Education Law Report
A Publication of Ancel, Glink,
Diamond, Bush, DiCianni & Krafthefer, P.C.
Number 2 -- November 1999
To view this edition in PDF format, click here.
School Violence Issues Take Center
Stage:
Addressing Student Aggression and School Safety
Metal Detectors: Coming Soon to
a Kindergarten Near You?
Special Education Update:
IDEA Final Regulations Issued
School District Responsible for Medically
Related Services
Finance and Operations:
TIF Reform is the Law
Regulatory Developments:
An Update on the E-Rate
Get the "Bugs" Out of
Your Pesticide Policy
Preventing Sexual Harassment:
Walking the Razor's Edge
School Districts in the News
Firm News
School Violence
Issues Take Center Stage
The 1998-99 School Year rocked the nation from Littleton, Colorado
to Washington, D.C. This year, school officials have come face to face with
school violence issues, asking questions like, “How do we protect students
from each other? And how do we protect students’ rights in the process?”
This volume of the Education Law Report focuses on a review of legal principles
relating to school violence, as well as recent developments in this arena.
Addressing Student Aggression and School
Safety
As the recent events in Decatur, Illinois demonstrate, school officials
must strike a delicate balance between students’ constitutional rights
and maintenance of a safe and secure learning environment. The law is clear
that students do not “shed” their rights to speak or express themselves,
or their protections against unreasonable searches and seizures, at the
“schoolhouse gate.” Also, students who face disciplinary action
are entitled to procedural and substantive due process. At the same time,
school discipline is an area in which school officials are cloaked with
broad statutory and common-law discretion.
Illinois courts have been reluctant to overturn decisions to suspend
or expel students, particularly in matters affecting student safety, and
recent trends in judicial decisions seem to indicate the courts’ increasing
deference to school boards’ discretion in dealing with these issues.
As one Illinois Judge put it, “school officials are trained and paid
to determine what form of punishment best addresses a particular student’s
transgression. They are in a far better position than is a black robed judge
to decide what to do with a disobedient child at school.” Donaldson
v. Board of Education of Danville School District No. 118.
For example, remember that Section 10-22.25b of the Illinois School Code
gives school boards the power to adopt school uniform or dress code policies
“necessary to maintain the orderly process of a school function or
prevent endangerment of student health or safety.” 105 ILCS 5/10-22.25b.
A district exercised this type of power by adopting a school policy prohibiting
male students from wearing earrings which demonstrated gang affiliations.
The Illinois court upheld the district’s actions. Olesen v. Board of
Education of School District No. 228. Similarly, a California court upheld
a ban on professional sports insignia for high school students because of
demonstrated connection to gang activity; however, the same policy was found
unconstitutional as applied to middle and elementary schools because the
school district could not prove a direct relation to gang activity at that
educational level. Jeglin v. San Jacinto Unified School District. (Note:
High school students do not hold a monopoly on gang activity. Attorneys
from our firm have been involved in gang-related expulsion hearings for
students as young as first grade.)
Another historical tool used by districts to combat student aggression
in their schools are locker, automobile and body searches. These searches
may implicate students’ fourth amendment protections against unreasonable
searches and seizures. “Fourth Amendment rights * * * are different
in public schools than elsewhere; the ‘reasonableness’ inquiry
cannot disregard the schools’ custodial and tutelary responsibility
for children. For their own good and that of their classmates, public school
children are routinely required [to do a variety of things]. * * * ‘[S]tudents
within the school environment have a lesser expectation of privacy than
members of the population generally.’” New Jersey v. T.L.O.
Thus, in balancing the competing interests of a school’s need to maintain
a proper educational environment and the schoolchild’s legitimate expectations
of privacy, teachers and school officials do not need a warrant before searching
a student and are not subject to the strict probable cause standard. Rather,
the legality of a search of a student should depend simply on the reasonableness,
under all the circumstances, of the search.
The recent infusion of police and safety officers into schools presents
new issues. Where school officials initiate a search or police involvement
is minimal, most courts have held that such searches must merely satisfy
the “reasonable suspicion” test. Martens v. District No. 220.
The same is true in cases involving school police or liaison officers acting
on their own authority. However, where outside police officers initiate
a search, or where school officials act as “agent” of law enforcement
agencies, the search must meet the higher “probable cause” standard
applicable to searches in criminal investigations. To illustrate the distinction,
in People v. Dilworth, a liaison police officer on the staff of an alternative
school conducted a search on his own initiative and authority in furtherance
of the school’s attempt to maintain a proper educational environment.
Under those circumstances, the court held that the lesser “reasonable
suspicion” standard applied.
Another arrow in school officials’ quivers is their in loco parentis
(“in place of the parent”) status. While some recent cases may
have diminished protections to school officials acting in loco parentis,
the doctrine still provides some protection against liability. Acting in
loco parentis extends “parental immunities” to school officials.
This type of immunity extends only as far as actual parental immunity, and
educators are therefore not statutorily immune from liability for conduct
outside the scope of parental discretion in discipline, supervision, and
care of a child. Henrich v. Libertyville High School. The preservation of
order and a proper educational environment requires close supervision of
schoolchildren, as well as the enforcement of rules against conduct that
would be perfectly permissible if undertaken by an adult. However, “what
so many of the courts persist in talking about as a parental relationship
between school and student is really a law enforcement relationship in which
the general student society is protected from the harms of anti-social conduct.”
Buss, The Fourth Amendment and Searches of Students in Public Schools.
The effect of in loco parentis was profound in one recent case, where
a high school counselor was found not liable for failing to respond to information
that a student had threatened suicide. Both the counselor and the school
district were entitled to immunity under section 24-24 of the School Code
in an action brought by the mother after the student committed suicide,
where the counselor had contacted the boy’s mother and advised her
to take the student to the hospital, albeit for a drug overdose. According
to the court, while the counselor’s failure to disclose the suicide
threat may have been negligent, the district could not be found liable where
there was no showing of conscious disregard or indifference for student’s
safety. Grant v. Board of Trustees of Valley View School Dist. No. 365-U.
In additon to more favorable court rulings, school districts are getting
renewed support through legislative initiatives. Both the federal and state
legislatures have enacted laws to give school officials additional tools
for addressing school violence issues, including the Gun Free Schools Act
of 1994 (federal), and the Safe to Learn Program (state).
As school officials continue to use traditonal and contemporary “pounds
of cure” vehicles to respond to destructive student behavior, they
must also investigate and establish effective “ounce of prevention”
strategies to make their school buildings safer, and to better train staff
members on intervention techniques. According to the United States Department
of Education in its “Guide to Safe Schools,” effective prevention,
intervention, and crisis response strategies operate best in school communities
that, among other factors, involve families in meaningful ways; develop
links to the community; emphasize positive relationships among students
and staff; treat students with equal respect; promote good citizenship and
character; and support students in making the transition to adult life and
the workplace.
In addition, school personnel should receive training on behavior intervention
techniques for proper verbal and nonverbal reactions to calm situations
before they gets out of hand. Proper training gives staff the knowledge
and confidence when confronted by an escalating student. For instance, staff
are advised to focus on what the student is actually saying or doing, rather
than becoming fearful and distraught.
It is all too obvious that preventive measures can not always ensure
appropriate student conduct. Similarly, the existence of a strong disciplinary
code will not always have the desired deterrent efffect, and districts must
work with their legal counsel and be prepared to mete out disciplinary responses
to student misconduct in a lawful manner. Most significantly, prior to suspending
or expelling a student from school, sufficient due process (including an
opportunity to tell his/her side of the story) must be afforded the student.
Goss v. Lopez. At a minimum, timely notice of the charges and a meaningful
opportunity to respond to them must be provided Cleveland Board of Education
v. Loudermill. Due process is a flexible concept determined by the nature
of the interest affected and the context in which the alleged deprivation
occurs. Thus, fundamental concepts of a fair hearing include “the opportunity
to be heard, the right to cross-examine adverse witnesses and to impartiality
in rulings upon evidence.” Colquitt v. Rich Township.
The proliferation of high-profile violent acts on school property requires
a re-assessment of how schools should address student aggression and school
safety. School districts must maintain the delicate balance of creating
a safe and secure learning environment without running afoul of students’
constitutional rights. School districts are, indeed, a microcosm of our
larger society, and the problems facing schools are symptomatic of larger
issues facing our communities as a whole. As such, school board members,
administrators, teachers, social workers, and others, including legislators
and policy-makers must work together to ensure schools retain the ability
to balance individual rights and community values.
Return to Table of Contents
Metal Detectors—
Coming Soon to a Kindergarten Near You?
Metal detectors in schools
may assuage the public outcry for improved safety. However, before rushing
to install metal detectors, school districts need to weigh the costs, both
to public finances and to personal freedoms, against the perceived safety
benefit.
The Department of Education estimates that four percent of the country’s
twenty-five thousand public schools use metal detection. Illinois, as well
as other states, is likely to be pressured to provide funding for metal
detection technology, and school districts will no doubt line up to participate.
But how much does metal detection technology really cost?
Hand held metal detectors, i.e., “wands” start at around
two-hundred dollars each. Floor style metal detectors similar to the ones
used in airports and courthouses cost upwards of three thousand dollars.
A four camera video surveillance system also costs around three thousand
dollars. In addition to the hardware costs are the expenses of training
personnel to administer the metal detection technology. The cost of such
technology does not appear to be discouraging sales. One California-based
security equipment company spokesman estimated his company took orders from
forty-seven schools in twenty-three states within one month of the Columbine
High School shootings.
Beyond the financial aspect, the use of metal detection technology may
cause some school boards to wonder whether the danger justifies turning
schools into public institutions more akin to a courthouse, than to the
little red school house they remember. When metal detectors are installed,
students’ fourth amendment rights against unreasonable search and seizure
are tested. The question becomes, what is reasonable?
Schools’ use of metal detectors has withstood a recent challenge
in the Illinois courts. In People v. Pruitt, the school was conducting a
random metal detector search which was administered by the Chicago Police
Department and involved all students entering the building. (Metal detectors
are now installed at all Chicago public high schools.) A student passed
through a metal detector which led to the confiscation of a .38 caliber
handgun. The student claimed the use of the metal detector was an unreasonable
search.
The court reasoned that an individualized reasonable suspicion of wrongdoing
is not necessary before a metal detection search is made. The court held
that school safety is a compelling state interest which outweighs the burden
of the relatively minor privacy invasion involved in metal detector searches.
The purpose of the random search of all the entering students was to protect
and maintain a proper educational environment for all students, not to investigate
or secure evidence of a crime.
No statistics are yet available which track any documented decrease of
violence in schools with metal detectors in place. As time passes, and public
sentiment calms in the wake of the Columbine High School incident, school
districts will have the opportunity to assess whether metal detection technology
is an effective component of a well thought out safe school plan.
Return to Table of Contents
Special Education Update
IDEA Final
Regulations Issued
On March 12, 1999, the U.S. Department of Education issued
the final implementation regulations for the Individual with Disabilities
Education Amendments of 1997. According to the Department, issuing the regulations
is a “part of the effort to strengthen educational opportunities for
America’s six million students with disabilities.”
“The new IDEA focuses on teaching and learning and establishes high
expectations for disabled children to achieve real educational results,”
said U.S. Secretary of Education Richard W. Riley. “The thrust of IDEA
has changed from one that merely provides disabled children access to an
education to one that improves quality for all children in our schools,”
he continued.
In October 1997, the Department of Education published proposed regulations
implementing the substantial revisions to the IDEA enacted into law earlier
that year. Nearly 6,000 public comments were submitted to the department
from educators, parents, community groups and advocates. A summary of the
changes include:
- requiring that each IEP team include at least one of the child’s
regular education teachers if the child is or may be participating in the
regular education environment;
- formalizing that a student’s right to a “free appropriate
public education” is terminated upon graduation with a regular high
school diploma, but not ended by any other kind of graduation certificate
or diploma;
- authorizing schools to remove a special education student for up to
10 school days for minor disciplinary infractions and for up to 45 days
for dangerous behavior involving weapons or drugs and giving schools the
ability to ask a hearing officer to remove students who are serious threats
to themselves or others;
- mandating the provision of services to the extent necessary to enable
the child to appropriately progress and advance the IEP during suspensions
of up to 10 school days.
Generally, the regulations strengthen the role of parents in educational
planning and decision making on behalf of their children. It focuses the
student’s educational planning process on promoting meaningful access
to the general curriculum. The Department of Education estimates that school
districts will “realize savings in excess of $100 million from changes
made by the IDEA ’97 that eliminate unnecessary evaluations, every
three years, to determine whether a child still has a disability. However,
these and other savings would be offset by increased costs associated with
such changes as the requirement for the regular education teacher to participate
in IEP meetings.”
School District
Responsible for Medically Related Services
The United States Supreme Court recently reaffirmed its position that
school districts must administer medically-related services to students
under Individuals with Disabilities Education Act. In the case, Cedar Rapids
Community School District v. Garret F., the Court held that the term “related
services” under the law includes those supportive services that “may
be required to assist a child with a disability to benefit from special
education,” including such medical services as urinary bladder catheterization,
suctioning a tracheostomy as needed, providing food and drink on a regular
schedule, repositioning, ambu bag administration if a ventilator malfunctions,
ventilator setting checks, and blood pressure monitoring. The Court clarified
its decision in Irving Independent School District v. Tatro, where it had
held that “medical services” that can only be performed by a physician
are not school health services.
In the Cedar Rapids case, the school district pointed to the combined
and continuous character of the required care, and proposed a test under
which the outcome in any particular case would depend upon. The court rejected
the school district’s proposed new standard, and importantly, held
that the definition in the statute does not refer to economic factors in
its definition of “related services” or excluded “medical
services.” Therefore, the court reasoned that if it accepted the district’s
cost-based standard as the sole test for determining the scope of the provision,
it would be engaging in “judicial lawmaking without any guidance from
Congress.”
On a more general note, the court stated that Congress intended “to
open the door of public education” to all qualified children and that
the IDEA “require[s] participating States to educate handicapped children
with nonhandicapped children whenever possible.” The court concluded
that because the student must receive the specific “services”
in order to remain in school, the district must fund such “related
services” to help guarantee that students are integrated into the public
schools.
Return to Table of Contents
Finance and Operations
TIF Reform Is
the Law
TIF reform legislation, long the subject of negotiations among municipalities,
school districts and other taxing bodies, the tax increment financing association
and legislators, took effect as P.A. 91-478 on November 1, 1999. Those municipalities
that decided to establish new tax increment financing districts (“TIF
districts”) in their communities or to amend existing districts or
existing redevelopment plans and projects under the old TIF Act have already
taken the necessary steps in the notice and hearing process. Henceforth,
new proposals and amendments are subject to the amended Act.
Among the amendments:
Eligibility Criteria
The standards for establishing “blighted” and “conservation”
areas are the same, but now are defined rather than simply being listed.
This specificity will permit greater uniformity in the application of the
criteria and make it easier to identify the factors. Some definitions are
more restrictive.
Joint Review Board (“JRB”)
(a) Township and fire protection districts have been added to the JRB for
all new TIF districts; (b) the evaluation of amendments to redevelopment
project areas and plans is now part of the JRB’s task, as is the question
for newly proposed districts of whether the redevelopment area plan satisfies
the objectives of the Act; and (c) although the report remains a non-binding
recommendation, the municipality must defer action on creating a TIF district
and meet with the JRB within 30 days of its report to “resolve differences”
if the JRB rejects the redevelopment plan and the eligibility report. If
those efforts fail, the municipality may still proceed to adopt the plan
and designate the area but needs a three-fifths vote of the corporate authorities
to do so.
Prohibited TIFs
Golf courses and recreation areas used for fishing and camping cannot be
designated as TIF Districts.
Redevelopment Project Costs
(a) The redevelopment plan must contain an itemized list of estimated costs;
(b) by means of certain percentage formulas related to the total tax increment
generated by new assisted housing units, overlapping school districts are
entitled to receive payments for increased costs resulting from those new
units; (c) professional service contracts (except for architects and engineers)
cannot exceed three years; (c) municipalities may not be paid for annual
administrative costs due to “general overhead” but can be paid
for such costs directly resulting from the TIF District; (e) at the municipality’s
discretion, the costs of “welfare to work” programs of businesses
in a TIF district may be added to eligible job training costs; (f) municipalities
can use TIF funds for a public building if it replaces one demolished to
accommodate private investment; (g) the new rules which govern TIF financing
of public works structures are very strict; and (h) no financing is permitted
for retail entities relocating from an area within 10 miles, but outside
of, the TIF district.
Registry
Municipalities must maintain a registry for “interested parties”
entitled to receive various required notices.
Annual Reports
The Act has added substantial new requirements to the already detailed annual
reports to be filed and sent to the taxing districts and other designated
persons. The reports, now filed with the State Comptroller, must describe
JRB activities, and public and private investments in the TIF projects.
Feasibility Study
Specific information must be included in the ordinance or resolution authorizing
a feasibility study of any proposed redevelopment project area. Moreover,
if the proposed plan anticipates displacement of residents from 10 or more
inhabited residential units, a housing impact study must be included in
the feasibility report.
This summary highlights some of the more significant changes implemented
through P.A. 91-478 and is not meant to list every new or revised provision.
Due to the length and complexity of the amendments, we recommend that you
consult with your attorney or TIF advisor for further information as to
the new Act’s impact upon your district.
Return to Table of Contents
Regulatory Developments
An Update on the
E-Rate
On February 7, 1996, President
Clinton enacted the Telecommunications Act of 1996. The Act significantly
reformed and deregulated television, telephone and cable industries by lifting
regulatory barriers preventing these industries from offering services or
competing in other segments of the telecommunications marketplace. One exception
to the “free market” concept is in the area of education. Section
254(h)(1)(B) provides,
All telecommunications carriers serving a geographic area shall, upon
a bona fide request for any of its services . . . provide such services
to elementary schools, secondary school, and libraries for educational purposes
at rates less than the amounts charged for similar services to other parties.
The discount shall be an amount ... to ensure affordable access to and use
of such services by such entities.
The National Center for Education Statistics recently reported that wealthy
schools are two times more likely to have Internet access in classrooms
than poor schools. Currently, only around 30% of classrooms are linked to
the Internet while 74% of Americans agree that computers improve the quality
of education.
On May 7, 1997, the Federal Communications Commission responded by adopting
regulations to provide all K-12 schools and public libraries up to $2.25
billion a year in discounts for telecommunication services ranging from
20%-to-90% on a sliding-scale formula, commonly referred to as the E-Rate.
The average discount is about 60%, with the poorest schools receiving discounts
of 80%-to-90%. The discount applies to Internet access and internal connections
necessary for connecting classrooms and libraries; the E-Rate does not cover
computers, software, or other unrelated services. By April 15, 1998, more
than 30,000 applications were submitted, requesting total discounts worth
$2.02 billion. Illinois accounted for approximately 6% of the total requests.
In the first year of the program, $1.66 billion in discounts was distributed
to 25,785 school and library applicants.
Under the Telecommunications Act, the Schools and Libraries Corporation
(SLC) is charged with reviewing and granting requests for discounted rates.
Schools and libraries must certify they have a technology assessment plan
demonstrating how discounts will enhance education. The plan must be approved
by the Illinois State Board of Education.
The Federal Communications Commission (FCC) reduced year one funding
levels by 40 percent and the length of the program’s first year was
extended to 18 months. As a result of those cuts, many schools did not receive
needed discounts on internal connections to the classroom. In late spring
1999, the FCC voted on funding levels for the E-Rate program for year two
(1999-2000) applications. Further information can be found at the FCC website
at www.sl.unversalservice.org.
Noting the receipt of 32,000 applications seeking over $2.4 billion in
e-rate discounts for this year, on March 12, 1999, William E. Kennard, chairman
of the Federal Communications Commission (FCC), announced his recommendation
to the Commission to fund the second year of the e-rate to the established
$2.25 billion cap. “With the increase in demand, funding to the cap
will enable us to continue the work of this past year,” Chairman Kennard
said. “Just as in Year One, all schools and libraries that apply this
year will receive funding for Internet access and telecommunications services.
And just as in Year One, we are keeping the focus on funding for internal
connections on the poorest and most rural schools. By following this course,
we will be able to wire over 528,000 classrooms to the Internet. If we meet
this high demand, we will be able to help schools that teach 40 million
American children.”
The E-Rate is crucial to ensure that every schoolchild and community
has access to needed technology tools for learning.
Return to Table of Contents
Get the "Bugs"
Out of Your Pesticide Policy
This summer, two laws outlining pesticide regulation in the schools
were signed by the Governor Ryan. The first new law, P.A. 91-99, amends
the Lawn Care Products Application and Notice Act and took effect July 9,
1999. The second new law, P.A. 91-525, amends the Structural Pest Control
Act and takes effect August 1, 2000. Both laws set notification procedures
for broadcast application of pesticides on school grounds, school buildings
and other school facilities.
Public Act 91-99—School Grounds
First, P.A. 91-99 sets notification procedures for broadcast application
of pesticides on schools grounds other than school structures. According
to this law, school districts must maintain a registry of parents and guardians
of students who wish to receive written notice before pesticides are applied
on school grounds. Schools may inform parents and guardians of the registry’s
presence and the procedure required for registry through newsletters, bulletins,
calendars, or other correspondence currently published by the school districts
(for example, letters sent home with the students or letters sent directly
to the residence of parents and guardians).
Alternatively, school districts may choose to provide direct, written
notification of pesticide application to all parents and guardians.
Public Act 91-525—School Buildings and Other School Facilities
The second new law, P.A. 91-525, requires (no longer simply encourages)
schools to adopt an Integrated pest management program if economically feasible.
The integrated pest management program must incorporate guidelines developed
by the Department of Natural Resources for structural pest control practice
at school buildings and other school facilifies. If, however, adopting an
integrated pest management program would not be economically feasible because
it would result in a substantial increase in the school’s pest control
cost, the school district must provide written notification to the Department
of Natural Resources. The notification must include projected pest control
costs for the term of the pest control program and projected costs for implementing
the integrated pest management for that same time period. The Department
of Natural Resources will make the notification available to the general
public upon request.
According to the new law, school districts must designate an employee
to oversee the pest control management program and to complete record keeping
requirements.
Like P.A. 91-99, the law mandates school districts to maintain a registry
of parents and guardians who wish to receive written notification prior
to pesticide application on school property. The same procedure outlined
above for registry and notification may be utilized.
Again, prior written notice is not required if there is imminent threat
to health or property. If a threat arises, the appropriate school personnel
must sign a statement describing the circumstances that gave rise to the
health threat and ensure that written notice is provided as soon as practicable.
Pesticides that are not subject to notification requirements under P.A.
Act 91-525 include: (1) an antimicrobial agent, such as disinfectant, sanitizer,
or deodorizer; or (2) insecticide baits and rodenticide baits.
Return to Table of Contents
Preventing Sexual
Harassment: Walking the Razor's Edge
Last fall we reported on the Supreme Court decision, in Gebser v.
Lago Vista Independent School District, 118 S.Ct. 1989 (1998), which
held that students and their families could recover money damages under
Title IX in caes involving teacher-student sexual harassment. In Gebser,
the Court found that liability can attach where a district has actual notice
of, and is deliberately indifferent to, a teacher’s sexual harrassment
of a student.
At the time Gebser was decided, there was a split in the Circuits
regarding what, if any, liability attaches to schools based upon student-to-student
harassment. In our own Seventh Circuit, in the case of Doe v. University
of Illinois, 138 F.3d 653 (7th Cir. 1998), the Court adopted the Gebser
standard, i.e., a school district may be liable for peer harassment if it
has actual knowledge that such harassment was taking place. However, the
Eleventh Circuit, in Davis v. Monroe County Board of Education, 120
F.3d 1390 (11th Cir. 1998), held the opposite, i.e., that Title IX
only provided an avenue of redress against recipients of federal funds,
and is silent as to any duty to prevent student-to-student harassment. Because
of the split in the Circuits, the Davis case was taken by the Supreme Court,
and on May 24, 1999, the court reversed the Eleventh Circuit.
The Decision
In Davis, the Court reviewed Title IX’s requirement that
it not discriminate on the basis of sex, and adopted the Gebser rationale
that a recipient of Title IX funds may be liable where it is deliberately
indifferent to known acts of sexual harassment. However, the Court went
on to find that liability arose not from the harasser’s conduct, but
from the official decision not to remedy the violation. Having reached this
conclusion, the Court went the next step to find that, even if the harasser
is a student, the school may remain liable where it is deliberately indifferent
to sexual misconduct by students towards students.
The Court supported its conclusion with a review of state court common
law decisions which have held that schools have been liable due to their
negligence in failing to protect their students from the torts of their
peers. The Court noted that its “deliberate indifference” standard
makes sense as a theory of liability under Title IX where the funding recipient
has some control over the alleged harassment.
The Court then ventured into language which may cause the most controversial
discussion in the next few years. The Court found that its ultimate conclusion
on the assumption that the state’s power over public school children
is custodial, thereby permitting “a degree of supervision and control
that could not be exercised over free adults.... The ability to control
and influence behavior exists to an even greater extent in the classroom
than in the workplace.”
The ruling did not offer any comforting wisdom as to what would constitute
“clearly unreasonable” responses as a matter of law. In fact,
the Court noted that the standard was likely to be quite flexible, noting
that a university might not, for example, be expected to exercise the same
degree of control over its students that a grade school would enjoy.
Title IX funding recipients are properly held liable in damages only
when they are deliberately indifferent to sexual harassment, of which they
have actual knowledge, that is so severe, pervasive, and objectively offensive
that it can be said to deprive the victims to access to the educational
opportunities or benefits provided by the school. Schools will be deemed
to be “deliberately indifferent” to acts of peer sexual harassment
only where the recipient’s response to the harassment, or lack thereof,
is clearly unreasonably in light of the known circumstances. Yet, despite
the strength of their holding, the Justices expressly acknowledged that
schools are unlike the adult workplace, and that children may regularly
interact in a manner that would be unacceptable among adults.
How high the hurdle is raised remains to be fleshed out in subsequent
decisions. The Court acknowledged the “dizzying array of immature behaviors
by students,” and that students are still learning how to interact
appropriately with their peers. The Court predicted that students will engage
in insults, banter, teasing, shoving, pushing, and gender-specific conduct
that is upsetting to students objecting to it. However, the Court said that
these kinds of acts are not enough; rather, the behavior must be so severe,
pervasive and objectively offensive that it denies its victims equal access
to education. The Court made vague reference to the probability that peer
harassment is less likely to constitute unlawful “interference”
with educational opportunities than would be created by teacher-on-student
harassment.
The Dissent
One of the most remarkable aspects of the decision is the strength of
the dissent. The dissent argued that the majority’s decision, in effect,
held the board vicariously liable for the acts of a third party, which acts
were not part of the school’s programs. The dissenters viewed the theory
of direct liability on the board (for its failure to act) as a distinction
without a difference.
The dissent pondered that the majority’s decision invokes liability
where the fund’s recipient has control over the offending harasser.
By contrast, Title VII’s liability is imposed when the alleged harasser
is an agent of the employer. The Gebser decision supposedly invoked liability
under Title IX than was less expansive than Title VII. Yet, in this case,
the district and its exercise of control has a broader reach than the scope
of its agents. Accordingly, Title IX liability arguably extends farther.
The dissent took strong issue with whether a school’s liability
for a teacher’s misconduct should be the same as for a student’s,
inasmuch as a school’s control over its students is much more complicated
and limited than it is for teachers.
The dissent noted the inherent tension between aggressive remediation
actions, such as expulsions and suspensions, and the pre-deprivation due
process rights afforded students. The dissenters also pointed out the collision
course that the majority’s decision had run into with the alleged harasser’s
due process rights. According to the dissent, the majority decision would
require schools to suspend or expel students who are accused of sexual harassment.
Also, the dissent noted the limits placed on schools regarding discipline
against students with behavior disorders under the IDEA. The dissent wondered
if behavior which constituted actionable peer sexual harassment was so different
from normal teasing and jostling by adolescents that it may raise a colorable
claim that the alleged harasser has a severe emotional disturbance within
the meaning of the IDEA.
The dissent noted that the practical obstacles that schools encounter
in ensuring that thousands of immature students conform their conduct to
acceptable norms may be even more significant than the legal obstacles.
School districts cannot exercise the same measure of control over thousands
of students that they do over a few hundred adult employees. From this perspective,
the dissent vigorously disagreed with the majority’s assumptions about
school control over primary and secondary school students, and the majority’s
failure to deal meaningfully with the distinction between elementary and
secondary schools on the one hand and universities on the other.
Universities present their own problems. Courts have held that a university’s
power to discipline its students for speech that may constitute sexual harassment
may also be limited by the First Amendment. For example, a university which
has sanctioned a fraternity for conducting an “ugly woman” contest
with “racist and sexist” overtones, was found liable for violating
the alleged offenders’ First Amendment rights.
All in all, the dissent lamented the fact that the majority had imposed
on schools potentially crushing financial liability for student conduct
that cannot be identified either by schools or courts with any precision.
The law recognizes that children, particularly young children, are not
fully accountable for their actions because they lack the capacity to exercise
mature judgment. It should surprise no one, then, that the schools that
are the primary locus of most children’s social development are rife
with inappropriate behavior by children who are just learning to interact
with their peers. The dissent embraced the amici brief’s language from
the NSBA that “the real world of school discipline is a rough and tumble
place where students practice newly-learned vulgarities, erupt with anger,
tease and embarrass each other, share offensive notes, flirt, push and shove
in the halls, grab and offend.” No one contests that the dizzying array
of immature or uncontrollable behaviors by students is inappropriate, even
objectively offensive at times, and that parents and schools have a moral
and ethical responsibility to help students learn to interact with their
peers in an appropriate manner. It is equally as obvious that much of this
inappropriate behavior is directed towards members of the opposite sex.”
In the dissent’s view, to label this immature, childish behavior as
actionable, unlawful gender discrimination is a daunting and counterproductive
task.
The dissent further pondered what constitutes an actionable denial of
“equal access to education.” Is it when a girl who is tired of
being chased by the boys at recess refuses to go outside? If she cannot
concentrate during class because she is worried about the recess activities?
When she pretends to be sick one day so she can stay home from school?
The dissent chastised the majority for its inability to appreciate that
almost every child at some point has trouble in school because he or she
is being teased by his or her peers. The girl who wants to skip recess because
she is teased by the boys is no different than the overweight child who
skips gym class because the other children tease her about her size in the
locker room; or the child who risks flunking out because he refused to wear
glasses to avoid the taunts of “four eyes;” or the child who refuses
to go to school because the school bully calls him a “scaredy-cat”
at recess. Most children respond to teasing in ways that detract from their
ability to learn. The majority’s test for actionable harassment will,
as a result, sweep in all of the more innocuous conduct it acknowledges
as a ubiquitous part of school life.
The dissent went on to note the potential for schools to be overwhelmed
by the costs of defending against a new class of plaintiffs, and that the
prospect of Title IX liability will breed a climate of fear that encourages
school administrators to label even the most innocuous childish conduct
sexual harassment.
One student’s demand for a quick response to her harassment complaint
will conflict with the alleged harasser’s demand for due process. On
college campuses, and even in secondary schools, a student’s claim
that the school should remedy a sexually hostile environment will conflict
with the alleged harasser’s claim that his speech, even if offensive,
is protected by the First Amendment. In each of these cases, the school
faces the risk of suit—maybe even multiple suits—regardless of
its response.
And, in perhaps my favorite quote, after today, Johnny will find that
the routine problems of adolescents are to be resolved by invoking a federal
right to demand assignment to a desk two rows away.
Return to Table of Contents
School Districts
in the News
An Owasso, Oklahoma woman sued a school district over a grading practice
she says humiliated her children. The policy permits students to grade classmates’
papers. The mother’s claim is based upon the children’s humiliation
for receiving low grades. The lawsuit claims the practice violates the children’s
14th Amendment rights and the Family Educational Rights and Privacy Act
by disclosing private information.
A school district in northern New York is being accused of discrimination
after barring religious groups from using school auditoriums. The American
Center for Law and Justice has filed a lawsuit against the Watertown City
school district on behalf of Liberty Christian Center. The lawsuit was brought
after school district officials claimed a religious group’s request
to use school facilities for a concert violated school policy. The district
banned church groups from using its facilities after another group held
a concert on school grounds and included prayers and religious readings
during its event.
A lawsuit filed In federal court against Bedford School District says
a child disciplined for threatening behavior has psychiatric problems. Attorneys
for the 12-year-old boy accused of bringing a cap gun to school along with
plans to take over the building have blocked an expulsion hearing. One of
the boy’s attorneys said the lawsuit was meant to protect the youth’s
rights under federal education laws that require districts to continue providing
educational services to disabled children, even if not in the usual school
setting. School officials heard about the boy’s plan from other students.
School officials searched the student’s back pack and discovered the
cap gun and a folder that contained a magazine and notes outlining the plan
to take over the school, the lawsuit said. The cap gun was not capable of
shooting projectiles, the lawsuit said.
The school district that runs Woodland High School in Marble Hill, Missouri
suspended a student because of information on his off-campus World Wide
Web page. The district gave the student a 10-day suspension for a web-page
he created outside of school. The student had not used a school computer,
nor was the web page hosted on a school computer. The page lambasted the
school and used profanity to describe the principal. The American Civil
Liberties Union has decided to sue the school district on the student’s
behalf.
Four books with themes dealing with homosexuality were wrongly removed
from the shelves of the Barron High School, Wisconsin, library and should
be returned, according to a federal lawsuit.
“This is unconstitutional censorship of the most damaging kind,”
according to the executive director of the American Civil Liberties Union
of Wisconsin. The ACLU helped prepare the lawsuit that listed three juvenile
students and their parents and three 18-year-old students in the Barron
School District as plaintiffs. According to the school district’s attorney,
the school legally removed the books because they contained “pervasive
vulgarity and obsessive obscenities.” The controversy started when
a parent filed complaints about four books—“When Someone You Know
is Gay,” “The Drowning of Stephan Jones,” “Baby B-Bop,”
and “Two Teenagers in Twenty”—and the “vulgarity”
used in them. The lawsuit alleges the school removed the books because they
did not agree with the moral and religious beliefs of school officials who
disapproved of the books’ homosexual content. A parent and one of the
plaintiffs in the lawsuit, said the books were not pervasively vulgar. “Sure,
some of the material may be controversial, but if they don’t have access
to that, how will they be prepared when they leave here and get out into
a more diverse world? You can’t shelter kids from everything. I’ve
read almost all the books in question and I think they are informative and
could help students who may be struggling with questions of sexuality,”
she said. The ACLU said thedispute centers on whether the school violated
students’ rights to read as established by the First Amendment and
whether or not the school is discriminating against gay and lesbian students.
Return to Table of Contents
Firm News
We are pleased to announce that Todd A. Osbron,
Lucy B. Bednarek, Adam B.
Simon and Daniel S. Wellner have become associated
with the firm.
In June, Sharon Eiseman was installed as President
of the Women’s Bar Association of Illinois.
Tom DiCianni and Robert K. Bush spoke on Violence in Our Schools at the 1999 Summit-Apex Lawyers
Advisory Conference on July 29, 1999 in Charlottesville, Virginia. Rob gave
a presentation June 15 on the State Gift Ban Act to the South Suburban Park
& Recreation Professional Association in Frankfort, Ill. and an update
on tort law at the Illinois Association of School Board Officials conference
in Peoria on April 22, 1999.
Tim Guare spoke on Fair Labor Standards Act
issues at the IIT Chicago Kent Public Employment Law Seminar on November
5. Tim will also be speaking before the Illinois Community Colleges Association
Annual Conference in Decatur, on November 18. Tim also was a presenter at
the Illinois Public Employer Labor Relations Association Annual Conference
in Galena on October 25, where he discussed the Abuse of Sick Leave and
Other Entitlement Benefits.
On November 20, Bill Kling will speak on “Educating
Children in Predominantly Minority Communities” with of the Prairie
Hills School District Board President and Superintendent at the IASB-IASA-IASBO
Joint Conference in Chicago. He has also conducted administrative in-service
programs for several of the firm’s clients, and presented at the 4th
Municipal District Clerk’s seminar on a school’s response to family
violence in October Bill spoke November 5 on “Workplace Violence and
Public Education” at the 15th Annual Public Sector Labor Relations
Program in Chicago. On November 1, Bill provided a legal update at the Illinois
Council of Community College Administrators Annual Conference in Decatur.
On September 8, Keri-Lyn Krafthefer participated
in a Chicago Bar Association seminar on how to get on an election ballot.
On July 10, Keri-Lyn spoke at the seminar for the Township Clerks of Illinois
in Galesburg and recently completed three chapters for the organization’s
handbook. She also provided a legal analysis of Mayor Daley’s litigation
against the handgun industry for the BBC radio program “Crossing Continents.”
Darcy Proctor has been appointed to serve on
the WBAI’s Board of Directors for 1999-2000. Darcy was also appointed
a member of the ISBA’s Tort Law Section Council and is a co-chair of
the WBAI’s Public Office Committee. On September 14, 1999, Darcy moderated
a forum co-sponsored by the WBAI and the Chicago Council of Lawyers addressing
the issue of merit selection versus election of judges.
Sharon Eiseman recently completed a portion
of the update for the “County Government Law—A Reference Guide,”
published by the Taxpayers Federation of Illinois. The revision project
was undertaken by the ISBA Local Government Law Section Council. Sharon
has been appointed by the ISBA to several committees, including the Legislative
Committee; the Committee on Bar Leadership; and the Women and the Law Committee.
Education Law Report is published periodically by Ancel,
Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., as a service to our public
education clients and friends. It is intended to provide timely information
of interest, but it is not a substitute for legal advice. Be sure to consult
with an attorney before taking action based on the contents. We welcome
comments and questions. Permission to reproduce is granted provided credit
is given to Ancel, Glink, Diamond, Bush, DiCianni & Krafthefer Education
Law Report.
Contributors: Timothy E. Guare, William
C. Kling, Sharon L. Eiseman, Lucy B. Bednarek
Editors: Timothy E. Guare and William
C. Kling; Design: Douglas M. Doty
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