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Recent Developments in the Law Round Table Discussion of Strategies

Recent Developments in the Law Round Table Discussion of Strategies. Presented by: Kathy A. Ahearn, Esq. Erin M. O’Grady-Parent, Esq. Guercio & Guercio, LLP 24 Century Hill Drive, Suite 101 77 Conklin Street

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Recent Developments in the Law Round Table Discussion of Strategies

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  1. Recent Developments in the LawRound Table Discussion of Strategies Presented by: Kathy A. Ahearn, Esq. Erin M. O’Grady-Parent, Esq. Guercio & Guercio, LLP 24 Century Hill Drive, Suite 101 77 Conklin Street Latham, New York 12110 Farmingdale, New York 11735 (518) 690-7000 (516) 694-3000 MASLA 36th Annual Summer Conference 164616 Guercio & Guercio, LLP 1

  2. Focus Today Guercio & Guercio, LLP Dignity for All Students Act (DASA) Employee and student conduct occurring off school grounds New York school safety review teams and school safety initiatives Students with disabilities and extra-curricular activities

  3. Guercio & Guercio, LLP DIGNITY FOR ALL STUDENTS ACT (DASA)

  4. Dignity For All Students Act (DASA) Initially enacted in 9/10, effective 7/1/12. Anti-discrimination, anti-harassment law that protects students from peers or adults on school grounds, buses, school events. Board of Regents approved implementing regulations in March, April, June and September 2012. Districts required to be in full compliance by 7/1/12. Guercio & Guercio, LLP 4

  5. District Responsibilities Under DASA Amend Code of Conduct to prohibit discrimination and harassment based on sex, gender identity, sexual orientation, weight, race, color, religion, religious practice, national origin, ethnicity, disability. Develop and implement policies to create a school environment that is harassment-free. Post Code on website, provide copies to staff, provide summaries of Code to students at the start of the school year. Develop guidelines to be used in training. Provide instruction in civility, citizenship and character education about discrimination based on the above categories. Report incidents of harassment to SED annually as prescribed by the Commissioner. Appoint DASA coordinators for each school building. Train coordinators and staff to prevent, recognize and respond to harassment. Design and implement a complaint investigation process. Guercio & Guercio, LLP 5

  6. 2012 DASA Amended Guercio & Guercio, LLP On July 9, 2012, the Governor signed Ch. 102 of the Laws of 2012 amending DASA. Districts must comply with amendments by 7/1/13. Amendments broaden the definition of “harassment” to include “cyberbullying” and any action that occurs “off school property and creates or would foreseeably 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.”

  7. Additional District Responsibilities Under Amended DASA Guercio & Guercio, LLP • Adopt procedures that: • identify the principal, super or designee as the person responsible for receiving harassment, bullying reports; • enable students and parents to make oral or written reports to teachers, administrators or other school personnel; • require school employees who witness harassment to promptly orally notify the principal, super, designee within 1 school day, and file a written report within 2 school days; • require thorough investigation of reports an proper remedial action; • prohibit retaliation; • include a strategy to prevent such conduct; • require principals to report data trends to superintendent; • require superintendent, principal or designee to promptly notify law enforcement if they believe that the actions constitute a crime; • include references to the Code of Conduct; • distribute policies annually to parents, students, staff; • maintain policies on the district’s website.

  8. New DASA Regulations Guercio & Guercio, LLP Regulations adopted in April, effective July 1, 2013, amend §§100.2 (c), 100.2(l), 100.2(kk) and 119.6 to conform to the 2012 changes in law: require district’s code of conduct to include expanded definition of harassment (including bullying and cyberbullying); include provisions regarding conduct occurring off school grounds, and include provisions for responding to acts; add new reporting requirements and prohibit retaliation; add requirements for additional instruction on bullying (including cyberbullying) and instruction in the safe and responsible use of the Internet and electronic communications.

  9. New DASA Regulations (cont’d) Guercio & Guercio, LLP Regulations adopted in May, effective July 1, 2013, amend §52.21 and Part 80, and add a new subpart 57-4, to require educators applying for a certificate or license on or after July 1, 2013 to have completed 6 clock hours of coursework or training in harassment, bullying and discrimination prevention and intervention. Regulations adopted in May also amend §100.2(jj) to expand the topics to be covered in employee training and to add standards for the Dignity Act Coordinator. District’s must conform their policies and procedures to conform with DASA and any regulatory amendments on or before July 1, 2013. NYSED task force continuing to meet and additional DASA guidance is anticipated.

  10. District’s Liability for Racial Harassment Guercio & Guercio, LLP In Zeno v. Pine Plains Central School Dist., 702 F.3d 655 (2nd Cir., December 3, 2012) a federal appellate court upheld a $1 million award against a school district finding that it was reasonable for the jury at trial to conclude that the district did not sufficiently address the racial harassment of a particular student.

  11. Zeno Guercio & Guercio, LLP During his freshman year in high school, Zeno transferred in to the district. Within a few weeks of his arrival, Zeno was the target of racial comments and harassment at school. The harassment continued for a period of over three and a half years during which time Zeno was subject to verbal harassment, threats and physical attacks. Zeno brought an action against the District alleging discrimination under Title VI of the Civil Rights Act of 1964 (“Title VI”).

  12. Zeno Guercio & Guercio, LLP In the educational setting, a school district is liable for intentional discrimination when it has been “deliberately indifferent” to teacher or peer harassment of a student. Court applied the “deliberate indifference” standard outlined by the U.S. Supreme Court in Davis v. Monroe County Bd. of Educ. (involving Title IX) to Zeno’s Title VI claims. Under this standard, liability only arises if a plaintiff establishes: 1) substantial control; 2) severe and discriminatory harassment; 3) actual knowledge; and 4) deliberate indifference.

  13. Zeno Guercio & Guercio, LLP Court found that a school district exercises substantial control over the circumstances of the harassment when it occurs “during school hours and on school grounds.” In order to be actionable, the harassment must be “severe, pervasive, and objectively offensive” and discriminatory in effect. The school district must have actual knowledge of the harassment; constructive knowledge is not enough. A school district’s actions are only deliberately indifferent if they are “clearly unreasonable in light of the known circumstances.”

  14. Zeno Guercio & Guercio, LLP Court found that it was reasonable for jurors to conclude that the harassment was “severe, pervasive, and objectively offensive.” Court further found that it was reasonable to conclude Zeno was deprived of educational benefit, finding he accepted an IEP diploma and withdrew from school without completing his education. Court also found that it was reasonable for the jury to conclude that the District’s remedial response was inadequate – and deliberately indifferent.

  15. Zeno Guercio & Guercio, LLP • In finding “deliberate indifference” the court focused on the following: • Although the district disciplined many students who harassed Zeno “it dragged its feet” before implementing any non-disciplinary remedial action (e.g. training) – by a delay of a year or more. • Remedial actions were “little more than half-hearted measures” (e.g. attendance at training optional; first bias-specific training not offered until 21 months after start of harassment). • District ignored signs that more direct action was needed – discipline did not stop harassment; harassment grew increasingly severe over time; district rejected offers by NAACP and others to provide training; Title VI officer never conducted an investigation.

  16. Zeno Guercio & Guercio, LLP “Although actually eliminating harassment is not a prerequisite to an adequate response … the District’s actions could not have plausibly changed the culture of bias at [the h.s.]… or stopped the harassment…” “Responses that are not reasonably calculated to end harassment are inadequate.” Court acknowledged that courts must “accord sufficient deference to the decisions of school disciplinarians.” However, “the sufficiency of a response … must be considered ‘in light of the known circumstances’ and as the ‘known circumstances’ change, the sufficiency of a response may also have to evolve.”

  17. Harassment & Student Discipline Guercio & Guercio, LLP In Appeal of C.M. (Decision No. 16,439, December 24, 2012) the Commissioner strongly urged the district to be proactive in taking steps to intervene and protect its students from being subjected to harassment, bullying and discrimination.

  18. Appeal of C.M. Guercio & Guercio, LLP Student C.M. was suspended by the principal for 3 days for participating in an anti-Semitic incident referred to as “Kick a Jew Day” where non-Jewish students kicked Jewish ones. The parents appealed C.M.’s 3-day suspension on the grounds that they were denied the opportunity to question the complaining witnesses when they met with the principal. The complaining witnesses had requested confidentiality for fear of retaliation.

  19. Appeal of C.M. Guercio & Guercio, LLP The Commissioner sustained the appeal holding that petitioner was denied the statutory right (Education Law §3214[b][1]) to meet with the principal and to question the complaining witnesses. Although the suspension was ordered to be expunged, the decision also included strongly worded dicta noting that the student’s behavior was “totally unacceptable” and warranted a suspension. “It is apparent from this record that respondent [district] needs to establish a more positive school culture based on tolerance, so that no student is subjected to a hostile school environment.” The Commissioner urged district “through instruction in civility, discipline or other interventions to address the intolerance and discrimination that led to the incident involved in this appeal.”

  20. Lessons Learned Guercio & Guercio, LLP Zeno and Appeal of C. M. highlight the importance of taking prompt and reasonable steps to prevent and address bullying and harassment. Implementation of new DASA requirements is critical.

  21. Guercio & Guercio, LLP Dealing with Conduct of Students and Staff Off School Grounds

  22. Teachers & Social Media First Amendment Analysis – Speech as a Public Employee vs. Private Citizen • In analyzing First Amendment cases in the public employment context, courts first decide whether the public employee expressed views as a citizen or as a public employee pursuant to official duties. • First Amendment does not protect a public employee’s speech made pursuant to official duties – thus, such speech is not protected. • Garcetti v. Ceballos, 547 U.S. 410 (2006) Guercio & Guercio, LLP

  23. Private Citizen Speech • Speech on any matter of political, social or other concern to the community is protected by the First Amendment. Connick v. Meyers, 461 U.S. 138, 147 (1983). • Speech on personal matters is not protected. Guercio & Guercio, LLP

  24. Teacher MySpace Speech • In Spanierman v. Hughes, 576 F. Supp.2d 292 (2008), a federal court in Connecticut upheld a district’s discipline of a teacher for inappropriate communication with students, where the teacher used his MySpace page, which contained pictures of naked men, to develop relationships with his students. The court rejected his First Amendment claim and called his behavior unprofessional and disruptive of the learning environment. Guercio & Guercio, LLP

  25. Basis of Disruption • Students complained • “[o]nline exchanges the [teacher] had with students show a potentially unprofessional rapport with students, and the court can see how a school’s administration would disapprove of, and find disruptive, a teacher’s discussion with a student about ‘getting any’ (presumably sex), or a threat made to a student (albeit a facetious one) about detention…the [teacher] would communicate with students as if he were their peer, not their teacher. Such conduct could very well disrupt the learning atmosphere of a school, which sufficiently outweighs the value of the [teacher’s] MySpace speech.” Guercio & Guercio, LLP

  26. “Drunken Pirate” Case • In Snyder v. Millersville Univ., 2008 WL 5093140 (E.D. Pa. 2008), a Federal court in Pennsylvania upheld decision of public university to deny certification to a student teacher just prior to graduation when school officials found a photo on her MySpace page showing her in a pirate hat drinking alcohol. There was evidence that the student teacher had disclosed to students that she had a MySpace account but it was disputed whether any students actually saw it. • Applying the standard for teachers, the court held that her website posting was not speech that touched on matters of public concern but was merely personal, thus not protected by the First Amendment. Guercio & Guercio, LLP

  27. Teacher Facebook Postings Guercio & Guercio, LLP New Jersey appellate court recently upheld the dismissal of a teacher for Facebook postings (Matter of O’Brien, 2013 WL 132508 [N.J. Super. A.D., January 11, 2013]). O’Brien, a 1st grade teacher posted two statements on Facebook concerning students. District sought her dismissal, O’Brien claimed her comments were protected by the First Amendment. ALJ and courts rejected her claims.

  28. Teachers & Facebook Guercio & Guercio, LLP Found that O’Brien’s remarks did not address a matter of public concern but rather were a “personal expression” of dissatisfaction with her job. Further found that even if O’Brien’s comments were a matter of public concern, her right to express her views was outweighed by the district’s need to operate its schools efficiently. Penalty of dismissal upheld in light of severity of conduct; ALJ and Commissioner determined she was unrepentant and that her actions were not a mere “momentary lapse in judgment.”

  29. Discipline Under New York Law • If teacher is tenured, proceed under §3020-a, as district would with any other charge. • Be mindful of First Amendment rights. • Balance the interests of the citizen vs. public employee; speech re: personal issues vs. matters of public concern; against the employer’s interest in promoting efficiency of the services performed. • In cases of inappropriate communication with students, the “public concern” rationale does not shield the teacher. SeeCity School District of the City of New York v. McGraham, 2011 WL 5570776 (N.Y. Ct. of Appeals, November 17, 2011). Guercio & Guercio, LLP

  30. Illustrative Case Involving Emails and Blog Entries City School Dist. of City of New York v. McGraham, 2011 WL 5570776 (N.Y. Court of Appeals, November 17, 2011). • 36-year old tenured teacher subject to §3020-a charges as a result of improper conduct with a 15-year-old student. Teacher found guilty of charges that she sent inappropriate emails and IMs to student outside of school hours. In upholding charges, arbitrator also considered blog entries of teacher as to her state of mind and meaning of her emails. Court upheld arbitrator’s award of 90-day suspension of teacher. Guercio & Guercio, LLP

  31. Monitoring of Employees Off Campus Guercio & Guercio, LLP In Cunningham v. NYS Dep’t. of Labor, 89 A.D. 3d 1347 (3d Dept. 2011), court upheld the determination of a Section 75 Hearing Officer finding an employee guilty of misconduct, supported, in part, by information obtained from a GPS device surreptitiously attached to the employee’s car after the Department had reason to suspect the employee was falsifying time records and traditional surveillance techniques had been thwarted by the employee. Court found use of device reasonable at its inception and in scope. Appeal pending with NYS Court of Appeals.

  32. Student Off Campus ConductWhat We Know So Far… • Off campus conduct CAN be regulated if it disrupts the educational process or endangers the health and safety of students. • BUT if the conduct at issue constitutes speech, the First Amendment is implicated. • Supreme Court in Tinker v. Des Moines held student speech can be subject to regulation if it is substantially disruptive or materially interferes with school activities or is reasonably forecast to do so. Guercio & Guercio, LLP

  33. What Have New York Courts Said? • Wisniewski v. Board of Education of the Weedsport CentralSchool District,494 F.3d 34 (2d. Cir., 2007) – Second Circuit upheld a student’s suspension for off campus electronic speech. • Student created an icon on his parent’s computer depicting the shooting of a teacher who he identified by name. • The icon was sent by IM to classmates, one of whom informed the teacher and later sent the teacher a copy at teacher’s request. • The teacher brought the icon to the attention of the police, who questioned the student and concluded it was not a real threat and intended as a joke. • The student was suspended for one semester. • He brought suit, alleging he was improperly disciplined in violation of his First Amendment right to free speech. Guercio & Guercio, LLP

  34. Wisniewski - Continued • Second Circuit held that the fact that icon was created transmitted off school property did not insulate the student from discipline, since the New York courts have consistently recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school. • It was “reasonably foreseeable” that the icon would come to the attention of school authorities and the targeted teacher: the potentially threatening content of the icon and the extensive distribution of it - 15 recipients, including some classmates, during a three-week circulation period - made this risk at least foreseeable to a reasonable person, if not inevitable. • Therefore, there was a reasonably foreseeable chance that the communication would materially and substantially disrupt work and discipline in school (under Tinker). • Discipline imposed under these facts did not violate student’s First Amendment rights. Guercio & Guercio, LLP

  35. What Have New York Courts Said? • Doninger v. Niehoff, 527 F3d 41 (2d Cir 2008) -- student posted a vulgar and inaccurate message about the cancellation of a school event on an off-campus, independent, publicly accessible blog, calling school officials “douche bags” and encouraging others to “piss off” the superintendent. • Student had been warned in a previous meeting with principal that posting of blog would not be the way to resolve complaints with administration. • The blog resulted in numerous emails from students to administrators, a threatened “sit in”, students being called away from class in the administration’s attempt to de-escalate the dispute. • As discipline, the principal disqualified the offending student from running for Senior Class Secretary; no other discipline was imposed. Guercio & Guercio, LLP

  36. Doninger, continued • Student sued, claiming violation of First Amendment rights. • Court held the blog “created a foreseeable risk of substantial disruption to the work and discipline of the school.” (Tinker standard). • Therefore, the discipline did not violate the student’s first amendment rights. • Two Caveats: (1)at stake here was the privilegeof running for office, not the right to an education. Would result be the same if student was suspended from school? The Court was not faced with this question. (2) The Court refused to address whether satisfying the Fraser standard alone (plainly offensive, vulgar language) would be sufficient to discipline off-campus conduct. It instead decided that only the Tinker standard (substantial disruption) was met, and is applicable to off-campus conduct. Guercio & Guercio, LLP

  37. Our Advice • Use the “conventional”, i.e.,Tinker exception to the First Amendment to regulate off-campus electronic speech (actual or reasonably foreseeable disruption). • Don’t do nothing, don’t do too much – if there is no actual or foreseeable disruption, consider discipline alternatives. • Focus especially on whether the communications harass or discriminate against a student protected under federal law or DASA (protected classifications). Guercio & Guercio, LLP

  38. Student Speech Discipline Guercio & Guercio, LLP The Appellate Division, Third Department, in Matter of Saad-El-Din v. Steiner, 101 A.D.3d 73 (October 25, 2012) confirmed a decision of the Commissioner (Decision No. 16,106) which upheld a 30 day suspension of a student who stated to a teacher and another student that he was going to “blow this place up” and warned the teacher that “she should not come to school on Friday.”

  39. Saad-El-Din Guercio & Guercio, LLP Commissioner upheld suspension. The parent of the student appealed the Commissioner’s decision alleging that the suspension of the student, absent evidence of or a determination that he actually intended to carry out the threat, was arbitrary and capricious and a violation of the First Amendment. The court held that school administrators need not prove either actual or inevitable disruption “rather, the question is ‘whether school officials might reasonably portend disruption from the student [speech] at issue’” (quoting Doninger v. Niehoff, 527 F3d. 41 [2d Cir. 2008]).

  40. Saad-El-Din Guercio & Guercio, LLP Whether the student “uttered the statements as a joke or never intended to carry out the threat is irrelevant.” It was reasonably foreseeable that such a threat to blow up the school would create a substantial disruption within the school. The statement was made to fellow students and prompted school officials to contact the police. “Given the uncontested proof that [the] student … made the threatening statements at issue and the disruption within the school which reasonably resulted from those statements, we find no basis upon which to disturb the Commissioner’s determination.”

  41. School District Liability The Court of Appeals reaffirms in Stephenson v. City of New York, et al., 19 N.Y.3d 1031 (October 18, 2012) that a school’s common law duty to adequately supervise students does not generally extend to injuries occurring beyond school premises. Guercio & Guercio, LLP 41

  42. Stephenson Guercio & Guercio, LLP One student was assaulted by another student two blocks from school prior to school hours. Just two days before, the same two students had been involved in an altercation on school grounds. That incident resulted in in-school suspensions for both students. The parents of the student who was assaulted off school grounds sued the school district alleging that it failed to ensure their son’s safety from the assault. The parents also alleged the district failed to inform them of the threat of harm.

  43. Stephenson Guercio & Guercio, LLP Relying on prior rulings, the Court noted that the district’s duty of care does not generally extend beyond school premises. The court found that the injured student was adequately supervised at school and the school district addressed the altercation that occurred on school grounds. The court further found that the second altercation was “out of the orbit of the school’s authority” as it occurred away from school grounds and before school hours. Court also noted that districts have no statutory duty to inform parents about “generalized” threats made at school and the circumstances did not give rise to a common-law duty to notify the parents of threatened harm posed by a third party.

  44. Guercio & Guercio, LLP School Safety

  45. New York State School Safety Requirements Guercio & Guercio, LLP District-wide School Safety Plans (Education Law §2801-a; 8 NYCRR §155.17) Building Level School Safety Plans (Id.) Codes of Conduct (Education Law §2801; 8 NYCRR §100.2[l][2][i]) Violent and Disruptive Incident Reporting (VADIR) Dignity for All Students Act (DASA)

  46. Recent School Safety Initiatives Guercio & Guercio, LLP NY SAFE Act of 2013 – Chapter 1 Laws of 2013 Addsa new §2801-b to the Education Law to authorize the Governor to establish NYS School Safety Review teams (comprised of representatives from the division of homeland security, state police, CJS and SED) to review school safety plans of school districts (excluding the big 5) and BOCES on a voluntary basis. Law increases the amount of state building aid by a rate of 10% for purchase of security devices. Also amends the Penal Law to increase the penalty for possession of a firearm on school grounds from a misdemeanor to a Class E felony.

  47. Regents Safe Schools Task Force Guercio & Guercio, LLP • Convened by Board of Regents to advise SED in the following areas: • Effectiveness of current regulations and guidance governing school safety; • VADIR and DASA reporting systems; • Effectiveness of district and school building safety plans in preparing students and educators for emergency events; • The use of the Diagnostic Tool for School and District Effectiveness (DTSDE) to examine school climate and culture; and • The role and responsibility of the New York State Center for School Safety (NYSCSS). • First meeting of Task Force held May 8, 2013. • Recommendations will be made to Board of Regents.

  48. Students with Disabilities and Extra-Curricular Activities Guercio & Guercio, LLP New guidance issued by the U.S. Office for Civil Rights (“OCR”) on January 25, 2013 clarifying schools’ obligations under Section 504 of the Rehabilitation Act of 1973 (“Section 504”) to provide Equal Opportunities to Students with Disabilities to Participate in Extracurricular Athletics.

  49. OCR Guidance Guercio & Guercio, LLP Section 504 requires school districts to provide a qualified student with a disability an equal opportunity to benefit from the school’s program, including extracurricular athletics. Districts must make reasonable modifications and/or provide aids and services to ensure an equal opportunity to participate, unless it would be a “fundamental alteration” to the program. Notes that law does not require that a student with a disability be allowed to participate in a selective or competitive program, so long as the selection or competition criteria are not discriminatory.

  50. OCR Guidance Guercio & Guercio, LLP • Guidance letter provides examples of the types of reasonable modifications that may be required: • visual start clue for hearing impaired track runner; • one-hand touch for swimmer with only one hand; • assistance with glucose testing and insulin administration for diabetic student during extracurricular activities. • Guidance urges school districts to work with community organizations to increase athletic opportunities for students with disabilities (e.g. creation of a regional wheelchair basketball team).

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