Indiana Association of Public School Superintendents

May 2010 Legal Issues


Student Rights & Discipline

Arkansas Supreme Court upholds school officials’ confiscation of student’s cell phone

The Arkansas Supreme Court has ruled that a teacher and principal who confiscated and retained a student’s cell phone did not violate the student’s rights under either state or federal law. Nancy Adams, a teacher at Sylvan Hills High School (SHHS), learned that one of her students, Anthony Koch, had a cell phone in the classroom in violation of Pulaski County Special School District (PCSSD)’s student handbook. Pursuant to PCSSD’s disciplinary regulations, Adams confiscated the phone. Before turning it over to her, Koch asked to remove the phone’s SIM card on which personal information was stored. Adams denied the request and Koch handed over the phone. The phone was then given to Principal Danny Ebbs for storage. Koch subsequently demanded the phone be returned, but the phone remained in PCSSD’s possession for two weeks pursuant to its policy. Koch filed suit against Adams and Ebbs in state court. The suit alleged that Adam’s wrongful taking of his cell phone constituted conversion and trespass to chattels (suits alleging deprivation of , or interference with, personal property). In addition, Koch alleged the unlawful taking of private property without due process. The trial court dismissed Koch’s claims.

The Arkansas Supreme Court affirmed the lower court. Because the trial court considered matters outside the pleadings in granting the motion to dismiss, the supreme court treated the motion as one for summary judgment. It noted that summary judgment is appropriate when there are no issues of material fact. The court found that Koch’s argument was essentially that “ any ‘taking’ by state actors requires a state law expressly authorizing such a taking and that due process must be provided.” He contended that because state law does not specifically authorize school officials to seize students’ cell phones, SHHS officials exceeded their authority when they confiscated Koch’s phone. The court concluded, based on long-standing legal principle, that it could not consider Koch’s argument because he failed to cite authority to support it.

The court also rejected Koch’s argument that state law only provides for suspension or dismissal as possible punishments for a cell phone violation; therefore, confiscation is not permitted. The supreme court found that the state law cited by Koch was “plainly not exhaustive with respect to potential penalties for violating school policies.” “If the School District were permitted to impose only penalties that were expressly mentioned in the statute, as suggested by Koch, the word “including” in [the law] would be rendered superfluous.” In addition, it found without merit Koch’s contention that there other “less restrictive” means of enforcing the cell phone ban. It stressed that the supreme court “has long held that in Arkansas, ‘broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools’ and courts have ‘no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it.’” The supreme court, likewise, dismissed Koch’s due process claim on the grounds the he had produced no authority to support his “underdeveloped” argument that he had the requisite property interest in possessing a cell phone at school to trigger due process rights.

Koch v. Adams, No. 09-829 (Ark. Mar. 18, 2010)

Editor’s Note: In May 2007, A state trial court in New York upheld the New York City Department of Education’s policy prohibiting students from bringing cell phones to school without permission. The lawsuit was brought in 2006 by parents who charged that the policy violates students’ constitutional rights. The suit argued that a ban on use, not possession, of cell phones in school would be sufficient and appropriate, but that the outright ban lacked a rational basis and violated parents’ and children’s rights under state and federal constitutions to communicate with each other. The court noted that there is no state or federal “constitutional right to bear cell phones,” and found that the Department’s ban did not unlawfully interfere with student-parent communication. A summary of the decisio! n is available below.

Bill to limit the use of seclusion and restraint in Wisconsin schools stalls

Facing opposition from school administrators and teachers, the prospects for legislation to limit when Wisconsin students could be physically restrained or secluded in time-out rooms appear to be fizzling out in the state capitol, according to the Milwaukee Journal Sentinel.

Time is running out in the current legislative session, with the state Assembly's education committee yet to take any action on a bill that would require school staff training in alternative measures and mandate reporting when students are restrained or secluded in emergency situations. A recent state Senate hearing showed the deep divide between disability groups, which argue a law is necessary to halt the improper use of possibly psychologically damaging techniques on children, and education groups, which worry that a law would stop teachers from taking necessary measures to stop children from harming themselves and others. The federal government already has taken steps to limit the use of restraint and seclusion in schools, which studies have found are most likely to be used on children with disabilities like autism, bipolar disorder, attention deficit hyperactivity disorder, anxiety or depression. The U.S. House of Representatives recently passed a bill that would prohibit certain seclusion and restraint techniques, although the measure's fate in the U.S. Senate is uncertain.

Additionally, the U.S. Department of Education has told schools they will need to report annually on their use of such practices, said Gary Myrah, director of special services for the Port Washington-Saukville School District. The possibility of federal intervention is a reason Wisconsin should not pass legislation that might have to be altered later, he said. Myrah also said he worries about the unintended consequence of putting limits on how teachers and other school staff can deal with children who have behavioral problems.

"If these restrictions are placed on schools, the potential outcome of someone's interpretation will be (to) just keep the students out of the general population so they can deal with their meltdown on their own," he said. Forbidding restraint and seclusion except for emergency situations creates too much doubt about what teachers can reasonably do, said Mary Bell, president of the Wisconsin Education Association Council, the state's largest teachers union. But Diana Rodgers-Adkinson, chair of special education at the University of Wisconsin-Whitewater and vice president of the national Council for Children with Behavioral Disorders, said restraint and seclusion are regularly misused in schools and can actually end up exacerbating the behaviors they are meant to curb. That the bill attracted so much opposition from teachers and school administrators "kind of illustrated to me this practice must be in use way too much in Wisconsin," Rodgers-Adkinson said.

Source: Milwaukee Journal Sentinel, 3/18/10, By Amy Hetzner

Editor’s Note: For the text of the bill, and the Wisconsin Association of School Board’s position memo on the same, see the first link below. In August 2009, U.S. Secretary of Education Arne Duncan sent a letter to all chief state school officers encouraging each state to review their current policies and guidelines regarding the use of restraints and seclusion techniques in schools and, if appropriate, develop or revise them to ensure the safety of students. A summary of the letter is available below. NSBA’s letter to the House Education Committee with respect to the proposed federal legislation is at the third link below.

Equity & Discrimination

School district violated lesbian student’s First Amendment rights by denying request to attend prom with same sex date

A federal district court in Mississippi has ruled that a school district that refused to allow a lesbian student to attend prom with a same-sex date and wearing gender non-conforming attire, i.e. a tuxedo, violated that student’s First Amendment rights. However, the court refused to issue a preliminary injunction ordering the school district to sponsor the prom. Constance McMillen, who has been openly identified as a lesbian since the eighth grade, is a senior at Itawamba Agricultural High School (IAHS). In February, 2010, IAHS issued a memorandum announcing the date for the prom and reiterating the school’s “opposite sex” date policy. McMillen asked several school officials for permission to bring a same-sex date to the prom. She was informed that she could only attend the prom with a male date, that she and her girlfriend could attend separately but not together as a couple, and that she and her girlfriend would not be allowed to slow dance together because it could "push people's buttons." McMillen testified that the superintendent told her that if McMillen and her girlfriend made anyone uncomfortable while at the prom, they would be "kicked out." When McMillen inquired about wearing a tuxedo to the prom, both the principal and and the superintendent informed her that only boys were allowed to wear tuxedos. Further, after checking with the Itawamba County Board of Education, the superintendent informed Constance that girls were not allowed to even wear slacks and a nice top but must wear a dress.

McMillen then contacted the American Civil Liberties Union (ACLU). The ACLU sent a letter to Itawamba County School District (ICSD) demanding the district revise its policies to allow McMillen to attend prom with a same-sex date and wear a tuxedo. The letter gave a March 10 deadline for ICSD to respond. On March 10, the school board held a special meeting to discuss ACLU’s demands. Following the meeting, the board issued a press release announcing cancellation of the prom due to “distractions to the educational process caused by recent events.” The statement also expressed the “hope that private citizens will organize an event for the juniors and seniors.” McMillen, represented by the ACLU, filed suit in federal court challenging ICSD’s policy and decision to prohibit her from bringing her girlfriend and wearing a tuxedo to the prom, as well as ICSD’s cancellation of the prom as a means of suppressing her constitutionally protected viewpoints in violation of the First Amendment. She also filed a motion a preliminary injunction, asking the court to order ICSD to reinstate its sponsorship of the prom.

The district court noted that in order for McMillen succeed on her motion for a preliminary injunction she must show: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the plaintiff will suffer irreparable injury if the injunction is denied; (3) that the threatened injury to the plaintiff outweighs any damage that an injunction might cause the defendant; and (4) that granting the injunction will not disserve the public interest. Regarding the first element, it concluded that by prohibiting her from attending the prom with a same-sex date ICSD was suppressing McMillen’s social and political viewpoints central to her sexual orientation in violation of First Amendment right to freedom of expression. It also found that the ICSD’s denial of her request to wear a tuxedo violated her freedom of expression rights. The district court, likewise, found that McMillen had satisfied the second and third elements, because she had demonstrated the ICSD’s actions in denying her permission to attend the prom with a same-sex date and to wear a tuxedo, along with cancelling the prom infringed on her right to expression of her social and political viewpoints.

However, it concluded that failure to grant an injunction in this instance would not disserve the public interest. The court based its conclusion on the fact that a parent sponsored prom which is open to all IAHS students has been planned and is scheduled for April 2. It found that requiring ICSD to “ step-back into a sponsorship role at this late date would only confuse and confound the community on the issue.” It also noted that federal courts have constitutional limits under Article III that restrain them from micro-managing local affairs, such as planning and hosting a prom, especially where “the parents of IAHS students have already undertaken such tasks.” As a result, the district court found “ issuing an injunction would be disruptive to the efforts of the community and would not be in the public's interest.”

McMillen v. Itawamba County Sch. Dist., No. 10-0061 (N.D. Miss. Mar. 23, 2010)

Editor’s Note: As this decision addressed only McMillen’s motion for preliminary injunction, the underlying law suit will go forward. McMillen’s complaint alleges that the school district’s policy and decision to prohibit her from bringing her girlfriend and wearing a tuxedo to the prom, along with the cancellation of the prom, were means of suppressing her constitutionally protected viewpoints in violation of the First Amendment. The controversy over ICSD’s decision to cancel the prom has received national media attention. See the first link below for background on the suit. Meanwhile, the Macon Telegraph reported on a different outcome when a gay student in Bleckley County Georgia made a similar request. Bleckley County High School senior Derrick Martin received permission to attend the sch! ool’s prom with a same-sex date. Principal Michelle Masters initially denied Martin’s request, believing the community is not ready for it. However, s chool district officials later said they have no policy in place against it. “You don’t have the right to say no,” principal Michelle Masters said. “As a principal, I don’t judge him. I’m taught not to judge. I have to push my own beliefs to the background.” Charlotte Pipkin, the superintendent of schools, said the school board didn’t take any votes on Martin’s request, but the board did discuss the matter during a board meeting. “Students are allowed to bring their date to prom,” Pipkin said. “There’s nothing that says who the date is. “I want this to be an enjoyable event, and I don’t want anything to take away from that,” she added. Even if there is a backlash, both educators said they won’t cancel or change th! eir plans for the prom. It would not be fair to the students, ! Pipkin said. The news article is available at the second link below


Georgia House approves anti-bullying legislation

The Atlanta Journal-Constitution reports that the Georgia House has passed controversial legislation that would require school officials to notify parents when their child is involved as the victim or instigator of bullying. The bill sets a January 2011 deadline for the state Department of Education to develop an anti-bullying policy that can be a model for local school systems. That policy will include age-appropriate consequences for bullying from kindergarten through 12th grade, and the same will be true for the local school system policy updates that will follow. Current policies only deal with bullying in sixth through 12th grades. The state school superintendent's office had some reservations about the bill when it was first proposed, in part because of language that included property damage as a form of bullying, spokesman Matt Cardoza said. That, he said, "would have been difficult for school systems." A kindergartner could be accused of bullying for breaking a classmate's pencil, suggested one House member. However, after the property damage reference was eliminated, the amendment passed 99-55, and the bill it was attached to cleared by a vote of 119-45. The measure now goes to the state Senate for consideration.

The bill was sparked by the death last year of Jaheem Herrera, an 11-year-old boy. His parents have said that the boy committed suicide after facing anti-gay taunts from classmates. An investigation said his death could not be attributed solely to a "simplistic case of bullying." The bill says bullying can be threats of injury, displays of force used to intimidate a victim, or written, verbal and physical acts "which a reasonable person would perceive as being intended to threaten, harass or intimidate."

Source: Atlanta Journal-Constitution, 3/30/10, By Nancy Badertscher

Editor's Note: The Georgia School Boards Association provides a bill-tracking service regarding pending legislation affecting Georgia schools. It is linked below.

Meanwhile, the
Boston Globe reports that nine students at South Hadley High School face criminal charges, ranging from criminal harassment and civil rights violations to stalking and statutory rape, in connection with the suicide of a classmate they allegedly harassed and bullied. Phoebe Prince endured a monthslong campaign of verbal abuse and physical threats before hanging herself in January. When Northwestern District Attorney Elizabeth Scheibel announced charges against the nine students, she excoriated school officials for failing to intercede, despite the fact the harassment was known to a number of faculty, staff, and administrators. Scheibel also said that Prince's mother had spoken with at least two school staff members about the bullying, which the superintendent of schools, Gus Sayer, had previously denied. In the school district's statement, Christine Sweklo, assistant superintendent, said that administrators had launched a review of the district's bullying policies and would begin entering reports of harassment and the subsequent responses into an electronic database. In January the supertinednent told the Globe that Prince was mainly harassed online and through text-messages. However, Scheibel said the harassment was primarily carried on during the school day. "I guess I would look to the School Committee and the school administration to review the matter further,'' said board chairman John R. Hine. "The [School] Committee is the authority for running the school department, so this is their area. I certainly hope they make every effort to investigate further that administrators knew what had been going on.'' The Boston Globe article is available at the second link below.

New York Times also reported on the filing of charges, noting that the Massachusetts House and Senate have passed versions of an anti-bullying law, but disagreement remains on whether all schools will be required to conduct staff training about bullying. The Times quoted Robert O. Trestan, Eastern States Civil Rights Counsel of the Anti-Defamation League, whose organization has led the effort for legislation in Massachusetts. The prospective law, Trestan said, is aimed at changing school cultures and preventing bullying, but would not label bullying a crime because it is a vague concept. "These indictments tell us that middle school and high school kids are not immune from criminal laws," he said. "If they violate them in the course of bullying someone, they'll be held accountable. We don't need to create a new crime." The New York Times article is available at the second link below.