STUDENT FREE SPEECH

Posted on January 19, 2012 by admin

During our 2011 Summer Administrative Academy, we discussed several cases regarding students’ freedom of speech rights in regard to online/electronic communications.  Two recent cases, Layshock v. Hermitage Sch. Dist., and J.S. v. Blue Mountain Sch. Dist., were of particular interest and it was highly anticipated by the legal community that the cases presented the Supreme Court with the opportunity to review this issue. 

These cases present all too familiar scenarios for today’s school administration.  In both Layshock and JS, the students berated a teacher or administrator off-campus in an online forum, MySpace.   The students verbally attacked their principals by creating fake and offensive MySpace Profiles for them.  The students were disciplined for their conduct and they then sued the school districts arguing that their constitutional right to free speech had been violated.  The students were successful. The Third Circuit vacated earlier panel opinions and issued en banc rulings in both cases in June, 2011, both of which went against the school district.  The Third Circuit relied upon the Tinker standard that has been ever present since its inception for Layshock but failed to state that Tinker applied to JS at all.  The Court, in regard to Layshock, determined that the district had not established a sufficient nexus to the school as required by Tinker.  However, in JS, the Court failed to hold that Tinker even applied and instead ruled that the district failed to demonstrate a reasonable forecast of disruption to the school as a result of the communications. The Court further stated that test under Bethel Sch. Dist. No. 403 v. Fraser was inapplicable as the communications were made off-campus.

The Supreme Court was requested to review these decisions as many were encouraged that this was a golden opportunity to review the standards in which these particular types of cases are adjudicated under.  However, despite the requests, the Supreme Court once again passed on the opportunity for such review.  As such, it appears for now that we maintain the status quo under Tinker and are left to question if Fraser does or does not apply.  So, as hopeful as we were that the Court would take the opportunity for review, it appears that we have to hang on hope in that perhaps the next time around the Court will seize the opportunity.

Posted in All, Amy J. Lucenti | Comments Off

THE COURT OF APPEALS MORE CLEARLY DEFINES THE PERSONAL PRIVACY EXCEPTION IN THE FREEDOM OF INFORMATION LAW

Posted on October 28, 2011 by admin
We all know that the Freedom of Information includes a personal privacy exemption. The exemption permits a State agency or local government to withhold information which if disclosed would constitute an unwarranted invasion of personal property . . . [Public Officers Law § 87(2)(6)]. Medical records and home addresses are the records most often withheld using the personal privacy exemption.
 
What if the requested record includes information subject to the personal privacy exemption along with other information which is clearly subject to disclosure under the act? In Matter of Schenectady County SPCA v. Mills (decided October 26, 2011) the Court of Appeals rejected the Education Department’s argument that because the record contained some information subject to the personal privacy exemption, the entire record can be withheld. In so doing, the Court cited well known precedent for the position that agencies and local governments must redact the exempt information when a requested record contains both exempt and non-exempt materials.
 
Our State’s highest court concluded the opinion with an uncharacteristically stern rebuke of the Education Department’s position in this case. Judge Smith writing for the unanimous court said:
 
We are at a loss to understand why this case has been litigated. It seems that an agency sensitive to its FOIL obligations could have furnished petitioner a redacted list with a few hours effort, and at negligible cost. Instead, lawyers for both sides have submitted briefs and argued the case in three courts, demanding the attention of 13 judges, generating four judicial opinions and resulting in a delay in disclosure of almost four years. It is our hope that the Department, and other agencies of government, will generally comply with their FOIL obligations in a more efficient way.

The message is very clear: Redact and disclose.

 
 

 

 

  
Posted in All, John P. Lynch | Comments Off

Its back to school time-let’s talk bus stops.

Posted on August 23, 2011 by admin

On August 8, 2011 the Commissioner of Education re-affirmed a districts ability to determine the bus stop locations for its students. In Decision No. 16280, the petitioner appealed the districts decision to deny her request to change the location of the bus pick up point for her kindergarten student. The petitioner opines that the current pick up point is dangerous and unsafe and pursuant to board policy, petitioner sought review of the determination by a sub-committee of the district’s health and safety committee.　 The committee met to review the bus stop and used　a “child safety zone” analysis that considered road conditions, traffic volume, speed limit and traffic controls.　 To qualify as a child safety zone for grades kindergarten through eight, a score of 12 or more is needed and　the committee’s bus stop analysis resulted in a score of five.　

The Commissioner upheld the districts refusal to move the pick up point and stated:

A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789).　 In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Petrella, 48 id. 45, Decision No. 15,789).　 The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc 2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Girsdansky, 46 Ed Dept Rep 105, Decision No. 15,455).　 Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point.　 It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of Brizell, 48 Ed Dept Rep 128, Decision No. 15,814; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770).

This reaffirms that the Commissioner of Education will uphold a district’s determination such as this unless it is arbitrary, capricious, unreasonable or an abuse of discretion.

Posted in All, Amy J. Lucenti | Comments Off

Does it Count?

Posted on May 9, 2011 by admin

With budget votes right around the corner, some Districts and community members may worry about voter turn out. Did enough voters turn out? Does the vote count if very few voters came to the polls to cast their vote? The answer is yes. In New York, here is not a requirement for a minimum percentage of eligible voters required in order to approve a districts budget. Moreover, according to the commissioner of education, abstentions are irrelevant in determining the number of qualified voters present and voting in a district wide election or referendum. In one case, 2,272 voters signed the voter register. Of those, 1,109 voted yes for a particular proposition, while 1,076 voted no. The commissioner ruled that the proposition was approved by a majority of the qualified voters present and voting, even though 87 of the people who signed the register did not vote on the proposition (see Appeal of Gibeau, 30 Ed Dept Rep 279 (1991)).

Posted in All, Amy J. Lucenti | Comments Off

Roslyn, the Gift that Keeps on Giving: Extended Liability of Board Members and Officers for fraud and other claims by the District.

Posted on May 4, 2011 by admin

On May 3rd, 2011, New York’s Court of Appeals issued a decision which greatly extends the time to 6 years, in which a School District may sue a current or former board member or other officer for claims they breached their fiduciary duty to the District, committed fraud or negligence against the District and other claims of restitution.   This case is another child of the Roslyn School District fiasco.

The facts as the Court recites them are as follows:  In 2000, a board member was elected for a single term, ending in 2001, before any illegality was discovered.  In 2002 the District’s accountants found money to be missing, and the current Board allowed the assistant superintendent to resign and pay back the money she had misappropriated.  In 2004 law enforcement arrested the assistant superintendent and superintendent for looting the school of approximately 7 million dollars.  Thereafter the Comptroller performed a forensic audit and found that between 1998 and 2004 $11 million had been misappropriated from the School by two dozen school officials.   In 2005 the School District sued former board members, including the one above for breach of fiduciary duty and negligence in permitting the school’s employees to misappropriate the money.

The Board member claimed the School was late because the general 3 year statute of limitations for negligence applied. (CPLR 214(4)).   The School claimed that the school was a corporation, that the special 6 year statute of limitations against a corporation’s officers applied (CPLR 214(7)), and that the board member had served during the time misappropriation was occurring.

The Court resolved the problem in a classic school taught fashion, it looked up the definition of “corporation”.   The Court stated that General Construction Law §65(a)(1) defined “corporation” to include a “public corporation”, that §65(b)(1) defined “public corporation” to “municipal corporation” and that §66(2) defined “municipal corporation” to include “school districts”.    The Court allowed the suit to proceed against the former board member.

Therefore, a school district is a corporation within the meaning of CPLR 214(7) and may sue its officers for many claims, including breach of fiduciary duty and negligence within 6 years. 

Posted in All, James A. Gregory | Comments Off

CPS INTERVIEWS AND THE US SUPREME COURT

Posted on March 4, 2011 by admin

On March 1, 2011, the United States Supreme Court heard arguments in two cases that could have far-reaching impact in the way child protective workers carry out their duties at school. Currently, under New York law, a child protective worker may interview a child at school by invoking Section 425 of Social Services Law. The law requires all agencies of the State, including school districts, to cooperate with CPS in carrying out the purposes of the act. We have counseled our clients to secure from the CPS worker a written statement saying that the child must be interviewed at school to carry out the purposes of the Act. No other Court orders or legal formalities are required.

All that may change depending on how the Supreme Court rules in Camreta v. Greene and Alford v. Greene. The issue in the cases is simple enough; does a child protective services worker need a warrant before interviewing a child at school about allegations of sexual abuse?

The United States Court of Appeals for the Ninth Circuit (the Federal Appeals Court serving the West Coast and the Rocky Mountain states) says a warrant is required to interview a student outside the presence of the parent in most circumstances.

If the court affirms the Ninth Circuit ruling schools may be left in the position of having to ask for and review a warrant whenever CPS workers request a student interview. Moreover, if the ruling is affirmed, then the CPS workers will no longer be able to obtain interviews with students merely by filing with schools the statement invoking the Social Services Law.

Posted in All, John P. Lynch | Comments Off

AIS –Hurry up and Waive

Posted on December 4, 2010 by admin

AIS is temporarily no longer required for 4th- 8th Graders who score below 3/proficient but above 650 scaled on their English and math assessments. The Department of Education passed it’s second round of emergency rule making, effective November 10th, 2010, extending various exemptions to its AIS requirements due to changing the “cut scores” of the English and math assessments in July 2010, which qualified many new students for mandated AIS services despite simultaneous severe fiscal cutbacks at schools.

Therefore, for the 2010-2011 years only:

1) 4th- 8th Graders who score below 3/proficient but above 650 scaled on their English and math assessments are not required to receive AIS unless the district deems it necessary.

2) Each District must develop a uniform process by which it determines whether to offer AIS to the students who scored within the above range on their 2009-10 assessments, and post a description of the process on it’s website or distribute it to parents.

3) Schools are exempted from their biannual requirement to review and revise the District’s description of AIS based upon student performance results.

Note: The previous emergency rule’s deadline for posting the process in #2 above “no later than the first day of instruction” remains. Therefore if you haven’t posted or distributed your process yet, we recommend you do so immediately. If you have already done so, we do not believe the rule requires a new posting.

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Shots, Shots, and More on Shots!!!!

Posted on October 4, 2010 by admin

In order to attend public schools, children must be vaccinated in accordance with Public Health Law and New York State Education Law. However, there are some exceptions. One of the most commonly known exceptions to immunization is the religious exemption. In May of 2010, a U.S. District Court decision reiterated the requirements for such an exemption. In Caviezel vs. Great Neck Public Schools, et al., the parents of four school-aged children were denied a religious exemption for their youngest child. The three older children received the vaccinations as required.

Now only five months later the Commissioner of education addressed this issue in Decision No. 16,163. The parent in this particular case applied for the exemption based upon religious belief and stated that some vaccines were derived from material retrieved from unborn fetuses. In Decision 16,163, the Commissioner restated the qualifications for the religious exemption for immunizations:

The determination of whether petitioner qualifies for a religious exemption requires the careful consideration of two factors:　 whether her purported beliefs are religious and, if so, whether such religious beliefs are genuinely and sincerely held (see Farina v. Bd. of Educ. of the City of New York, et al., 116 F Supp 2d 503).　 It is not necessary for persons to be members of a recognized religious organization whose teachings oppose inoculation to claim the statutory exemption (Sherr, et al. v. Northport-East Northport UFSD, et al., 672 F Supp 81).　 However, the exemption does not extend to persons whose views are founded upon medical or purely moral considerations, scientific or secular theories, or philosophical and personal beliefs (Farina v. Bd. of Educ. of the City of New York, et al., 116 F Supp 2d 503).He further states that the reasoning against immunizations in this particular case was characterized by the evidence that the “pivotal” factor underlying petitioner’s opposition to immunization was actually the injection of “genetic material of aborted fetuses into my child . . . utiliz[ation of] a medical procedure that profits from the abortion upon healthy human fetuses.”Although the Commissioner stated there is no doubt on this record that petitioner sincerely objects to immunizations, but the crux of the issue is whether the reason for her objections are religious or predominantly philosophical, personal, medical or ethical in nature (see Caviezel v. Great Neck Public Schools, et al., 701 F Supp 2d 414 [EDNY 2010]). He further stated that “While petitioner’s opposition to the use of fetal tissue may be based on her religious beliefs, she seeks an exemption from all vaccines, irrespective of whether they derive from fetal material.　 This position undercuts her argument that her opposition to immunization is actually religious in nature.“　

This decision reiterates the need to examine the totality of the circumstances in order to determine whether or not an individual qualifies for the religious exemption as provided by Public Health Law § 2164.

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Dignity for All Students Act

Posted on September 4, 2010 by admin

It has been widely reported that on September 8, 2010, Governor Paterson signed into law the “Dignity for all Students Act.” The new law begins with this statement of legislative intent:

The legislature finds that students’ ability to learn and to meet high academic standards, and a school’s ability to educate its students, are compromised by incidents of discrimination or harassment including bullying, taunting or intimidation. It is hereby declared to be the policy of the state to afford all students in public schools an environment free of discrimination and harassment. The purpose of this article is to foster civility in public schools and to prevent and prohibit conduct which is inconsistent with a school’s educational mission.
 

A fuller treatment of the new law and the duties it imposes on school districts will be the subject of a forthcoming legalgram from this office. We want to focus here on one aspect of the legislation.

The Act requires school districts to adopt policies and guidelines that are intended to create a school environment that is free from discrimination or harassment… The policies and guidelines must be in place by July 1, 2012.

The Act also requires the Commissioner of Education to provide direction, which may include the development of model policies to assist school districts in the implementation of the Act. In the meantime, while we await the model polices, the New York State Department of Education released a document dated August 27, 2010, entitled “Guidance on Bullying and Cyberbullying.” The publication may assist districts in developing the policies and guidelines now required by the Dignity for all Students Act. In the words of the document itself,

This guidance provides educators with policy, program, and legal considerations that need to be addressed when dealing with the issues of bullying, cyberbullying, and general internet safety. It is also designed to assist school districts and their respective schools, BOCES, and County Vocational Education and Extension Boards (CVEEBs) in developing a comprehensive approach for dealing with these issues, which, if left unaddressed, can lead to the creation of unsafe school environments. 
 

 The publication contains legal information, references to outside information on bullying prevention and a discussion on funding to assist in the development of policy, programs, and training on these issues. The guidance document is certainly worth a look. You can find it here:

http://www.emsc.nysed.gov/technology/internet_safety/documents/cyberbullying.html

Posted in All, John P. Lynch | Comments Off

Homeless Students Are Hard To Find

Posted on August 12, 2010 by admin

 

Despite the fact that certain departments at the New York State Education Department would have schools believe that almost every student is homeless, the Commissioner of Education has rarely determined a student to be homeless. This trend has continued under Commissioner Steiner.

In a recent decision entitled Appeal of L.P., Decision No. 16,107, Commissioner Steiner stays the course by determining that a young girl living with her grandmother is not homeless. In Appeal of L.P., the student, J.H. was living with her grandmother in the North Babylon Union Free School District. J.H.’s mother lived in South Carolina and had moved three times in the last year. L.P., the grandmother, took possession of the student because the mother’s living conditions were not suitable for J.H. and because the mother moved too frequently. L.P. felt that the student needed more stability that the parent could provide and agreed to take the student on a temporary basis for three or four years.

First, L.P. attempted to enroll the student as a resident student. When the District refused because the student’s residence was with the mother in South Carolina, L.P. then claimed the student was an unaccompanied minor and homeless. As required, the District enrolled the student for 30 days as a homeless student and conducted a homelessness hearing. After the hearing, the District determined that the student did not qualify as a homeless student because the student had a fixed nighttime residence and was accompanied by her grandmother. The grandmother appealed the District’s determination to the Commissioner.

After reviewing the facts surrounding L.P. and J.H.’s claim of homelessness, Commissioner Steiner determined that McKinney Vento did not apply stating:

Moreover, other than petitioner’s conclusory allegations that J.H.’s mother is experiencing economic hardship, that J.H. would have a more stable environment with her and that J.H. lacked proper sleeping arrangements at her mother’s residence, there is no evidence in the record that J.H.’s mother’s residence is inadequate, temporary or transitional.　 In fact, petitioner stated at the hearing that J.H.’s mother resides in a two bedroom apartment with J.H.’s brothers in South Carolina and there is no evidence that J.H.’s mother needs to vacate this residence.　 There is also no evidence that J.H. was forced to leave her mother’s residence in South Carolina due to lack of adequate housing or that she is sharing the housing of another due to loss of housing, economic hardship or similar reasons rather than her mother’s and petitioner’s preference that she reside with petitioner instead of with her mother.　 Consequently, the provisions of Education Law §3209(2) and McKinney-Vento regarding choice of district for homeless children are not applicable in J.H.’s circumstances (see　Appeal of D.R., 48 Ed Dept Rep 60, Decision No. 15,793;　Appeal of N.W., 47　id. 87, Decision No. 15,635,　Appeal of G.D. and T.D., 45　id. 191, Decision No. 15,298).

Appeal of L.P.is not an anomaly. The Commissioner of Education has routinely dismissed claims of homelessness because the students are not truly homeless and thus protecting the true spirit of McKinney Vento.

 

Posted in All, Wendy K. DeWind | Comments Off