic child in a locked isolation room for misbehavior was "a recognized educational tool" and was part of the child's special education plan, thus a parent who challenged the tactic first had to exhaust administrative remedies before suing, a federal appeals court has ruled.

The majority ruling by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, prompted a sharp dissent from one member of the panel.

U.S. Circuit Judge John T. Noonan noted in his dissent that a Washington state teacher repeatedly locked a 7-year-old child identified as D.P. "into an unventilated, dark space the size of a closet for indeterminate amounts of time, causing D.P. to become so fearful that he routinely urinated and defecated on himself."

"It is clear that [the teacher's] misuse of the isolation room serves no legitimate educational purpose, is prohibited by state administrative regulations, and was imposed as punishment," Judge Noonan wrote.

The use of the isolation room was challenged by D.P.'s mother in a federal lawsuit under the federal Individuals with Disabilities Education Act and state law. The suit sought damages for alleged mental suffering and emotional distress, as well as for alleged violations of D.P.'s civil rights.

A federal district court ruled for the school district, saying the family had not exhausted its administrative remedies under the IDEA.

In its March 18 decision in Payne v. Peninsula School District, the 9th Circuit court panel upheld the district court. The majority noted that D.P.'s individualized education plan permitted placing him for "timeouts" in a "safe room." The majority acknowledged that placement in the room led D.P. to exhibit "scholastic setbacks" and "anxious behaviors," including urinating and defecating on himself.

"The use of the safe room here was at least an attempt at an educational program," the majority opinion by Judge Cynthia Holcomb Hall. "This is not to say we condemn or endorse the manner in which the safe room was used here. Rather we believe that, as an educational strategy (even if a misguided or misapplied one), it was better addressed initially by the administrative process."

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A federal appeals court has ruled that a state prosecutor in Pennsylvania likely overstepped constitutional boundaries when he threatened a student with prosecution over alleged "sexting," the texting or Web posting of allegedly sexually explicit or suggestive images.

The decision grew out of a well-publicized incident in the Tunkhannock, Pa., school district in the fall of 2008 in which officials found that a number of male students had been trading sexually suggestive images of female students. Wyoming County District Attorney George Skumanick, who has since lost a re-election bid, announced at a school assembly that male and female students who possessed the images on their cell phones, or appeared in the images, could be prosecuted for child pornography.

Skumanick eventually threatened more than a dozen students that they would be prosecuted if they did not attend an education program in which students would have to write a report on why what they did was wrong and whether they had created "victims." Some parents objected to the prosecutor's actions, and they questioned whether some of the images, which included girls in bathing suits or in bras, were child pornography.

In a March 17 decision, a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, unanimously upheld an injunction barring the prosecution of one female student who refused to participate in the education program.

The court said there was no evidence about who transmitted the images of the girl, who was pictured in a bra in the image in question, and thus the prosecution threat amounted to retaliation for the girl's asserting her First Amendment right against compelled speech. The court further found that the 14th Amendment due process rights of parents to control the upbringing of their children was likely violated by the prosecutor.

"We agree that an individual District Attorney may not coerce parents into permitting him to impose on their children his ideas of morality and gender roles," the 3rd Circuit said in Miller v. Mitchell. While schools have a "secondary responsibility" under federal and state law in the upbringing of children, the court said, a district attorney has no such role.

The court did not rule on whether any of the images in question constituted child pornography.

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The federal Equal Employment Opportunity Commission has determined that a New York City educator ousted from her job as the interim principal of an Arabic-themed public school because of a controversial newspaper interview was discriminated against on the basis of race, religion, and national origin.

The EEOC decision came March 9 in the case of Debbie Almontaser, who was the acting interim principal of the Khalil Gibran International Academy, a public school in the city, in August 2007 when she gave an interview to the New York Post about the school. The Post's story twisted her words, Almontaser and her supporters have argued, to suggest that the administrator was sympathetic to Islamic radicals.

Amid controversy, Almontaser resigned the interim position, but later applied to become the principal of the Khalil Gibran academy. The New York City school system's refusal to hire her has prompted various legal actions.

In its determination, the EEOC said the New York City Department of Education "succumbed to the very bias that the creation of the school was intended to dispel." The department's actions likely violated Title VII of the Civil Rights Act of 1964, the EEOC said, and the commission gave the parties the chance to resolve the dispute before the agency or Almontaser could take the matter to court.

The commission determined that New Visions for Public Schools, a private group that was involved in starting the Arabic-themed academy, was not Almontaser's employer and that there was no cause to believe it discriminated against her.

The Associated Press reports here and The New York Times here.

Almontaser has already lost at several points in a separate lawsuit that charged her dismissal was unlawful retaliation in violation of her First Amendment free speech rights. On Sept. 1, a federal district judge in New York City granted summary judgment to the school system on Almontaser's speech retaliation claim, which I blogged about here.

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A federal appeals court today upheld teacher-led recitations of the Pledge of Allegiance in public schools.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled 2-1 to reject a challenge by atheist parents that subjecting their children to the pledge with its inclusion of the words "under God" amounted to an unconstitutional government establishment of religion.

"We hold that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge--its wording as a whole, the preamble to the statute, and this nation's history--demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase 'one Nation under God' does not turn this patriotic exercise into a religious activity," said the March 11 opinion by U.S. Circuit Judge Carlos T. Bea in Newdow v. Rio Linda Union School District.

The suit was organized by Michael A. Newdow, a California atheist and lawyer who had challenged the pledge in his own daughter's school district in 2000, leading to a highly controversial ruling by a 9th Circuit panel in 2002 that teacher-led recitations violated the establishment clause. The U.S. Supreme Court reviewed the decision, but by that time Newdow's ex-wife had intervened in the case to argue that he didn't have custody of the daughter.

The Supreme Court ruled in 2004 in Elk Grove Unified School District v. Newdow that because he did not have custody, the father lacked standing to fully represent his daughter's interests, and it held that the 9th Circuit should not have reached the merits of the case. The five justices who signed on to that opinion expressed no views on the basic constitutional question. Three members of the court--Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas--wrote opinions expressing the view that Newdow did have standing and that they would have gone on to uphold the pledge in schools. Justice Antonin Scalia did not participate in the case. (See Education Week's preview and decision stories.)

The new suit included as a plaintiff an atheist mother, identified in court papers as Jan Roe, who objected to her daughter's exposure to the pledge in public school. The suit challenged not only Congress's 1954 addition of the words "under God" to the pledge, but also a California state law requiring schools to start the day with an "appropriate patriotic exercise," and the district's policy of requiring teachers to lead willing students in recitations of the pledge.

The dissenter in the new case is U.S. Circuit Judge Stephen Reinhardt, who wrote the panel decision striking down pledge recitations in the earlier case.

"History leaves no doubt that Congress inserted the words 'under God' in the Pledge of Allegiance in order to inculcate in America's youth a belief in religion, and specifically a belief in God," Judge Reinhardt said in a 136-page dissent. "It is equally clear that the daily, state-sponsored, teacher-led recitation of the 'under God' version of the Pledge in public schools, institutions in which First Amendment rights are most in need of vigilant protection, violates the Establishment Clause, under any legal analysis in which this court may properly engage."

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The U.S. Supreme Court today declined to hear the appeal of the Boston Teachers Union over a state court injunction requiring union leaders to disavow the union's call for a vote on a one-day strike.

The BTU argued in court papers that actions by the Boston school system, the Massachusetts Commonwealth Employment Relations Board, and state courts violated its First Amendment free speech rights. At issue was a motion by the union's executive board to put before its membership "for discussion, consideration, and debate" a one-day strike on Feb. 15, 2007.

The Boston School Committee asked the state employment commission to investigate whether the union's rhetoric violated a state law barring strikes by public employee unions. Both the commission and a state court required the union to disavow the strike talk. The commission ruled that the union's rhetoric started in motion a move toward an illegal strike. A state trial court issued an injunction calling for union leaders to disavow the strike talk and assessing $30,000 per day fines for failure to comply. The union never held a general meeting to authorize a strike, and no one-day strike occurred.

In its appeal to the Supreme Court, the BTU said that just because it is lawful for states to prohibit strikes by public employees, that does not mean labor regulators have "carte blanche" to restrict a union's free speech rights to prevent a strike from occurring.

"Restraining a union's leadership from expressing frustration with the progress of contract negotiations to its own members is a direct assault on the First Amendment," said the union's brief.

The justices declined without comment to hear the union's appeal in Boston Teachers Union, Local 66 v. Commonwealth Employment Relations Board (Case No. 09-770).

Separately today, the court granted review in a case that has been watched in education circles, particularly among contractors of the U.S. Department of Education.

The justices accepted an appeal from NASA over a government-wide policy of requiring extensive background checks for employees working for government contractors. In a challenge brought by contractors at the space agency's Jet Propulsion Laboratory at the California Institute of Technology, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled last June that challengers were likely to succeed on their claims that the background checks violated their constitutional right to "informational privacy."

The Obama administration's appeal in National Aeronautics and Space Administration v. Nelson (No. 09-530) will be argued during the court's next term.

Education Week has reported here and here about concerns about the background checks among Education Department contractors.

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The Kamehameha Schools of Hawaii, a multi-campus private school, have seemingly been under constant legal attack for their policy of admitting only native Hawaiian students. Native Hawaiians are defined as those having any ancestry that can be traced to the indigenous population before the first landfall of Westerners in 1778.

In 2006, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the Kamehameha Schools' admission policy against a challenge under federal civil rights laws. But when the non-native student who had filed that suit appealed to the U.S. Supreme Court, the schools decided to settle the case, for a reported $7 million.

A suit challenging the admissions policy by other non-native students was filed in 2008, but this time, the schools objected to the plaintiffs' attempt to remain anonymous. A federal district court ruled that prejudice to the defendants and the public's interest in open courts outweighed any fear of potential harm to the plaintiff. The suit was dismissed, but the anonymous plaintff was given permission to appeal.

In a Tuesday decision, a three-judge panel of the 9th Circuit court upheld that decision. The panel said the lower court did not abuse its discretion in rejecting the plaintiff's request to remain anonymous, even though other applicants who have challenged the schools' policy have been subject to threats. (There is considerable sentiment among many native Hawaiians that the Kamehameha Schools should not be open to non-natives, the court noted.)

"We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts," said the unanimous decision in Doe v. Kamehameha Schools.

The ruling is interesting because anonymous litigation is fairly common in education, especially in areas such as special education suits over such hot-button issues as religion in public education.

The appeals court in this case said that had the lower court "found that anonymity
was appropriate, we likely would have concluded that the district court did not abuse its discretion. Or, were we permitted to make findings and weigh the factors anew, we might
have held that anonymity here was appropriate."

But after applying the appropriate 9th Circuit precedents, the appeals court panel felt obliged to uphold the district court.

As I have noted before, I would be perfectly happy to travel to Hawaii to get to the bottom of this never-ending story, if only my editors would send me there.

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Two years ago, when the U.S. Supreme Court was considering the constitutionality of the District of Columbia's ban on handgun possession, the Chicago board of education joined a friend-of-the-court brief urging the justices to uphold the ban.

The nation's third-largest school system told the court in that case that 29 Chicago students had been killed in firearm-related violence in the previous year (though mostly on the streets, not in schools), and that thus the justices should be mindful it was "imperative" that states be free to regulate firearms.

In its 2008 decision in District of Columbia v. Heller, the court ruled 5-4 that the Second Amendment protected a Washington resident's right to possess a gun unconnected to the militia. But since Heller involved the nation's capital, a federal enclave, the ruling left open the question of whether the Second Amendment would be applied to the states--or "incorporated," in constitutional parlance.

The court took up that question today in McDonald v. City of Chicago (Case No. 08-1521). And since the new case involves handgun bans adopted by Chicago and a suburb, Oak Park, Ill., it was no surprise that the Chicago school system again felt the urge to speak up to the justices.

"Gun violence has a profoundly negative impact on the educational opportunities of children in large urban centers like Chicago," says the school system's brief on the side of the city of Chicago. "Children who live in terror of gun violence find it difficult to shed that fear at the schoolhouse door. They struggle to concentrate on their schoolwork and some see no reason to study, doubting they will live to adulthood. Gun violence also imposes extraordinary burdens on school administrators, teachers, and security personnel, who must be vigilant to keep guns out of schools and to keep children safe during the school day."

Curiously, like its brief two years ago, the school system's brief in McDonald also says that 29 Chicago schoolchildren had been killed in gun-related violence in the previous year, the exact same tally as the year preceding its brief in Heller. And both briefs noted that since 2000, "more than 100 guns have been confiscated on school grounds." (Some cutting and pasting between briefs, perhaps?)

The school system's brief was one of dozens filed on both sides of the case.

In the Supreme Court today, the focus was on lofty constitutional arguments surrounding the "incorporation" question and not so much on practical concerns or statistics. It appeared highly likely that the court was prepared to incorporate the Second Amendment to the states, although even some of the court's conservatives, who made up the majority in Heller, suggested that such a move would not necessarily mean that the states wouldn't still have some leeway to regulate firearms.

The question of gun regulation is "still going to be subject to the political process if the court determines that [the Second Amendment] is incorporated in the [14th Amendment's] due-process clause," Chief Justice John G. Roberts Jr. told the lawyer representing the city of Chicago.

Justice Ruth Bader Ginsburg, who was in the minority in Heller, at one point today sought to remind everyone that the majority opinion in that case, by Justice Antonin Scalia, "allowed for reasonable regulation, and it gave a few examples."

She got sidetracked before she got to those examples, but she probably had in mind Justice Scalia's statement in Heller that the ruling "should not be taken to cast doubt on long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."

The case is expected to be decided by late June.

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