2016 Summer Law Conference School Law: A Year in Review Part II - PDF document

The N EW Y ORK S TATE S CHOOL B OARDS A SSOCIATION presents 2016 Summer Law Conference School Law: A Year in Review Part II First Amendment and Social Media • Pubic employees don’t surrender all of their 1 st Amendment rights merely because of their employment status. • When citizens enter public service, they by necessity must accept certain limitations on their freedoms. • Is the employee speaking as a citizen (not as an employee) and does the speech involve a matter of public concern ? If yes, courts with balance interests. Munroe v. Central Bucks SD (teacher speech) • Teacher blog: “Where are we going, and why are we in this handbasket.” • Only meant to be viewed by friends. • Did not identify where she worked or lived – did not identify the name of her school or the names of her students. • She occasionally wrote about her co-workers, administration, her students and their parents. 1

Offered comments she would like to see added to the comment list used for fill out students’ report cards. • Two words come to mind: brown AND nose. • Dunderhead. • Nowhere near as good as her sibling. Are you sure they’re related? • Rat-like. • Sneaking, complaining, jerkoff. • Utterly loathsome in all imaginable ways • There is no way to say this: I hate your kid. • Teacher placed on paid suspension. • “Fevered reactions” of students and their parents. • The district received over 200 “opt out” requests from parents. • Story picked up by internet news site and teacher appears on ABC, CBS, NBC, CNN, Fox News and other stations. • Ultimately terminated by district. • Lower court: district did not violate her constitutional right to free expression. • Third Circuit: reluctantly assumed that her speech satisfied the “public concern” requirement. BUT speech not constitutionally protected because balancing test weighed in favor of district. 2

Bell v. Itawamba (off-campus student speech) • Tinker : Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” • Students do not forfeit their First Amendment rights to freedom of speech and expression. Conduct which materially disrupts classwork or involves substantial disorder or invasion of the rights of others is not protected. • Student posted rap recording on his public Facebook profile page and later on You Tube. Alleges misconduct against female students by coaches. • Contained at least four instances of threatening, harassing, and intimidating language against the coaches. • Suit claimed that he was disciplined in violation of the First Amendment. • Issue: How, if at all, does Tinker apply to off-campus conduct? 3

• Court: Tinker applicable when a student intentionally directs at the school community speech reasonably understood by school officials to threaten, harass, and intimidate a teacher – even when the speech was disseminated off-campus without use of school resources. CPS (on-campus interviews) • Social Services Law Section 425 – Basis for school districts to allow CPS workers to interview students on school grounds? • 1979 SED guidance memorandum – school should adopt policies allowing the interviews on school grounds. Phillips v. County of Orange • Involved a multidisciplinary team that was permitted to interview a five year old child at school. • Multidisciplinary team consisted of CPS caseworker and police officer. 4

• MDT interviews child. • Superintendent allows the interview. • School district had a practice that permitted CPS interview on-campus. • Family sued various entities including the school district for violations of the Fourth Amendment. • Did the interview at school by the MDT violate the student’s 4 th Amendment rights? • Court concludes that their was a seizure for 4 th amendment purposes. • Court also concludes that there was no “probable cause” for the seizure. • Court denies the district’s summary judgment motion. Emergency Regulation • 18 NYCRR 432.3(i): Access includes conducting an interview of child without a court order or the consent of the parent or guardian when CPS encounters circumstances that warrant interviewing the child apart from the family or the home. 5

Special Education • T.K. v. NYC Dep’t of Educ.: Student became the target of bullying by classmates. The bullying allegedly affected her academic and non- academic development. • Family’s attempts to raise the issue of bullying with the school were consistently rebuffed. • School refused to discuss the bullying issue during the development of the IEP. Student parentally placed in a private school. • Issue: Whether the district denied the student a FAPE by refusing to discuss bullying with the parents during the IEP development process? • Answer: Yes, district denied a FAPE by refusing to discuss an issue that may substantially interfere with a child’s learning opportunities. • Requirements resulting from T.K .: 1.Where there is a legitimate concern that bullying will severely restrict a disabled student’s educational opportunities – must consider evidence of bullying in developing an IEP. 2.Where there is a substantial probability that bullying will severely restrict a disabled student's educational opportunities - an anti-bullying program is required to be included in the IEP . 3.If the school addresses bullying in an IEP, it may not do so in abstract terms. 6

Policy Memorandum 122r3 • Plainview-Old Bethpage Congress of Teachers v. NYS Health Ins. Plan (2016 WL 3190160): Civil Service Policy Memo 122r3 - put limitations on district health insurance buyout programs. • Proceedings filed that challenged memo 122r3. • Cases dismissed by the Third Department as time-barred. • Third Department: concludes that policy memorandum 122r3 constitutes a “rule or regulation” within the meaning of the law. • “As such, it is invalid and without effect until it is filed with the Department of State.” • Statute of limitations never began to run on claims. • New legislation? Immunization (religious exemption) • Appeal of N.C . (Dec No. 16,805): had a “change of heart and mind on the subject” after speaking to a friend who told her that vaccination “goes against the Christian faith.” • Final straw: “a number of vaccines contain cells from aborted fetuses” and “abortion is … considered a mortal sin and is[an] abhorrent act to any Christian.” 7

• District denied her request - submissions were inadequate and failed to substantiate a genuine and sincere religious belief which is contrary to immunization. • She provided a link to the CDC website which provides a list of ingredients in vaccinations, including MMR#2 –indicating that the vaccine uses human cell cultures that were isolated from an aborted fetus. • Religious exemption granted. District Elections • Appeal of Williams (Dec. No. 16,900): Petitioner (585 votes) challenged incumbent board member (599 votes). • Several irregularities were alleged including the claim that district resources were improperly used to promote 2 candidates. • Claimed that the Teachers Association used the district’s email system to encourage district employees to vote for two candidates, to volunteer with flyer distribution and to vote in favor of the budget. • District submitted affidavits from the superintendent and two candidates stating that they were unaware of the Association’s use of the district’s email system prior to May 19, 2015. 8

• While a BOE may disseminate information “reasonably necessary” to educate and inform voters, it cannot “exhort the electorate” to cast their ballots for a particular position. • Even indirect support , such as giving a PTA access to its established channels of communication to espouse a partisan position has been deemed improper. • Commissioner dismissed the appeal. • No evidence that the board knew about or sanctioned the email. • Admonished the board “to review its policies on elections and the use of the district’s resources to ensure that adequate safeguards are in place to prevent improper partisan political activity.” Opt-Out Decisions • Appeal of a Student with a Disability (Dec. No. 16,835): District’s view was that it was legally required to administer state assessments. Did not provide alternate locations for students who refused to complete their tests, did not permit students to bring reading material. Parents challenged the district’s practice of making the opt out students “sit and stare” during the tests. 9

• Regulations specifically require school districts to annually administer certain state assessments in certain grades. • There exists no authority for parents to opt their children out of participation in required state assessments. • Districts have discretion, but are not required, to permit students to read silently if they finish the test before the time expires. 3020-a (unemployment) • Parke R. Brown v. Erie 2 BOCES: BOCES initiated disciplinary charges. Hearing officer found the employee guilty of a number of charges and directed a period of suspension without pay. • The employee applied for and received unemployment benefits for the suspension period. • Court concluded that the employee was “totally unemployed.” • Court, however concluded that the facts “leave no question that claimant committed disqualifying misconduct.” • Fact-sensitive – not every suspension or termination will result in disqualifying misconduct. 10