Legal Update for School Administrators

1. Legal Update for School Administrators VASSP Principal’s Conference 2013 Roger Jones Lynchburg College jones@lynchburg.edu

2. Virginia and National Issues • The Mundane BUT IMPORTANT (Handout) • 2013 General Assembly • State Superintendent’s Memos • State Supreme Court • National Topics

3. Handout • Would be wise to go through the checklist at your convenience (preferably NOT NOW ) • Not an all encompassing list, but fairly close • Will pull out a few items from the list for emphasis

4. Epilepsy Seizure Management Guidelines • Have Epilepsy Seizure Management Guidelines been shared with teachers? If not, access at: http://www.doe.virginia.gov/support/health_medical/seizure_management.pdf • SHARE – You have a potential liability issue if you do not share

5. Sex Offender Registry • Have parents of each student enrolled in the school division been notified of the availability of information in the Sex Offender and Crimes Against Minors Registry and the location of the Internet website http://sex-offender.vsp.virginia.gov/sor/? • Failure to inform makes you vulnerable to liability.

6. Cardiopulmonary resuscitation and automated external defibrillators • There are amendments to several sections of the Code related to cardiopulmonary resuscitation and automated external defibrillators passed by the 2013 General Assembly. • The amendments allow school boards to require current certification or training in emergency first aid, cardiopulmonary resuscitation (CPR), and the use of automated external defibrillators (AEDs) for bus drivers. Someone needs to make sure this is communicated if the local school board decides to require this.

7. Cardiopulmonary resuscitation and automated external defibrillators • The amendments increase the number of required school personnel with such training per school, and requires such training for those seeking initial teacher licensure, renewal of a license to teach…. • Each school board shall ensure that in school buildings with an instructional and administrative staff of 10 or more (i) at least three employees have current certification or training in emergency first aid, cardiopulmonary resuscitation, and the use of an automated external defibrillator ….

8. Cardiopulmonary resuscitation and automated external defibrillators • For students, beginning with first-time ninth grade students in the 2014-2015 school year, the amendments add a requirement that recipients of the standard and advanced diplomas must receive training in emergency first aid, CPR, and the use of AEDs …. • The amendments also require an AED in every school by the 2014-2015 school year and schoolwide cardiopulmonary resuscitation drills.

9. Changes to 8 VAC 20-720-80Student Fees (Supt’s Memo #103-13) • Every local school board must have a policy addressing any fees that are charged. The policy must include the schedule of fees charged by the school division, provisions for reducing or waiving fees, and consequences for nonpayment of fees. The policy and the fee schedule must be provided annually to parents and posted on the school division's website. In place for 2013-14. Is this policy posted on the division website? • Policy and fee schedule must be consistent across the school division.

10. 8 VAC 20-720-80 • Since schools within a division cannot charge any fees that have not been approved by the local school board, have all fees been identified and approved by the school board? (8 VAC 20-720-80)

11. 8 VAC 20-720-80 • Although fees can be charged for class dues, such a fee cannot be mandatory. The school board must also specify the kinds of programs and activities covered by class dues. Has this process been followed?

12. 8 VAC 20-720-80 • Does the school charge for any of the following: parking, locker rental, extracurricular activities, class dues, field trips, fees for musical instruments (that are not part of curriculum), distance learning enrichment courses, overdue or lost library books, lost or damaged textbooks, consumable materials, driver education, or transcripts? If so, have all been approved by the school board? Are they referenced in the handbook?

13. 8 VAC 20-720-80 • Do you withhold report cards, class schedules, or diplomas for nonpayment of fees? Is there any reference to suspending or expelling a student for nonpayment of fees and charges? If so, eliminate the reference.

14. Eating Disorders • Added § 22.1-273.2 to require each school board to annually provide parent educational information on eating disorders for public school students in grades five through 12.

15. School-based offenses and delinquency charges • Amends § 22.1-279.3:1 to clarify that a local law-enforcement agency is not required to file delinquency charges against a student and that a school and a local law-enforcement agency may deal with school-based offenses through graduated sanctions or educational programming after a school principal reports to a local law-enforcement agency certain acts by such student that may constitute a criminal offense.

16. Firearms • HB 1866 amends 22.1-277.07 by striking the reference to weapons identified in 18.2-308.1.    • This amendment removes specific weapons identified in 18.2-308.1 from those identified as weapons which would lead to mandatory expulsion.  Under 18.2-308.1 these included stun weapons, a knife with a blade of 3” or more, and look alike weapons (weapons of like kind).  Under state law, these items are no longer considered weapons and, thus, do not lead to mandatory expulsion.  • Local school boards can adopt their own weapons policy prohibiting those noted in 18.2-308.1 as well as other weapons.

17. Bullying • §§ 8.01-220.1:2, 22.1-208.01, 22.1-276.01, and 22.1-279.6 of the Code were amended and section 22.1-291.4 addedto define "bullying" and require school boards to include in their codes of student conduct, policies and procedures that include a prohibition against bullying.  The law also requires the Board of Education to develop model policies and procedures and school boards to adopt policies and procedures by July 1, 2104 to educate school board employees about bullying and the need to create a bully-free environment.

18. Definition • "Bullying" means any aggressive and unwanted behavior that is intended to harm, intimidate, or humiliate the victim; involves a real or perceived power imbalance between the aggressor or aggressors and victim; and is repeated over time or causes severe emotional trauma. "Bullying" includes cyber bullying. "Bullying" does not include ordinary teasing, horseplay, argument, or peer conflict.

19. Biggest Challenges with Cyberbullying • Many people don’t see the harm associated with it because there are “more serious forms of aggression to worry about.” • Another challenge relates to who is willing to step up and take responsibility for responding to inappropriate use of technology. • parents don’t have the technical skills to keep up with online behavior; • principals are afraid to intervene in behavior that occurs away from school; • law enforcement is hesitant to get involved unless there is clear evidence of a crime or a significant threat to someone’s physical safety. • We need to get everyone involved - youth, parents, educators, counselors, law enforcement, social media companies, and the community at large. It will take a concerted and comprehensive effort from all stakeholders to really make a difference in reducing cyberbullying.

20. Safety and Security Issues • Changes to numerous sections of the Code related to school safety and security were passed. The amendments will result in: • model policies for threat assessment, • critical incident response training program, • standardized checklist for school safety audit walk-throughs, • required lock-down drills (two, one in September and one in January), • immunity from liability to anyone providing information related to bomb threats, explosives, alcohol/drug use at school, and providing information about a student charged with a crime to the threat assessment team.

21. Character Education and Discipline • Could your school’s safety and discipline program be strengthened by a formal link to the character education program?

22. Opportunity to link to Character Education Requirement (§ 22.1-208.01) • The basic character traits taught may include: • trustworthiness, including honesty, integrity, reliability, and loyalty; • respect, including the precepts of the Golden Rule, tolerance, and courtesy; • responsibility, including hard work, economic self-reliance, accountability, diligence, perseverance, and self-control; • fairness, including justice, consequences of bad behavior, principles of nondiscrimination, and freedom from prejudice; • caring, including kindness, empathy, compassion, consideration, generosity, and charity; • citizenship, including patriotism, the Pledge of Allegiance, respect for the American flag, concern for the common good, respect for authority and the law, and community-mindedness.

23. Kinship Care • Amends and reenacts § 22.1-3 to allow a child receiving kinship care from an adult relative to enroll in the school division where the kinship care provider resides. The bill also allows local school divisions to require one legal parent and the kinship care provider to sign affidavits detailing the kinship care arrangement as well as a power of attorney authorizing the adult relative to make educational decisions regarding the child. The provisions of this bill will sunset on June 30, 2016.

24. A – F Bill • Establishes an A to F grading system of individual school performance that includes the SOA, state and federal accountability requirements, and student growth indicators.  • By July 31, 2013, the Board of Education must approve student growth indicators.  • By December 1, 2013, the Department of Education must submit a report to the Governor and General Assembly on the approval of student growth indicators and their uses.  • By October 1, 2014, the Board is required to assign a grade from A to F to each public school in the Commonwealth; make both the system and the grade assigned to each school in the Commonwealth available to the public; and report to the General Assembly a summary of the system and the assigned grades. 

25. Opportunity Educational Institution • Creates the Opportunity Educational Institution (OEI) to be administered and supervised by a nine member OEI Board.   • The bill requires that any school that has been denied accreditation be transferred to the OEI.  The OEI board may require schools accredited with warning for three consecutive years to be transferred to OEI.  • The schools remain in OEI until the Board of OEI decides to transfer the schools back to the school divisions.  • Schools are eligible to be transferred at the end of five years or when the school achieves full accreditation.  • The OEI board is required to supervise and operate the schools in OEI in whatever manner that it determines to be most likely to achieve full accreditation for each school, including the utilization of charter schools and college partnership laboratory schools.

26. Contract/Reassignment Notice for Administrators • Amends and reenacts § 22.1-294 to change the deadline for a school board to notify principals, assistant principals, or supervisors under continuing contract of their reassignment to teaching positions from April 15 to June 15.

27. Evaluation and Grievance Procedures • The bill requires teachers, assistant principals, and principals to be evaluated every year, either formally or informally, and such evaluations to include student academic progress as a significant component and an overall summative rating. • The bill allows local school boards to increase from three years to five years the term of probationary service required before a teacher becomes eligible for a continuing contract.

28. Evaluation/Grievance Continued • The law also changes the grievance procedure for teachers by giving local school boards the option to assign a grievance hearing to be heard by an impartial hearing officer designated by the local school board and by removing the option for a grievance to be heard in front of a fact-finding panel.

29. Child Abuse • Amends and reenacts § 63.2-1505 to expand the individuals whom a local department of social services must report to a local school board upon determination that a complaint alleging that such individual has committed child abuse or neglect is a founded complaint from any full-time, part-time, permanent, or temporary teacher to any full-time, part-time, permanent, or temporary employee of a school division.

30. Superintendent’s Memo #105-13Standard Diploma Accommodations • 2012 General Assembly eliminated the Modified Standard Diploma with the 9th grade class of 2013-14 • VBOE approved accommodations on March 28, 2013 for students with disabilities

31. Accommodations Include • Identification of substitute tests to earn a verified credit. VDOE may partner with a school division to nominate an additional test to the VBOE which has the authority to approve. Tests, at a minimum, must: • Be standardized and graded independently of the school or school divisions in which the test is given • Be knowledge based • Administered on a multistate or international basis or administered as part of another state’s accountability assessment program • Measure content that incorporates or exceeds the SOL content in the course for which verified credit is given

32. VMAST Accommodation • Continued use of the Virginia Modified Achievement Standards Test (VMAST) for verified credit for Algebra I and End-of-Course (EOC) Reading. Student must meet all current VMAST requirements beginning in 2014-15 and meet the following additional requirements: • Must pass the high school course; and • Score 374 or below on EOC test after taking the test at least twice. • (Beginning 2014-15, scores of VMAST students will no longer be included in participation rate or pass rate calculations for federal accountability)

33. Local Verified Credit Accommodation • Permits local school boards to award local verified credits in reading, writing, and math as well as science and history. All content areas use the same criteria for awarding credit. Eligible students must: • Pass the high school course • Score within 375-399 on the EOC test after taking test at least twice • Demonstrate achievement in the content through an appeal process administered at the local level

34. Course Offering Accommodations • Additional course options available to students with disabilities to meet standard credit requirements for Standard Diploma • Augment Personal Finance Course to include 21 Work Readiness Skills (WRS). This course would meet requirement for Economics and Personal Finance if student has earned 3 standard credits in history and social science. • Eliminating the Economics strand would be an accommodation. • After completion of the Personal Finance Course, student would take the WRS assessment to earn the Work Readiness Skills credential, also a requirement for graduation.

35. Additional Course Accommodations • Allow parts I and II of certain required courses to each earn a standard credit toward the total credits required in the subject area (i.e., Algebra I, Part I and Algebra I, Part II would count as two standard credits even though it is one year of Algebra spread over two years)

36. Graduation Requirements for Standard Diploma for Student with Disability • 4 standard credits in English and 1 verified credit in Reading and 1 verified credit in Writing • 3 standard credits in math that includes Algebra I and Geometry and 1 verified credit • 3 standard credits in science that includes Earth Science and Biology and 1 verified credit • 3 standard credits in history and social science that includes Virginia and U.S. History and Virginia and U.S. Government and 1 verified credit in history and social science

37. Florida v. Jardines (March 26, 2013) • Supreme Court ruled 5-4 that the use of a drug-sniffing dog by police officers on the front porch of a suspect’s home, without a valid warrant, probable cause, or permission, was an unreasonable search under the 4th amendment. • The dog was taken to the residence by police on a unverified tip. The dog alerted and sat at the door. Police then obtained a search warrant where drugs were found. • Defendant argued that deployment of the dog constituted a search – the Supreme Court agreed

38. Impact on School Searches with Dogs • Use of drug sniffing dog at a private residence is unreasonable • What effect does decision have in the context of a search by such dogs on school property? • Would appear that such searches may continue to be legal because school property is public property, not a residence as long as searches are around parking lots, buildings, cars, backpacks – HOWEVER, consulting competent legal counsel is recommended • 8th Circuit (Burlison v Springfield 3/13) held use of drug dogs did not violate 4th amendment

39. Another Confederate Flag T-Shirt Case • 4th Circuit • Latta, SC female student word numerous Confederate flag and protest message shirts to school • She was required to change the shirts and disciplined at least once

40. The shirts • Southern Chicks with confederate flag • Dixie Angels with confederate flag • Southern Girls with confederate flag • Confederate flag with picture of the 1st Louisiana Native Guards, a Confederate, African-American regiment • Confederate flag and picture of Robert E. Lee • Girls Rule with confederate flag • Confederate flag with phrase “Daddy’s Little Redneck” • American Flag with “Old Glory” and phrase “Flew over legalized slavery for 90 years” • Offended by School Censorship of Southern heritage • SC State House with confederate flag • Honorary Member of the FBI: Federal Bigot Institutions • Our School Supports Freedom of Speech for All (Except Southerners) • Public Schools Should Educate Not Discriminate Against Southern Heritage • Jesus and the Confederate Battle Flag: Banned from Our Schools but Forever in our Heats

41. 4th Circuit upheld district court ruling that “school officials complied with the requirements for regulating student speech as established in Tinker ….” • Question was “whether school officials could reasonably forecast a disruption because of her shirts. As we have noted, ‘a public school has the power to act to prevent problems before they occur, and the school is not limited to prohibiting and punishing conduct only after it has caused a disturbance.’ … As long as school officials reasonably forecast a substantial disruption, they may act to prevent that disruption without violating a student’s constitutional rights, and we will not second guess their reasonable decisions….” • Should be noted that the court acknowledged that the dress code policy was “content neutral” in that it banned “all racial symbols”

42. Quad-Fecta of Student Speech

43. Discipline around speech is POSSIBLE if speech • occurs on campus. • creates substantial disruption. • is likely to cause a substantial disruption (has caused a substantial disruption in the past). • is connected to a school course or activity (newspaper, yearbook, literary magazine, play). • is lewd, indecent, vulgar, or offensive. • promotes the illegal use of drugs. • Speech OFF CAMPUS is hard to regulate!

44. The Supreme Court and Cyberbullying • Courts have wrestled with whether or not school officials can regulate off-campus conduct, in particular online speech or expression. • Supreme Court has provided no guidance on the issue.   • Denied certiorari in three student Internet speech cases, • J.S. v. Blue Mountain Sch. Dist. (combined with Layshock v. Hermitage Sch. Dist.) • Kowalski v. Berkeley County Schools • In each of these cases, a student had used offensive language online, after school hours, to berate school administrators or a fellow student • School officials disciplined the student for the behavior, drawing a suit based on First Amendment free speech protection 

45. Kowalski v. Berkley County (4th Circuit, July 27, 2011) • http://pacer.ca4.uscourts.gov/opinion.pdf/101098.P.pdf • One of the first cases which tackles the issue of student-to-student cyberbullying

46. Decision • The 4th circuit noted the essence of the case when it stated the following: “The question thus presented is whether Kowalski’s activity fell within the outer boundaries of the high school’s legitimate interest in maintaining order in the school and protecting the well-being and educational rights of its students.” • The 4th circuit ruled in favor of school officials stating that the disciplinary action was justified and did not violate any of Kowalski’s constitutional rights.

47. In ruling against Kowalski, the court made several important points of which principals should be aware. • The 4th circuit quoted the Supreme Court in Tinker v. Des Moines Indep. Community School Dist. stating that while students do have freedom of speech, those freedoms are the not the same as adults because of the “special characteristics of the school environment.” • The 4th circuit recognized that the Supreme Court has not ruled on a case where “student speech targeted classmates for verbal abuse.” • Even in most cases that have made it to a court of appeals, the cases have involved • websites that were created after school hours using non-school computers • were directed toward administrators or teachers • as a result, the courts have generally used the Tinker standard that the speech must create a substantial disruption in the school.

48. Tinker Revisited • 4th circuit added an additional reference to Tinker rarely referenced in most cyberbullying cases when the court noted that speech that “disrupts classwork,” creates “substantial disorder,” or “collid[es] with “or inva[des] the rights of others” is not protected speech. • Since the Kowalski case involves student-to-student harassment, the 4th circuit used the Tinker reference noting that speech that violates the rights of others is an important point in this debate, and that such speech is not protected when directed at another student. • Appears the 4th circuit is just as concerned with protecting the rights of the victim as much as it is concerned with protecting the constitutional rights of the speaker. • The court also quoted Tinker that students have the right “to be secure and to be let alone.”

49. The 4th circuit went on to quote Tinker: • [C]onduct by [a] student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. • While it may be illogical to believe that the Supreme Court in 1969 could have predicted the Internet, it is clear from the above quote that the Supreme Court recognized that speech made outside of school is not automatically protected by the Constitution.

50. The 4th circuit also appears to have put greater responsibility on schools to prevent bullying and cyberbullying. • Recognizing that student-to-student bullying is a major concern, the 4th circuit used a quote from the Supreme Court decision in Morse v. Frederick stating that • while schools have a duty to lessen the effects of disruption, they also have a duty “to prevent them from happening in the first place.”