Hiring, Discipline, Dismissal and Transfer of Employees

1. LEGAL UPDATE: THE YEAR IN REVIEWRecent Court and Administrative Decisionsand The Dignity for All Students Actfor theAnnual Spring Speaker Series 2013of the Sage CollegesMarch 21, 2013JAY WORONA, Esq.General CounselThe New York State School Boards AssociationLatham, New York

2. Hiring, Discipline, Dismissal and Transfer of Employees Termination of Probationary Teachers Appeal of Stephenson The Commissioner of Education, in following precedent from the U.S. Supreme Court in Garcetti v. Ceballos, rejected a terminated probationary teacher’s free speech claim by ruling that a teacher has no first amendment protection in comments regarding the grades of students in her building and the academic integrity of the school during class time based upon the fact that such speech was not of public concern but rather was made in the course of her duties as a teacher.

3. Hiring, Discipline, Dismissal and Transfer of Employees Civil Service Employees-Termination Shenendehowa CSD Board of Education v. CSEA New York State’s highest upheld an arbitrator’s decision overturning a school district’s termination of a school bus driver for testing positive for marijuana use based upon the determination that the district’s actions were “inconsistent with the disciplinary procedures and penalties under the collective bargaining agreement” which was interpreted to require that the employee receive progressive discipline.

4. Hiring, Discipline, Dismissal Disciplinary Hearings Disqualification of School Board Members in School Employee Disciplinary Hearings Baker v. Poughkeepsie City School District New York’s highest court rules that although school board members are not automatically disqualified from taking part in voting to terminate employees even though they may have testified at that employee’s disciplinary hearing, they must disqualify themselves “where their testimony supports or negates the establishment of the charges preferred.”

5. School District Liability Applicability of Assumption of the Risk Defense Stoughtenger v. Hannibal Central School District A state appeals court ruled that a school district’s affirmative defense to a negligence lawsuit that students engaging in sporting activities “assume the risk” of their own injuries is ONLY applicable for students engaging in such activities in a voluntary capacity and not to students who are injured during their attendance in compulsory physical education courses.

6. Student Discipline Districts Can’t Discipline Students in the Absence of Complaining Witnesses. Appeal of a C.M. The Commissioner of Education ruled that in the absence of securing witnesses to an event in which certain students face disciplinary action, school principals who investigate the incidents and interview witnesses cannot themselves serve as complaining witnesses. The procedural requirements of the Education Law entitle students to face their complaining witnesses. In this case, fearing retaliation, student witnesses to assaults committed during “Kick a Jew Day” refused to come forward and testify.

7. Taylor Law Issues Application of No Layoff Provisions in Collective Bargaining Agreement Matter of the Arbitration between Johnson City Professional Firefighters Local 921 and Village of Johnson City • New York’s highest court reinforced the long-held rule that when a collective bargaining agreement contains a “no layoff” clause, the employer may nonetheless layoff employees and will not be required to arbitrate the meaning of that provision when the provision is so ambiguous that it violates public policy. Otherwise, said the Court, every budget decision a municipality makes will be routinely challenged by employees and its authority to abolish positions or terminate workers will be subject to an arbitrator’s whim.

8. School Funding Hussein v. State of New York New York State’s highest court ruled that a group of plaintiffs from 11 school districts outside New York City may continue with their lawsuit alleging their children are denied a sound basic education because their school districts are substantially underfunded.

9. Bullying in New York State Approximately 15-20% of the U.S. student population is bullied. 88% of secondary school students observed bullying. 77% stated they had been victims. 2010 Report Card on the Ethics of American Youth, Josephson Institute study found that 47.1% of high school students reporting having been bullied, teased or taunted in the previous year in a way that seriously upset them .

10. Bullying in New York State • Gay, Lesbian and Straight Education Network (GLSEN) survey of NY students: • 40% reported that bullying, name-calling, and harassment is a serious problem in school.

11. Bullying in New York State 57% reported students were bullied/harassed at least sometimes because of the way they expressed their gender. 52% reported students were bullied/harassed because they were or were perceived to be lesbian, gay, or bisexual…. While even though only 5% identified as being so.

12. Bullying in the News In Massachusetts, six teenagers charged in the suicide death of bullied 15-year old Irish freshman Phoebe Prince

13. Student Bullying Through Technology in the News Rutgers University student Tyler Clementi, whose roommate allegedly streamed video of him having sex with a man, killed himself. His last words, posted on Facebook about 10 minutes before he died, were brief and to the point: "Jumping off the GW bridge sorry." Tyler Clementi

14. Student Technology Use in the News Teenager struggled with bullying before taking his life By Sandra Tan, NEWS STAFF REPORTER , September 27, 2011, 4:39 PM Jamey Rodemeyer needed help. At 14, he was grappling with adolescent demons that could torment grown men. And when he was online, he wrote about it. "I always say how bullied I am, but no one listens," he wrote Sept. 9. "What do I have to do so people will listen to me?“ Just over one week later, Jamey was found dead outside his home of an apparent suicide.

15. The Obama Administration & Bullying • Largest focus in history by Obama administration. • US ED multiple front actions; guidance, conferences, enforcement. • Multi-agency approach.

16. Department of Education’s Office for Civil Rights (OCR) issues “Dear Colleague Letter” on bullying in October 2010!

17. Problems with OCR’s DCL letter… Shifts“actual knowledge standard” under U.S. Supreme Court precedent Davis v. Monroe County to “knows or reasonably should have known.” Redefines harassment from “severe, pervasive and objectively offensive” to “severe, pervasive OR persistent.” Redefines the effect of harassment from barring “access to an educational opportunity” to “interfer[ing] with or limiting a student’s ability to participate in or benefit from [school services].”

18. And, more problems with OCR’s DCL… • Redefines Title IX requirements from responding to peer harassment in a reasonable manner to eliminating harassment and a hostile environment. • Implies school districts that respond to harassment by changing the victim’s schedule or transportation means are punishing the student under Title IX. (See, Barnstable case). • Requiring school districts to “publicly label” incidents as harassment could violate FERPA if labeling results in identification of students.

19. The Push for the Dignity for All Students Act The Dignity for All Students Act arises out of legislative concern, born out of media coverage of egregious cases, to prevent bullying in the schools. While it does not use that word, that is its focus.

20. The Dignity for All Students Act • Adopted by the Legislature on June 22, 2010 as an enumerated anti-bullying bill. • Governor Patterson signed it into law September 8, 2010 • Effective date July 1, 2012

21. The Original Dignity for All Students Act Chapter 482of the Laws of 2010 added a new article 2 to the Education Law that prohibits discrimination against, and harassment of, students based on actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or other students on school property or at a school function. Effective July 1, 2012

22. The Dignity for All Students ActModel Language from SED –See Section 13 and8 NYCRR 100.2 (l) The Dignity for All Students Act requires school districts to:  • Revise their codes of conduct and adopt policies intended to create a school environment free from harassment and discrimination in age appropriate versions.  • Adopt guidelines to be used in school training programs to raise awareness and sensitivity of school employees to these issues and to enable them to respond appropriately.  • Designate at least one staff member in each school to be trained in non-discriminatory instructional and counseling methods and handling human relationsto be the Dignity Coordinator.

23. The Amended Dignity for All Students Act Chapter 482of the Laws of 2010 (DASA) did not contain the word “cyber bullying” and based, in part upon a survey conducted by Senator Klein, just before the legislature ended its session, it amended the Dignity Act to prohibit cyber bullying as a form of bullying and harassment. Effective July 1, 2013 (More on this in a few minutes)

24. The Dignity for All Students Act Provides tools and resources to afford all students – including targets/victims - an educational environment in which they can thrive. Education and prevention of harassment and discrimination before it begins.

25. The Dignity for All Students Act • Prohibits harassment by school employees and students on school property or at a school function. • Prohibits discrimination by school employees and students based on, BUT NOT LIMITED TO, actual or perceived: • Race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.

26. The Dignity for All Students Act • Schools already protect students from discrimination on the basis of race, color, national origin, gender and religion: • Title VI, Title IX, Title II and Section 504 • The Dignity act expands to harassment that is not related to a Federally protected characteristic and some categories overlooked/not protected by Federal law.

27. Other Dignity Act Implementation Issues • Dignity for ALL Students • Other vulnerable populations: refugees, homeless students; students in low socio-economic status • Barriers to communicating and involving parents of “marginalized’ students • Accommodations: i.e., bathrooms and locker rooms • Monitoring social media

28. Material Incident (100.2(kk)) • Starting with the 2012-2013 school year • A single incident or a series of related incidents where a student is subjected to discrimination and/or harassment by a student and/or employee on school property or at a school function that creates a hostile environment by conduct, with or without physical contact and/or by verbal threats, intimidation or abuse, of such severe or pervasive nature that: • Has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional and/or physical well being; or • Reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety.

29. Statewide Reporting (100.2(kk)) • Annual reporting on or before BEDS reporting deadline, or any other date as determined by the Commissioner • In a manner prescribed by the Commissioner • Material incident that is the result of the investigation of a written or oral complaint • Report shall include: • The type of bias involved – if multiple types, report all types • Whether incident resulted from student or employee behavior • Whether incident involved physical contact or verbal threats • Location of incident – on school property or at a school function

30. Provisions of the Amended Dignity Act • Inclusion of bullying and cyberbullying as prohibited activities • Definition of harassment/bullying – equivalent for purposes of the Dignity Act • Duty of staff to report incidents to building principal or superintendent or designee within specified timeframes orally and in writing • School professionals applying on or after July 1, 2013 for a certificate or license shall have completed training on social patterns of harassment, bullying and discrimination.

31. Definition of Harassment/Bullying Under the Amended Dignity Act: • Harassment and bullying shall mean the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that • (a) has or would have the effect of unreasonably and substantially interfering with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being; or • (b)reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; • (c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or • (d) occurs off school property and creates or would foreseeable create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.

32. definition(cont.) • Acts of harassment and bullying shall include, but not be limited to those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice; disability, sexual orientation, gender or sex. • For the purposes of this definition the terms “threats, intimidation or abuse” shall include verbal and non-verbal actions. • “Cyberbullying” shall mean harassment or bullying as defined above where such harassment or bullying occurs through any form of electronic communication.

33. Reporting requirement • Policies and procedures intended to create a school environment that is free from harassment, bullying or discrimination which: • identifies the principal, superintendent or designee as the school employee charged with receiving reports of harassment, bullying and discrimination • enable students and parents to make an oral or written report to school staff • require school employees who witness or receive a report of harassment, bullying or discrimination, to promptly orally notify the principal, superintendent or designee not later than one school day after and file a written report not later than two school days after making the oral report

34. Reporting/Investigation under the Amended Dignity Act • Principal, superintendent or designee to lead or supervise thorough investigation of all reports and ensure prompt completion of investigation • When investigation reveals verified harassment, bullying or discrimination, take prompt actions reasonably calculated to end harassment, eliminate any hostile environment, create a more positive school culture, prevent recurrence of behavior and ensure the safety of the student(s) against whom harassment was directed • Require principal to make regular report on data and trends related to harassment to the superintendent

35. Discipline under the Amended Dignity Act • Development of measured, balanced and age-appropriate responses to instances of harassment, bullying or discrimination • Remedies and procedures following a progressive model that makes appropriate use of intervention, discipline and education that vary in method according to: • nature of the behavior, • developmental age of the student • student’s history of problem behaviors • consistent with district code of conduct

36. CELL PHONE and INTERNET USE/DIGITAL NATIVES • Reports indicate more than 80% of kids in the United States have a cell phone and use the internet.

37. Cyberspace: A New Frontier • Access to the web through • Cell Phones (silent calls; abusive/threatening voice and text msgs; wars) • Computers (anonymous emails/msgs; stealing passwords) • Gaming Consoles • Conduct and activity on • Blogs (polls, “Who’s Hot/Not, etc.) • Microblogs (Twitter, Trillian, etc.) • Instant Messaging- (“Warn wars”; hard to trace) • Social Networks (Facebook, Myspace, Formspring) • Websites • Chat rooms • Video Games (chat, text-taunting, threats, bullying)

38. To Address Bullying, Do Schools Have Authority to Control Student Off-Campus Internet Activity?A Constitutional Analysis

39. Landmark Rulings of the United States Supreme Court -Free Speech Tinker v. Des Moines Independent Community SD The U.S. Supreme Court held that students are entitled to free speech protections but that such speech does not extend to speech which would materially and substantially disrupt the educational process of the school environment or that would impinge on the rights of others.

40. Exceptions to Tinker (1) Lewd and Indecent Speech In Bethel School District No. 403 v. Fraser, the United States Supreme Court upheld the suspension of a high school senior who gave a nominating speech at a school assembly laced with sexual innuendo even though the speech could not be shown to materially disrupt the school environment. The Court distinguished this case from Tinker holding that the school district acted within its authority in response to the use of vulgar or indecent speech in a school sponsored activity.

41. Exceptions to Tinker (2) School Sponsored Speech In Hazelwood School District v. Kuhlmeier, the United States Supreme Court ruled that even in the absence of showing substantial disruption, school officials did not violate the free speech rights of students by removing materials deemed objectionable from a school-sponsored newspaper for legitimate educational reasons.

42. Exceptions to Tinker (3) Speech which promotes illegal drug use In Morse v. Frederick the United States Supreme Court ruled that even in the absence of showing substantial disruption, the governmental interest in stopping student drug abuse allows schools to restrict student expression they reasonably regard as promoting illegal drug use.

43. New York State Commissioner of Education Decision (an example of deference for school authorities) Appeal of Ravick The Commissioner of Education held that a school district had authority to suspend a student who e-mailed an offensive message from a home computer to other students’ home computers because the district reasonably interpreted the e-mail as a threat to student safety and it substantially disrupted school operations.

44. Doninger v. Niehoff A high school junior brought suit alleging that her First Amendment rights were violated when the district barred her from running for senior class secretary after she posted a derogatory blog on an independent website stating that the “douchebags in central office” had canceled a school event and urged students and parents to call complaints into the district to “piss off” the superintendent. Federal appeals court with jurisdiction over NYS ruled for the district given the disruptive impact of the speech.

45. Wisniewski v. Board of Educ. of Weedsport CSD Federal appeals court with jurisdiction over all of New York State, held that a school district did not violate thefirst amendment free speech rights of a student for his being suspended after making a threat against his 8th grade English teacher from his home computer that was ultimately shared with the teacher by others and caused disruption at school.

46. Zeno v. Pine Plains CSD On December 3, 2012, a federal appeals court with jurisdiction upheld a $1 million dollar award against a school district after determining that a jury reasonably found the district had not sufficiently addressed the racial harassment targeted against one of its high school students by other students in the school because the districts actions were not reasonably calculated to end the harassment.

47. Long v. Murray County Public School District Pending before a federal appeals court with jurisdiction over the State of Georgia, this case involves the proper standard for imposing school district liability for peer harassment under federal anti-discrimination statutes. In this case, a disabled student committed suicide based upon alleged instances of continued harassment. A lower federal court ruled in favor of the school district finding that despite the existence of “severe and pervasive” harassment, the school district was unaware of it and therefore not legally liable because its response to the reported incidents had not been deliberately indifferent.

48. Requa v. Kent School District No. 415 A lower federal court upheld the suspension of an 18-year old student, who, with the help of 39 fellow students, surreptitiously videotaped his teacher on two occasions against school district policy and edited the video with graphics and music and posted the video on YouTube.com. The video commented on the teacher’s hygiene, showed students making faces behind her back, and making pelvic thrusts in her direction together with shots of her posterior and references to her “booty”

49. J.S. v. Blue Mountain School District On June 13, 2011, a federal en banc appeals court vacated its prior decisions holding that the School District had violated the student’s First Amendment free speech rights by suspending her for creating a derogatory parody of the school principal because: (1) the school district could not have forecasted substantial disruption of, or material interference with, school when the student created the profile; (2) the school district could not punish the student for use of profane language outside the school, during non-school hours; (3) the student's lewd, vulgar, and offensive speech that had been made off-campus had not been turned into on-campus speech when another student brought a printed copy of that speech to school at the express request of school principal

50. Layshock v. Hermitage School District On June 13, 2011, in an en banc decision the United States Court of Appeals for the 3rd Circuit, affirmed its prior decision holding that the School District had violated the student’s First Amendment free speech rights by suspending her because: (1) the student's “entering” the district's website to “take” the district's photo of the principal was not sufficient to forge a nexus between the school and the profile and (2) the school district did not have the authority to punish the student for engaging in expressive conduct outside of school that the district considered to be lewd and offensive.