Civil Rights Liability in the Public Schools · 1 Civil Rights Liability in the Public Schools A 19th Century Law Wrestles with 21st Century Problems April 8, 2016 –COSA School

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Civil Rights Liability in the

Public SchoolsA 19th Century Law Wrestles with 21st Century Problems

April 8, 2016 – COSA School Law Seminar

Presented by:

Darcy L. Proctor Ancel Glink Diamond Bush DiCianni and Krafthefer, P.C.

John Foskett Deutsch Williams Brooks DeRensis & Holland, P.C.

Linda L. Yoder Shipman & Goodwin LLP

DEUTSCH | WILLIAMS | BROOKS | DERENSIS & HOLLAND, P.C. Attorneys at Law

Section 1983 Litigation-Bullying, Harassment, and Beyond

Presented by:

Darcy L. Proctor

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Framework of Section 1983 Claims

•Deprivation of any rights, privileges or immunities secured by the U.S Constitution and laws.

• First, Fourth and Fourteenth Amendment (due process and equal protection rights)

Copyright © 2016 National School Boards Association. All Rights Reserved.

Duty to Protect

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189 (1989)

•Generally schools do not have a duty to protect students.

• Exceptions: special relationship and state-created danger.


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Bullying, Harassment, and Abuse

•How are Federal Courts Handling these Cases?

•Who knew what?

•When did they know it?

•What did the school do about it?

•Was the school’s response adequate?


Peer-on-Peer Bullying

• Sufficiently serious to create hostile environment,

•Actual knowledge,

• School response was deliberately indifferent.

Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999)

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Equal Protection Bullying Cases

• Doe v. Galster, 768 F. 3d 611 (7th Cir. 2014)

• Did school act with a “nefarious discriminatory purpose”, and discriminate against student based on membership in a definable class?

• Did school act intentionally or with deliberate indifference?

Fourteenth Amendment Due Process

•Morrow v. Balaski, 719 F. 3d 160 (3d Cir. 2013)

•No Affirmative Duty to protect students from harm caused by private citizens.

•No evidence that school made daughters more vulnerable than they would have been otherwise.

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Monell Claims Against School Districts

•Express policy

•Custom or widespread practice

•Decision of a person with final policymaking authority

•Failure to train


Pleading Monell Claims

• Carmichael v. Galbraith, 574 F. App’x 286 (5th Cir. 2014)

•Allegations in complaint too scarce to make out a claim that school was responsible for any sort of policy or custom resulting in the denial of equal protection.

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Monell Liability for Failure to Train

• Cox v. Sampson County Bd. of Ed. (E.D. N.C. 2013) – valid Fourth Amendment violation for failure to train employees on student search policy.

Monell Liability for Failure to Train

• B.A.B. Jr. Bd. of Ed of City of St. Louis, 698 F. 3d 1037 (8th Cir. 2012)

• Requires proof that the school board’s training practices were inadequate,

•Deliberate indifference to rights,

• Conscious choice by school board, and

•Deficiency in training caused injury.

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Qualified Immunity

•Qualified Immunity Defense applies to individual defendants not school district

• Is there a constitutional violation?

•Was the right “clearly established” such that a reasonable school official would understand that conduct violates a student’s constitutional right?


Attorney’s Fees-42 U.S.C. § 1988

• Prevailing Party entitled to reasonable attorney’s fees in Section 1983 litigation.

• Plaintiff must succeed on a significant issue which achieves some of the benefit the party sought in bringing the action.

• Lodestar analysis.

• Fee exposure can be substantial.


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QUESTIONS

Darcy L. Proctor, Esquire

Litigation Partner

[email protected]

ANCEL, GLINK, DIAMOND, BUSH, DICIANNI & KRAFTHEFER, P.C.140 South Dearborn, 6th Floor

Chicago, Illinois 60603Phone: (312) 604-9105

Tinker v. Des Moines Meets the

Internet and Social Media -Does Restraint on Regulating Speech Reach

Outside the School Campus?

Presented by:

John Foskett

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Tinker (1969)

•Generally, student speech may be disciplined only if the facts reasonably lead school officials to forecast substantial disruption of or a material interference with school activities

• Silent protest by wearing armbands in class


Bell v. Itawamba County Sch. Bd. (2015)

• Student created rap song and posted on Facebook and YouTube

• School officials imposed discipline because the song contained violent lyrics about two coaches who had been accused of harassing female students


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Bell Cont’d…

• Fifth Circuit (en banc) issued a sharply-divided decision upholding the discipline

• Majority – the discipline satisfied the Tinker standard and it was irrelevant that the speech occurred outside the “school house gate” and on social media

• Dissent – Tinker does not reach outside the “school house gate”


Questions Raised by Bell – Is There a

“School House Gate” Any More?

• “It’s 2016, not 1969”

• Students use electronic technology as integral part of schooling – research, writing

• School-sponsored educational travel and exchange programs


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Questions Raised by Bell – Is There a

“School House Gate” Any More?

•High school students enroll in and earn credits for college courses

• Students earn credits for community service programs

• Extracurricular programs (e.g., music, theater) can be connected to earning course credits


Recent Incidents

• According to the petitioner in Bell, there have been several reported instances of discipline for internet/social media speech;

• A Minnesota school disciplined a sixth grader for complaining in an off-campus online post that a hall monitor was “mean to” her;

• An Alaska school suspended nine students for “liking” a Facebook post that showed other students vandalizing school property;

• A Minnesota school suspended a student for jokingly posting the words “actually yes” in response to an anonymous question on a gossip website asking whether he had kissed a teacher; and

• A New Jersey school reprimanded a student for tweeting criticism of Israel and expressing happiness that a pro-Israel classmate had unfollowed her on Twitter.

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What Should Be the Standard for

Disciplining Social Media Speech?

• What type of “substantial disruption” can reasonably be forecast?

• Should something like “imminent actual disruption” be the standard?

• Should there be a narrower focus on the “threat” character of the speech? On the audience reached? On the medium used? On the “intent” of the student in making the speech (assuming that when one posts on the Internet/media, one intends to reach other students/school staff)?

• Should the rules apply “24/7”?


Other Relevant Aspects

• In Bell the dissent relied on the subject of the speech (alleged harassment of students by staff) as a “matter of public concern”

•Are the rules regarding speech by public employees on “matters of public concern” relevant to school setting?


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• In Bell the dissent also relied on the form of expression – music as “art”

•What role should this play?


Copyright © 2016 National School Boards Association. All Rights Reserved.Copyright © 2016 National School Boards Association. All Rights Reserved.

John Foskett, Esq.

[email protected]

One Design Center PlaceSuite 600

Boston, MA 02210(617) 951-2300

DEUTSCH | WILLIAMS | BROOKS | DERENSIS & HOLLAND, P.C. Attorneys at Law

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Section 1983 Hot Spots: Sources of the Claims You Will Defend

in 2016

Presented by:

Linda L. Yoder

Searches and Seizures

• TLO (U.S.S. Ct. 1985) sets the standard: School official must have a reasonable basis for the search before it starts; the scope must be reasonably related to the purpose; and the search must not be excessively intrusive in light of the age and gender of the child


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Strip Searches: Schools Don’t Get the Message

• Safford (U.S.S.Ct. 2009) As the scope of the search becomes more intrusive the justification for the search including the likelihood that it will produce evidence needs to be more compelling

• Is a strip search ever justified in the absence of an emergency or will waiting until police/parents arrive lead to harm to self or others? What about a search to prevent destruction of evidence of a major crime?


Do not claim that the law is unsettled

• Have a written policy about who can conduct a hands on or strip search (if anyone)

• Train your staff and have proof of training

• Make certain that you have a clear demarcation of authority between agents of the school and the local law enforcement agency (Who is on first?)

• Just because a situation will be analyzed on a fact specific basis does not make the law unsettled


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Searching Electronic Devices

• Have a written policy that is disseminated to staff, parents and students regarding an expectation of privacy

• Remember that most judges/jurors have children and they all have electronic devices

• Train your staff and have documentation of training-consider limiting cell phone or computer searches to administrators who have first investigated the need for the search and determined what is reasonable: violation of cell phone or computer use time likely is not enough by itself to justify any search


Unreasonable Seizures: Don’t Keep the

Student Waiting

• Often staff forget that taking a student out of class may be viewed as a seizure that needs to be justified as reasonable

• Questioning without parent notice or presence is not unconstitutional

• Consider that “a seizure” does not need to involve a suspect but could include a witness


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Scenario: Searches and Seizures

• Jada, a second grade student comes crying to her teacher after recess saying that Bryin was taking pictures of her on his cell phone and laughing at her during recess while she was coming down the slide. Bryin says it was not him but it might have been Juaquine. The classroom teacher has just attended a presentation on “sexting” and is worried that a student may have taken inappropriate photos of Jada that could be shared on social media. Cell phone use during recess is not encouraged but not prohibited. The teacher makes all of the boys stand at one side of the room and asks them who was taking the pictures. Each denies any knowledge of picture taking. The teacher then asks the boys to turn over any cell phones and she is handed three. She searches the photo site on each phone and finds no pictures of Jada. She is concerned however about the use of temporary photo sites like Snap Chat so she keeps the cell phones. She also makes Bryin and Juaquine stay in her classroom while the other students go to art so that she can question them further. Juaquine looks nervous to her and starts fidgeting with his hands in the kangaroo pocket of his hoody. At this point, the Principal, who has been alerted by a crying Jada that “something happened at recess” enters the classroom to see the teacher with her hands inside Juaquine’s hoody pocket. How should the Principal react? Copyright © 2016 National School Boards Association. All Rights Reserved.

Student Discipline and Exclusions

• Goss v. Lopez: due process protections vary with the length of the exclusion. Suspensions: notice and an opportunity to be heard. Expulsions: a hearing. Look to State law for each state’s requirements and follow Board policy which might be more protective than state or federal law.

• In general, school discipline will not be reviewed for due process violations unless the conduct “shocks the conscience”


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Non-disciplinary exclusions

• Health and safety: Due process is still required

o Fear of communicable disease: Ebola? Lice? Influenza? Lack of immunizations?

o Mental Health Issues: Actual threats? Scary writings (Edgar Alan Poe or Wes Craven)? Reserved demeanor and references to violent video games? A victim of bullying?


Scenario: Health and safety exclusions

• Gabriela has moved into your district from Sao Paolo, Brazil. Her assigned teacher, a newly married young woman, does some research and sees that there is a travel alert on the US State Dept. website due to the Zika virus. She knows that the parents of some of the students in her class are or may be trying to become pregnant. She asks Gabriela’s parents if the family has been tested for the Zika virus. She “encourages them to give Gabriela some “time to adjust” to her new home before she starts school. She also sends a note home to the parents of her students alerting them that “A student newly arrived from Brazil has been assigned to our class”. The Principal’s phone starts ringing: parents, the union representative and journalists. So he picks up the phone and calls you. How do you respond?


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Practice Pointers:

• A District should review and revise its written policies regarding potential §1983 issues on an annual basis

• Written policies need to define clearly who can act on behalf of the District

• The District should verify staff training on these policies

• Coaches, bus drivers, paraprofessionals and others should be included in the training regarding the scope of their authority

• The District needs a written agreement with local law enforcement regarding roles to be played by each. In particular, the role and authority of a school resource officer should be clearly defined? Who does he/she work for?


Practice Pointers continued

• The District should conduct more intensive annual training of administrative staff regarding all of these issues. The training should include discussion of fact patterns and review of issues like what is the harm of waiting for the police to conduct the search if needed? Am I treating like cases in a like manner? Is my opinion/bias about the student or a characteristic of the student affecting my judgment?

• Administrative staff should be trained specifically how to prepare written documentation in an objective and unambiguous manner. Not: The student acted in a threatening manner. Instead: The student ignored warnings to stand still and calm down and ran towards his backpack yelling I am going to kill all of you!


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QUESTIONS

Linda L. Yoder

[email protected]

One Constitution PlazaHartford, CT 06103-1919

(860) 251 - 5717

Civil Rights Liability in the Public Schools · 1 Civil Rights Liability in the Public Schools A 19th Century Law Wrestles with 21st Century Problems April 8, 2016 –COSA School

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