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School Law for Future Teachers 2013
Transcript of School Law for Future Teachers 2013
This includes all public K-12 school districts and schools. Who has FERPA rights? Eligible students or parents of students have FERPA rights.
A “student” is any individual who is or has been in attendance at an educational agency or institution and regarding whom the agency or institution maintains education records.
Once a student turns eighteen (18) years of age, the rights of the parents transfer to the student and they become an “eligible student.” Parents or eligible students have the right to request that a school correct records which they believe to be inaccurate or misleading.
Schools are not required to provide copies
Schools may charge a fee for copies
Schools must have written permission from the parent or eligible student in order to release any information from a student's education record.
“Education records” are records that are directly related to a “student” and maintained by an “educational agency or institution” or by a party acting for the agency or institution. The Rules “Education records” include, but are not limited to:
Student GPAs and transcripts
Final course grades
Financial aid records
Academic counseling records
Student health records Education Records “Personally identifiable information” within education records cannot be disclosed unless:
Prior written consent,
Directory information, or
An exception to the general rule Personally Identifiable Information Responding to Requests Q: What do you do if you receive a FOIA
request for records covered under FERPA?
A: Talk to your administrator Rule: FOIA follows FERPA If all or part of the records are covered under FERPA and cannot be disclosed under FERPA, then they also cannot be disclosed under FOIA FOIA Freedom of Information Act Can be requested by citizens of the State of Arkansas.
Corporations doing business in the state can be citizens.
Applies to public meetings and records. Public Meetings Records The meetings of any boards of education, and all other boards in the State of Arkansas, supported wholly or in part by public funds or expending public funds.
Any meeting to discuss matter on which foreseeable action may be taken by governing body. Mayor of El Dorado v. El Dorado Broadcasting Co., 260 Ark. 821(1976). What is a public meeting? Any meeting to “conduct board business”
Any formal or informal meeting
One-on-one series of discussions or meetings
Purpose of meeting is to obtain decision of board on board business
Applies to committees as well as to governing body
Applies to two or more board members The key is whether discussion is to get information for or to discuss or decide a matter of board business.
For a meeting to be public as required by the Act, notice of the meeting must be given to the public, and the meeting must be held in a manner that does not thwart public attendance. The Key What are public records? Writings
Tapes (they look like this)
Electronic or computer-based information Any records in any medium which are required by law to be kept as a record of the performance or lack of performance of official functions carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds.
All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records. Definition: So, for example... E-mails or letters sent to private e-mail addresses or private residences of public officials are subject to FOIA if they involve the public’s business. Bradford v. Director, ESD, 83 Ark. App. 332 (2003); Op. Att’y Gen. 2000-220. Bradford v. Director, ESD Is my school district work email private? Your work email may be subject to district control and is certainly subject to FOIA. Exemptions Medical records
Education records as defined in FERPA, unless their disclosure is consistent with the provisions of that act (FOIA follows FERPA);
Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy;
Home addresses of nonelected state employees, nonelected municipal employees, and nonelected county employees contained in employer records, except that the custodian of the records shall verify an employee's city or county of residence or address on record upon request. Exemptions are those things which are not subject to FOIA. We might say they aren't "FOIA-able." I'm pretty sure "FOIA-able" isn't a real word. Access to Students and Information by Military Recruiters The ESEA (Elementary and Secondary Education Act), as amended by No Child Left Behind, requires local educational agencies (LEAs) receiving assistance under the ESEA to:
Provide secondary school students’ names, addresses, and telephone listings to military recruiters, when requested, unless a parent has “opted out” of providing such information (see below), and
Give military recruiters the same access to secondary school students as they provide to post-secondary institutions or to prospective employers.
A secondary school student or the parent of the student may request that the students’ name, addresses, and telephone listings not be released without prior written consent, and the LEA must notify parents of the option to make this request (FERPA notice requirements apply). The Supreme Court held that "peer grading" (students grading other students' assignments) does not violate FERPA.
Grades on student papers are not "education records" until the teacher has recorded them, assuming that a teacher's grade book is an education record.
The Court noted that peer-graded items were not "maintained" within the meaning of FERPA, because the student graders only handled the items for a few moments.
Moreover, the Court stated that each student grader, by grading assignments, did not constitute a person acting for an educational institution within FERPA. Peer Grading Owasso Independent School Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002) The principal of a school, or the person designated by the principal in the principal’s absence, must make a reasonable, good faith effort to notify a student's parent or legal guardian, if the student is under eighteen, if the school or school district:
Makes a report to any law enforcement agency concerning student misconduct;
Grants law enforcement personnel other than a school resource officer acting in the normal course and scope of his or her assigned duties access to a student;
Knows that a student has been taken into custody by law enforcement personnel during the school day or while under school supervision. Notice of Access to Student by Law Enforcement Exception: When the parent is suspected of child maltreatment and the child is being interviewed by law enforcement about those allegations, the parent must not be notified. Freedom of Information Act Tripp Walter Arkansas Public School Resource Center
1401 West Capitol, Suite 465,
Little Rock, AR 72201
www.apsrc.net Teacher Fair Dismissal Act Teacher Excellence & Support System TESS TFDA Teacher Fair Dismissal Act Termination Non-Renewal Termination vs. Non-Renewal TESS Timeline Aug.
2012 Ends employment in the middle of things Ends things at the natural breaking point The principal recommends to the school board that the contract not be renewed for the next year. Evaluations TESS evaluations will be done annually for novice teachers, probationary teachers, or teachers who successfully completed intensive support status within the current year or previous year.
All other teachers will be evaluated one time every three school years.
Every teacher contract renewed or entered into after the start of TESS is subject to the requirements of TESS.
ADE must provide more than one opportunity for training. 2013-2014 What happens in years without an evaluation? In the years when a summative evaluation is not required for a teacher, the teacher will focus on the her professional learning plan as approved by her evaluator.
In the two years an evaluation is not required, a district may conduct a less intensive evaluation than the TESS evaluation. Between September 2012 and August 2013, the Department or approved organizations, shall conduct training on the Teacher Excellence and Support System. By September 1, 2012 State Board shall develop the evaluation framework, rubric, and all rules to implement this Act. In 2013-2014, ADE will implement a one year pilot using the Teacher Excellence and Support System in selected districts to obtain feedback on the model and make revisions to rules. 2014-2015 districts will implement the Teachers Excellence and Support System for all teachers employed under rules adopted by State Board of Education. How to Lose Your License Grounds for revocation of a teaching license Plea of guilty or nolo contendere (no contest) to or finding of guilt of any crime listed in A.C.A. § 6-17-410, as discussed in a moment.
Includes any expunged or pardoned conviction.
Violation of secure testing regulations and confidentiality.
A true report in the Child Maltreatment Central Registry. List of Offenses in
A.C.A. § 6-17-410 Capital murder.
Murder in the first degree.
Murder in the second degree.
Battery in the first degree.
Battery in the second degree.
Terroristic threatening in the first degree.
Sexual assault in the first degree, second degree, third degree, and fourth degree.
Distribution to minors
Any felony in violation of the Uniform Controlled Substances Act
Engaging children in sexually explicit conduct for use in visual or print media, transportation of minors for prohibited sexual conduct, employing or consenting to the use of a child in a sexual performance, or producing, directing, or promoting a sexual performance by a child.
Sexual indecency with a child
Endangering the welfare of a minor in the first degree Pandering or possessing visual or print medium depicting sexually explicit conduct involving a child
False imprisonment in the first degree
Permanent detention or restraint.
Permitting abuse of a child (You’re a mandated reporter).
Assault in the first degree.
Public sexual indecency.
Endangering the welfare of a minor in the second degree.
Criminal attempt, criminal solicitation, or criminal conspiracy to commit any of the offenses listed in this subsection.
Computer child pornography.
Computer exploitation of a child in the first degree.
Breaking or entering.
Any felony not listed and involving physical or sexual injury, mistreatment, or abuse against another. The Breakdown Killing people
Crimes of a sexual nature
Endangering or allowing the endangerment of children
Illegal Physical Restraints
Assorted other felonies Killing People Capital Murder
Murder in the 1st or 2nd degree
Negligent homicide Crimes of a Sexual Nature Rape
Creating Child Pornography
Possessing Child Pornography in Print or on your Computer
Sexual Indecency with a Child
Public Sexual Indecency
Indecent Exposure Child
Endangerment Endangering the Welfare of a Minor 1st or 2nd Degree
Permitting Abuse of a Child
Distribution to Minors Stealing Things Felony Theft
Breaking and Entering Illegal Physical
False Imprisonment 1st Degree
Permanent Detention or Restraint Other Felonies Drugs—Any felony in violation of the Uniform Controlled Substances Act
Assault 1st Degree
Terroristic Threatening 1st Degree
Battery 1st or 2nd Degree
Criminal Attempt, Solicitation, or Conspiracy
Forgery Note Criminal conviction does not have to be related to your role as teacher to serve as basis for revocation.
Rule of thumb: Avoid breaking the law.
If you have a prior disqualifying offense, you may ask the SBE for a waiver to allow you to obtain or maintain your teaching license. The ADE is required by law to do a child maltreatment central registry check through the Department of Human Services for first-time licensure applicants and first license renewal.
Districts may also request checks for new hires who are licensed.
If the check reveals a “true report,” the applicant’s license will be denied and a current certified employee will have his/her license revoked or non-renewed. Child Maltreatment
Central Registry Checks Each teacher employed by the board of directors of a school district shall be evaluated in writing annually. A.C.A. § 6-17-1504(a)
When a superintendent or other school administrator charged with the supervision of a teacher believes or has reason to believe that a teacher is having difficulties or problems meeting the expectations of the school district or its administration and the administrator believes or has reason to believe that the problems could lead to termination or nonrenewal of contract, the administrator will: Evaluation Bring in writing the problems and difficulties to the attention of the teacher involved; and
Document the efforts that have been undertaken to assist the teacher to correct whatever appears to be the cause for potential termination or nonrenewal.
A.C.A. § 6-17-1504(b) Teacher Personnel File The school district must maintain a personnel file for each teacher which must be available to the teacher for inspection and copying at the teacher's expense during normal office hours.
The teacher may submit for inclusion in the file written information in response to any of the material contained therein.
A.C.A. § 6-17-1505 Teacher Contract By May 1 of the contract year, the teacher is notified by the school superintendent that the superintendent is recommending that the teacher's contract not be renewed;
During the period of the contract or within ten (10) calendar days after the end of the school year, the teacher shall send by certified or registered mail his or her resignation as a teacher; or
The contract is superseded by another contract between the parties.
A.C.A. § 6-17-1506(a) Every contract between a teacher and the board of a school district shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the next school year unless: Contract Nonrenewal Termination, nonrenewal, or suspension shall be only upon the recommendation of the superintendent.
A notice of nonrenewal shall be delivered in person to the teacher or mailed by registered or certified mail to the teacher at the teacher's residence address as reflected in the teacher's personnel file.
The notice of recommended nonrenewal of a teacher shall include a statement of the reasons for the recommendation, setting forth the reasons in separately numbered paragraphs so that a reasonable teacher can prepare a defense.
A.C.A. § 6-17-1506(b) No teacher shall be required to sign and return a contract for the next school year any sooner than thirty (30) days after the contract is issued to the teacher.
The teacher shall have the right to unilaterally rescind any signed contract no later than ten (10) days after the end of the school year.
After that ten day period, you must ask the school district to agree to let you out of your contract.
A.C.A. § 6-17-1506(c) Teacher Contract/Recission 10 day window! Termination A teacher may be terminated only during the term of any contract:
when there is a reduction in force (RIF) created by district-wide reduction in certified staff,
for incompetent performance,
for conduct which materially interferes with the continued performance of the teacher's duties,
for repeated or material neglect of duty, or
for other just and reasonable cause.
A.C.A. § 6-17-1507(a) Notice of Termination The superintendent shall notify the teacher of the termination recommendation.
The notice shall include a statement of the grounds for the recommendation of termination, setting forth the grounds in separately numbered paragraphs so that a reasonable teacher can prepare a defense.
The notice shall be delivered in person to the teacher or sent by registered or certified mail to the teacher at the teacher's residence address as reflected in the teacher's personnel file.
A.C.A. § 6-17-1507(b)&(c) So, for example... Facts: High school principal brought action against school district under TFDA following district’s decision not to renew principal’s contract. The stated reason for the nonrenewal was that the superintendent was going to recommend a reorganization of the school district to the school board, and Ms. Olsen was the principal with the least amount of service. The district did not have a reduction-in-force policy in place at the time.
Decision: Circuit court’s judgment in favor of district is affirmed. Olsen v. East End School District, 84 Ark. App. 439, 143 S.W. 3rd 576 (Ark.Ct.App.2004) Suspension Whenever a superintendent has reason to believe that cause exists for the termination of a teacher and that immediate suspension of the teacher is necessary, the superintendent may suspend the teacher without notice or a hearing.
However, the superintendent MUST notify the teacher in writing within two (2) school days of the suspension.
A.C.A. § 6-17-1508(a)&(b) The written notice must include a statement of the grounds for suspension or recommended termination, setting forth the grounds in separately numbered paragraphs so that a reasonable teacher can prepare a defense.
The written notice must be delivered in person to the teacher or sent by registered or certified mail to the teacher at the teacher's residence address as reflected in the teacher's personnel file AND must state that a hearing before the board of directors is available to the teacher upon request provided that the request is made in writing within the time provided in A.C.A. § 6-17-1509.
A.C.A. § 6-17-1508(c) Notice of Suspension More Suspension If sufficient grounds for termination or suspension are found, the board of directors may terminate the teacher or continue the suspension for a definite period of time.
The salary of a suspended teacher will cease as of the date the board of directors sustains the suspension.
If sufficient grounds for termination or suspension are not found, the teacher must be reinstated without loss of compensation.
A.C.A. § 6-17-1508 Hearing Request A teacher who receives a notice of recommended termination or nonrenewal may file a written request with the board of directors of the school district for a hearing.
Written request for a hearing must be sent by certified or registered mail, or may be delivered in person, to the president, vice president, or secretary of the board of directors of the school district, with a copy to the superintendent, within thirty (30) calendar days after the written notice of proposed termination or nonrenewal is received by the teacher.
A.C.A. § 6-17-1509(a)&(b) Hearing Upon receiving a request for a hearing, the board shall grant a hearing in accordance with the following provisions:
The hearing will take place at a time agreed upon in writing by the parties, but if no time can be agreed upon, then the hearing must be held no fewer than five (5) calendar days nor more than twenty (20) calendar days after the written request has been received by the board; The hearing must be private unless the teacher or the board requests that the hearing be public.
If the hearing is public, the parent or guardian of any student under eighteen (18) years of age who offers testimony may choose to have the student's testimony offered in private;
The teacher and the board of directors may be represented by representatives of their choosing;
A.C.A. § 6-17-1509(c) It is not necessary that a full record of the hearing be made and preserved unless:
The board elects to make and preserve a record of the hearing at its own expense, in which event a copy shall be furnished the teacher, upon request, without cost to the teacher; or
A written request is filed with the board by the teacher at least twenty-four (24) hours prior to the time set for the hearing, in which event the board will make and preserve at its own expense a record of the hearing and must furnish a transcript to the teacher without cost;
The board cannot not consider at the hearing any new reasons which were not specified in the notices provided. Board Action Upon conclusion of its hearing on the termination or nonrenewal of a contract of a probationary teacher, the board of directors will take action on the recommendations.
The board's decision with regard to nonrenewal of a probationary teacher is final.
A.C.A. § 6-17-1510(a) Upon completion of the hearing for any certified teacher who has been employed continuously by the school district three (3) or more years or who have non-probationary status, the board of directors, within ten (10) days after the holding of the hearing, must: More Board Action Uphold the recommendation of the superintendent to terminate or not renew the teacher's contract; Reject or modify the superintendent's recommendation to terminate or not renew the teacher's contract; or Vote to continue the contract of the teacher under such restrictions, limitations, or assurances as the board of directors may deem to be in the best interest of the school district. Appeal The exclusive remedy for any non-probationary teacher aggrieved by the decision made by the board of directors is an appeal to the circuit court of the county in which the school district is located, within seventy-five (75) days of the date of written notice of the action of the board of directors.
A.C.A. 6-17-1510(d) So, for example... Facts: Probationary teacher appealed contract termination by suing school district under two grounds:
1) under the TFDA, and alternatively
2) for breach of contract
Decision: A probationary teacher may pursue a cause of action for breach of contract independently of the TFDA. Greenwood School District v. Leonard, 102 Ark.App.324, 285 S.W. 3d. 284 (Ark.Ct.App.2008) Board Action After any hearing granted to a teacher by this subchapter, the board of directors, by majority vote, will make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination or nonrenewal. A.C.A. § 6-17-1510(c)
Any nonrenewal, termination, suspension, or other disciplinary action of a teacher by a school district shall be void unless the school district substantially complies with all provisions of this subchapter and the school district's applicable personnel policies. A.C.A. § 6-17-1503(c) Personnel
Tips Professional Development Credits Right to a Duty Free Lunch Student Privacy Education
Records Confidential Juvenile Safety Plans Student Freedom
of Religion Teacher Freedom
of Religion Religious Rights The Equal Access Act
of 1984 Arkansas Equal Access The Rule Open Forum Meetings Battery Other Offenses Leave of Absence School Workers
Defense Program Child Custody
Issues Suspected Child Abuse Equal Access Offenses
Educators Personnel policies are incorporated into the teacher contract. You are entitled to rely on them as though they are written in your contract.
Policies are developed by policy committees, with teacher representation.
All teacher discipline must be in accordance with state law and the district’s policies. If you are in a meeting that is disciplinary in nature or becomes disciplinary in tone, if you are a public school employee, you have a right to a witness of your choosing.
If you are placed on an improvement plan as a result of a disciplinary meeting, do not fight the improvement plan. Focus on following it perfectly. Licensed personnel may obtain up to 12 hours of professional development through online programs which are:
Approved by ADE, and
Related to the district’s comprehensive school improvement plan OR the teacher’s professional growth plan
Teachers may make up credits missed because of illness during the current or succeeding year and these credits may be obtained through online programs. A.C.A. § 6-17-111 states that each district must provide AT LEAST a 30-minute uninterrupted duty-free lunch each day for each certified person.
Otherwise, the certified person must be compensated at his or her hourly rate of pay. FERPA is a Federal law that protects the privacy of student education records and prohibits the release of those records without consent.
Parents have right to inspect records maintained by school.
Schools are required to comply with FERPA in order to continue receiving federal funds. “Education records” are records that are directly related to a “student” and maintained by an “educational agency or institution” or by a party acting for the agency or institution.
“Education records” include, but are not limited to:
Student GPAs and transcripts; final course grades
Financial aid records
Academic counseling records
Student health records Juvenile safety plans are court orders applying to
juvenile sex offenders. The superintendent may verbally communicate the plan to the school employee primarily responsible for the student’s learning environment. Employee must sign a confidentiality statement.
Safety plan is protected information under FERPA and MAY NOT be communicated to any institution of higher ed, vo-tech, or any past, present, or future employer. Any student shall have the right to pray at any time, provided that it does not interfere with instruction.
No school personnel shall lead prayer. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) A.C.A. § 6-17-108: "Any teacher may wear the clothing of any established and recognized religion in the public schools and institutions of this state."
The language “established and recognized religion” would likely be unconstitutional today. Provides in part:
“It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access for a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” Arkansas’ Equal Access Act is codified at A.C.A. § 6-21-201 et seq., which applies to state funded secondary schools.
Both acts prohibit denial of access to students wishing to conduct religious meetings or events at school facilities if an opportunity is provided to other students to conduct other non-school sponsored meetings or events. Any school district that provides limited open forum access may wish to consider the following:
The school district cannot deny any student-initiated group access to school facilities during non-instructional time on the basis of religious, political, philosophical or any other content to be addressed at such meetings.
The school district may deny the use of facilities to any groups that it believes will disrupt the school program or threaten the health & safety of students and staff.
The school district should identify the non-instructional time period(s) set aside for student-initiated meetings before or after actual classroom instruction times. Meetings may also be held during the lunch period. The following criteria should be met for limited open forum meetings:
Meeting is voluntary & student initiated.
School district or school personnel shall not sponsor meeting. School or staff shall not promote, lead or participate in meeting.
Assignment of a teacher, administrator or other school employee to meeting for custodial purposes shall not constitute sponsorship of the meeting.
Meeting may not materially or substantially interfere with the orderly conduct of educational activities within the school.
Non-school persons shall not direct, conduct, control or regularly attend activities of student groups. A.C.A. § 5-2-605 allows the teacher to use reasonable and appropriate physical force upon the minor when and to the extent reasonably necessary to maintain discipline or to promote the welfare of the minor. A.C.A. § 5-13-202. Battery in the second degree.
A person commits battery in the second degree if the person knowingly, without legal justification, causes physical injury to a person he or she knows to be a teacher or other school employee while acting in the course of employment.
A.C.A. § 5-13-301. Terroristic threatening.
A person commits the offense of terroristic threatening in the first degree if with the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to a teacher or other school employee acting in the line of duty. A.C.A. § 6-17-1209: Provides a leave of absence for personal injury from assault or other violent criminal act when a schoolteacher is absent from his or her duties in a public school as a result of personal injury caused by either an assault or a criminal act committed against the teacher in the course of employment, the teacher must be granted a leave of absence from school with full pay for up to one (1) year from the date of the injury.
Teachers who suffer personal injury while intervening in student fights, restraining a student or protecting a student from harm must be considered to be injured as a result of an assault or a criminal act. State will pay a certain amount ($100 per hour) for the legal defense of school personnel for actions taken or conducted in the scope of their work duties.
Requires ADE approval
Recovery amount is limited to $150,000 per incident Pursuant to A.C.A. 12-18-402, teachers, school officials and school counselors must immediately notify the child abuse hotline if they have reasonable cause to suspect that a child has been subjected to child maltreatment or observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment. You are a
reporter What’s my liability if the family sues me for notifying the hotline? “Any person or agency required to participate and acting in good faith in making notification, the taking of a photograph or radiological test, or the removal of a child while exercising protective services shall be immune to suit and to liability, both civil and criminal.“
ACA Section 12-18-107(a) What do I do if the“non-custodial” parent comes
to pick up the child or see the child at school? Generally, there should not be a problem with allowing a non-custodial parent visitation. The Court order probably will not keep the non-custodial parent from seeing the child or children.
The only problem would arise if the custodial parent presents you with a valid court order clearly stating that the non-custodial parent should have no contact with the child or children (or that the contact with the children can only occur at specified times). Visitation A B This area should be spelled out in the court order, as to when each parent is to have “custody” (that is, physical control) over the child or children. Taking the Child Under both a.) and b.) above, it is important to remember that just because one parent does not want the other parent to visit or take the child, does not mean that the other parent does not have the right to visit or take the child or children. If in doubt, it is a good practice to require the parent to produce valid court orders to substantiate their claim that the other parent cannot see nor “check out” the child.
In this way, you can keep out of the middle of hostile feelings between parents. Then, you can focus on your responsibilities as educators and not as referees.
Unless you see proof (court orders) to the contrary, one parent’s “rights” concerning the child are the same as the other parent’s. Rule of Thumb File Mark Good communication among the parents and the school helps everyone involved,and keeps you from being forced to make “heat of the moment” decisions. For example, ACA Section 9-13-104(b) permits both the custodial and non-custodial to establish a schedule of prearranged days and times with the principal for one parent to take the child to school and the other to pick the child up. ACA Section 9-13-104(a) prohibits both parents (custodial and non-custodial) from transferring the child from one parent to another on school grounds while school is in session. What if the non-custodial parent wants to get copies of the child’s school records? Let the parent have the records
FERPA gives either a parent or legal guardian equal rights to review an education record unless there is evidence of a court order or law revoking these rights.
FERPA does not distinguish between a custodial and a non-custodial parent. ACA 9-13-301 essentially says the same thing as to the non-custodial parent’s rights to the child’s school records. Sexual Harassment Title VII Title IX Title VII
Title IX Questions and Answers What if the sexual conduct is criminal in nature? Sexual harassment includes conduct that is criminal in nature, such as rape, sexual assault, dating violence, and sexually motivated stalking. Even if a school reports possible criminal conduct to the police, that does not relieve the school of its responsibilities under Title IX. Must the sexual conduct be unwelcome? Yes. Conduct is considered unwelcome if the student did not request or invite it and considered the conduct to be undesirable of offensive. The age of the student, the nature of the conduct, and other relevant factors affect whether a student was capable of welcoming the sexual conduct. A student’s submission to the conduct or failure to complain does not always mean that the conduct was welcome. Are LGBT students protected from sexual harassment? Title IX prohibits harassing conduct that is of a sexual nature if it is unwelcome and denies or limits a student’s ability to participate in or benefit from a school’s program, regardless of whether the harassment is aimed at gay or lesbian students or is perpetrated by individuals of the same or opposite sex. Title IX does not address discrimination or other issues related to sexual orientation. Q: A: Q: A: Q: A: What is
Sexual Harassment? Legal Standards Misconduct vs.
Quid Pro Quo Hostile Work
Environment Rules It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex. Under Title VII of the Civil Rights Act of 1964, there are two types of sexual harassment:
quid pro quo
hostile work environment
A definition of the two types, and the usual resulting liability for the employer for each type follows: Sexual Misconduct – is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
Quid Pro Quo – Submission to such conduct (1) is made a term or condition of employment or (2) forms a basis for employment decisions affecting that individual. Conduct has purpose or effect of (1) unreasonably interfering with work performance or (2) creating an intimidating, hostile, or offensive environment Sexual Misconduct + Quid Pro Quo=
Employer is always liable.
Sexual Misconduct + Hostile Environment= Employer is liable if knew or should have known and failed to take appropriate corrective action. Sexual Harassment
of Students Forms of
Sexual Harassment Where & How? The Role of Educators Title IX (Teacher-Student & Student-Student) Sexual harassment is conduct that is sexual in nature, unwelcome, and denies or limits a student’s ability to participate in or benefit from a school’s education program. Sexual harassment can take different forms depending on the harasser and the nature of the harassment. The conduct can be carried out by school employees, other students, non-employee third parties, such as a visiting speaker.
Both male and female students can be victims of sexual harassment, and the harasser and the victim can be of the same sex. The conduct can occur in any school program or activity and can take place in school facilities, on a school bus, or at other off-campus locations, such as a school-sponsored field trip or training program at another location.
The conduct can be verbal, nonverbal or physical. The judgment and common sense of teachers and school administrators are very important elements in determining whether sexual harassment has occurred and in determining an appropriate response, especially when dealing with young children. Student subject to unwelcome sexual harassment
Harassment was based on sex
School had actual knowledge of sexual harassment
Sexual harassment was so severe, pervasive, and objectively offensive that it could be said to deprive student of access to educational opportunities or benefits provided by school.
School was deliberately indifferent to harassment.
School had control over both harasser and context in which harassment occurred. Title IX Hostile Educational
Environment Elements: Examples of Sexual Conduct Making sexual propositions or pressuring students for sexual favors.
Touching of a sexual nature.
Writing graffiti of a sexual nature.
Displaying or distributing sexually explicit drawings, pictures, or written materials.
Performing sexual gestures or touching oneself sexually in front of others.
Telling sexual or dirty jokes.
Spreading sexual rumors or rating other students as to sexual activity or performance.
Circulating or showing e-mails or Web sites of a sexual nature. A school should make sure that its policy against sex discrimination and grievance procedures are widely distributed and easily understood by students, parents of elementary and secondary school students, and employees.
At a minimum, students must know that the grievance procedure exists, know how it works, and know how to file a complaint.
When a student or parent reports sexual harassment, the school should explain how its grievance procedures work and offer the student or parent the opportunity to use them. Grievance Procedures Student Discipline Removal of Student from Classroom Student Searches Search & Seizure The Rules Bullying
& Cyberbullying Bullying Attribute Cyberbullying Your Response Written policies required
Suspension = up to 10 days
Expulsion is longer than 10 days
Student has right to appeal to School Board
One year expulsion is required where a firearm or weapon is involved
This requirement may be waived or altered at the superintendent’s discretion.
CAUTION: Different standards apply to Special Education students A.C.A. § 6-18-511 authorizes a teacher to remove a student from a classroom, where offense is:
Repeated and Documented
Severe and Abusive Students are protected by 4th Amendment right to be free from unreasonable searches, BUT there are MANY exceptions:
Lockers - students should be informed that lockers may be searched at any time
Search of person must be based on reasonable suspicion (you must be able to articulate what caused your suspicion to another person clearly), with adult witness present, and must be done by personnel of the same sex as the student, and not be excessively intrusive. Call your administrator! Drug screens must be random, except where students are involved in sports or extracurricular activities.
Parent notification must be used whenever possible.
The United States Supreme Court case of New Jersey v. T.L.O, 469 U.S. 325 (1985), makes public school administrators “state actors” for the purposes of the Fourth Amendment, and makes them (and students) subject to the constitutional prohibition on unreasonable searches and seizures. A student search should be initiated only if you have reasonable grounds to believe that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Searches and Seizures When can/do I initiate a student search? New Jersey v T.L.O., 469 U.S. 325, 342 (1985). The search should be restricted to those areas where the suggested contraband may be found.
The younger the student, the more conservative you should be about the search.
You should always involve an administrator in the decision making process first. Other Issues Resources Define bullying
Prohibit bullying on any school property/event/transportation
State the consequences
Require that a school employee who has witnessed or has reliable information that a pupil has been a victim of bullying as defined by the district shall report the incident to the principal;
Require that the person who files a complaint will not be subject to retaliation
Require that notice of what constitutes bullying, that it is prohibited, and the consequences of engaging in bullying be conspicuously posted in every classroom, cafeteria, restroom, gymnasium, auditorium, and school bus in the district; and
Require that copies of the notice be provided to parents, students, school volunteers and employees. Ark. Code Ann. § 6-18-514, requires the Board of every school district in the state to adopt policies to prevent bullying. The policies must: Policies Bullying means the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other student, public school employee, or person with whom the other student or public school employee is associated and that causes or creates actual or reasonably foreseeable:
Physical harm to a public school employee or student or damage to the public school employee’s or student’s property;
Substantial interference with a student’s education or with a public school employee’s role in education;
Hostile educational environment for 1 or more students or public school employees due to the severity, persistence, or pervasiveness of the act; or
Substantial disruption of the orderly operation of the school or educational environment. What is Bullying? Sarah Lynn Butler, a seventh grader from Hardy, Arkansas, committed suicide on September 26, 2009. Sarah, who had just been voted Queen for her upcoming Fall Festival, was teased at school, and later on received bullying messages on her MySpace.
Sarah’s mother says she often checked her MySpace page to make sure there wasn't anything inappropriate being sent or received, and she noticed that she was getting some bad messages about rumors at school saying she was a slut, and talked to her about it. But then Sarah removed her from her list of friends and she was no longer able to read her page.
On the morning of her suicide, Sarah stayed home while her family was out, and logged on to her MySpace page. The last message she read said that she was easily forgotten, and that she was just a stupid little naive girl and nobody would miss her.
When her parents returned home they found that Sarah had hanged herself. She left a suicide note that said she couldn't handle what others were saying about her.
--PureSight Online Child Safety Sarah Lynn Butler
1997-2009 Attribute means an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identify, physical appearance, health condition, or sexual orientation.
Bullying of a public school student or a public school employee is prohibited. Definition of Attribute Sawyer Rosenstein's life changed on May 16, 2006, when he was a 12-year-old student at Eric Smith Middle School in Ramsey, N.J. That day, another student punched him in the abdomen, sending a blood clot to his spine, and eventually paralyzing him from the waist down a week later. Three months before being punched, Rosenstein, then 12, emailed school officials to report he was being bullied and to ask for help.
"I would like to let you know that the bullying has increased," he wrote to his guidance counselor at the Eric Smith Middle School. "I would like to figure out some coping mechanisms to deal with these situations, and I would just like to put this on file so if something happens again, we can show that there was past bullying situations."
Rosenstein, who has been in a wheelchair for the past six years, is now a college student, and the case he and his family brought against the school district was settled this week for $4.2 million. The family's attorney, Jeffrey Youngman, told ABC News that this case is unique; he doesn't know of any other bullying case that has resulted in a larger settlement based on personal injury. School District Pays out $4.2 Million to Student Paralyzed by Bully Attack By Erin McLaughlin | ABC News Blogs
Thu, Apr 19, 2012 An electronic act means any communication or image transmitted by an electronic device (telephone, wireless phone or other wireless communications device, computer, or pager).
The “electronic act” can occur or originate anywhere (i.e., student’s home computer).
Ark. Code Ann. § 5-71-217 makes the offense of Cyberbullying a Class B misdemeanor (which is punishable by a fine of up to $1,000.00 and/or imprisonment for up to 90 days).
A person commits the offense of cyberbullying if:
He or she transmits, sends, or posts a communication by electronic means with the purpose to frighten, coerce, intimidate, threaten, abuse, harass, or alarm another person;
The transmission was in furtherance of severe, repeated, or hostile behavior toward the other person. How do you
get the evidence you need to establish a cyberbullying violation? What is Cyberbullying? AND Excerpt from USDOE
“Dear Colleague” letter dated
October 26, 2010: Why is bullying
a big deal? Turn it around Take Action “I don’t know why everyone’s making such a big deal out of this bullying stuff. It’s been going on in schools for YEARS. A little name-calling never hurt anyone; come on, kids will be kids!” Is this a common response in your school district?
How seriously does your staff/administration/Board take bullying? Destroys nurturing, supporting learning environment that school/district seeks to develop and maintain. “Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.” Not only address/end the problem complained of but take steps to keep the problems from occurring again!
Restore the positive environment for the student who was harmed by the bullying. What do you need to achieve in addressing bullying complaints? Why is it important?
How do you handle it?
Is it child maltreatment under Ark. Code Ann. §§12-18-402 (bullying) or 12-18-308 (cyberbullying)? Mandated reporter requirements?
Title VII or Title IX issues? A Few Questions to Ask Yourself FRANKLIN TOWNSHIP (Somerset County) — In an effort to raise awareness of the dangers of cyber-bullying, John Halligan shared the story of the his son’s death.
Ryan Halligan, 13, committed suicide in 2003 after years of being bullied and depressed.
“As a dad I had totally underestimated the impact of emotional bullying,” he told the crowd at Franklin Middle School Thursday.
When the teasing started in fifth grade, Ryan’s parents saw a plunge in his self-esteem and got him into therapy. In seventh grade, Ryan begged his parents to take him out of school after rumors spread that he was gay. His parents were unaware that Ryan began getting vulgar, homophobic e-mails.
One month after being humiliated by a girl who faked an online relationship with him, Ryan hanged himself. Dad uses son's suicide to show dangers of cyber-bullying while speaking at Somerset County school Published: Sunday, October 17, 2010,
By Tiffani N. Garlic/The Star-Ledger On May 12, 2010, a U.S. District Court jury in Arkansas returned a verdict in favor of Fayetteville School District (FSD) in a Title IX peer sexual harassment suit. The suit brought by Billy Wolfe, a former student, alleged that FSD failed to do enough to stop sexual harassment by his classmates.
Wolfe’s suit sought $2.5 million in damages. The Times reported that Wolfe’s attorney, Arthur Benson, argued that the school failed to act to stop harassment of Wolfe by other students that continued over several years.
This case started as a bullying case but was changed to allege violations of Title IX. Billy Wolfe Megan Meier, 13, began receiving nasty messages from a boy after a few weeks of an online flirtation with him, via her MySpace account, ending with one that suggested “the world would be a better place” without her. Megan, believing she had been rejected by "Josh," committed suicide in her home. Six weeks after Megan’s death, her parents learned that "Josh Evans" never existed. He was an online character created by Lori Drew, then 47, who lived four houses down the street. Because Ms. Drew, the mother of one of Megan's former friends, had taken Megan on family vacations, she knew the girl had been prescribed antidepression medication, Mrs. Meier said, and that she had a Myspace page.
In a highly unusual use of a federal law generally employed in computer fraud cases, a federal grand jury indicted Ms. Drew in May 2008 on charges that she had used a phony online identity to trick and taunt Megan. She pled not guilty to the charges and the case went to trial in November 2008.
--The New York Times
Friday, September 7, 2012 Megan Meier On April 2, 2009, the Megan Meier Cyberbullying Prevention Act was introduced in the U.S. House of Representatives.
The purpose of the bill is to amend the federal criminal code to impose criminal penalties (fines, up to 2 years imprisonment, or both) on anyone who transmits in interstate or foreign commerce a communication intended to coerce, intimidate, harass, or cause substantial emotional distress to another person, using electronic means to support severe, repeated, and hostile behavior.
No substantive action has been taken on the bill. Megan Meier
Cyberbullying Prevention Act
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