New Hampshire's highest court threw out a challenge to tax credits for businesses that contribute to organizations offering tuition scholarships at private schools.
The University of Arizona has become the first college in the nation to offer a BA in law. A Findlaw article about the program, which still requires the student to attend law school if they want to be a lawyer,...
The National Institute of Collective Bargaining has issued a call for papers. Abstracts are due Oct. 17, 2014 and the conference is set for April 19-21, 2015 in NYC at CUNY. The theme is thinking about tomorrow: collective bargaining and...
The BLS just published a report researchers may find of interest and very useful. As the report states: This report describes the labor force characteristics and earnings patterns among the largest race and ethnicity groups living in the United States—Whites,...
Yahoo Finance posted an interesting article about the best paying jobs of 2014. They report on a survey done by the job portal Careercast.com which utilized data from the BLS. Below is a useful chart published by Yahoo:
The information on this site does not constitute legal advice and is for educational purposes only. If you have a dispute or legal problem, please consult an attorney licensed to practice law in your state. Additionally, the information and views presented on this blog are solely the responsibility of Justin Bathon personally, or the other contributors, personally, and do not represent the views of the University of Kentucky or the institutional employer of any of the contributing editors.
This happened last year and I somehow missed it: teacher permits "cone of shame" on students -- which is essentially a dog collar with a cone attached when the students misbehaved. Brought to my attention again by @sjciske.
Apparently, she was just transferred and not fired. Being a science teacher saved her.
By the way, I'm not sure what is happening in Pasco County, FL, but they certainly seem to make the education law news a lot.
It is a real shame we have to talk about these kinds of things. I hate it. And, I hate when my students ask me about this topic very early in our courses together. There is clearly a lot of concern in the teaching force about protecting themselves against students.
This is an issue we don't really talk about in the textbooks ... but perhaps it is time that we need to address it more formally. I hate giving into this as the modus operandi, but it seems we have little choice.
A couple weeks ago I presented virtually at EduCon 2.2 in Philadelphia (although I was in snowy Lexington). Jon Becker created the session called Stump the Lawyers.
Anyway, they stumped us (sort of, I sheepishly admit, although certainly we being lawyers we had something to say, even if it didn't relate).
The question is what are the legal ramifications of this scenario (here is how Jeremy Brueck wrote it in his notes):
A teacher wants to do an activity with her 5th graders. The activity requires the use of online software, which either runs online or is a download. To access the program, the user has to agree to a "terms of use" agreement. Like many of these, it contains an age provision (typically 13) (here is a typical example: Blogger). The teacher proceeds anyway to (1) either create an account for the students or (2) encourages the students to check the "I agree to the terms of service" button anyway - or other variations on that same theme. Anyway, the point is that a 12 year old or younger student is using a website with a terms of service agreement that requires them to be 13 or older. Something bad then happens; either (1) the students violate the terms of service or (2) some type of injury occurs (think sexting) and the parents sue everyone.
I had written up a long list of possible ramifications (and spent more than an hour doing so), but the legal components of each of these are so hazy that I think I would be doing everyone a disservice by making guesses without more research - so I pasted it in a Google Doc that I'll try to work up into some kind of article if I ever get time.
First, this gets into some very complicated areas of contract law, of which I am very much a novice. There are issues of infancy, misrepresentation (both intentional and negligent), coercion, and others. Depending on how it fell out, there could be 10 or more claims just on this contract issue. So, let's not go there. I will make the point that students have been held to clickwrap agreements (my concerns with that case) and that I don't think there would be much difference for teachers who have misrepresented. So, let's not go there for now. Also, I think there are possible issues of identity theft/fraud, Acceptable Use Agreement issues, and possibly others.
More to the point is the issue of what happens to the school and/or the teacher. Who can possibly sue each and what might happen? Both the school and the teacher are likely to be sued both by the software company and by the parents if there is that type of injury. In fact, there might even be a case of the school suing the teacher. Depending on what exactly happened, fraud might be involved which is clearly outside the scope of a teacher's employment and thus not covered by immunity statutes. So, personal liability for the teacher here is not out of the question. Also, the school is probably going to be open to liability for the acts of its teacher (of which they might try to recover against the teacher later). I don't see the likelihood of big damages awards here, but one can always be surprised. Also, I think the most likely scenario is that the contract is voidable by the software company, meaning that they will mostly likely just lock you out in the future. So, I don't see a ton of legal risk here, although clearly the law is against the school and teacher.
So, bottom line here is that the teacher is likely to be fired and the school is likely to settle if, in the unlikely event, someone actually has suffered a substantial injury.
What does this mean for teachers out there wanting to use these online tools? ... Are you feeling lucky?
Yeah, probably not going to get caught. Even if you do, there is probably not going to be much in the way of damages. So, it's like running to stoplight at 2 in the morning. Know that it is wrong; know that you might get caught and lose your job; then, make your decision.
Justin Bathonon Saturday, September 26, 2009 at 10:19AM
Here is a story that I sort of like out of Chicago. A parent of a boy that was profiled as a gay racist on facebook is suing the four creating students on various tort claims including intentional infliction of emotional distress and defamation (follow the link for the lawsuit).
This kind of suit is perfectly reasonable to me and I like that the school is not legally involved. Yes, this also could be construed as bullying, but bullying is very difficult to prove against the school. The school has the deep pockets in these scenarios, so I get the attraction, but the best legal suit frequently is the private tort action between the offending party and the injured party.
Check this one out and decide for yourself. A principal in South Carolina has taken to "whippen" kids to restore order in the school -- and it has worked to the benefit of his school achievement scores.
You can decide for yourself on this one, but it really depends on the definition of success, doesn't it. A scared school doesn't necessarily strike me as a successful school, no matter what the test scores say. We have made a lot of progress over the past few decades in phasing out corporeal punishment and I would really hate to see young principals start picking it back up because they feel like they have no other options to get test scores up.
This is a pretty bad one - I have not seen this before (I have a son who is potty training now, so I hope our daycare doesn't send something similar home to us).
But, the lesson here is that you can't just do nothing altogether. The school sent an e-mail a couple days later and then did nothing else. When parents, or anyone for that matter, don't get any responses to inquires, at some point they all start to think of the media as the next place to turn. I know that lawyers have a tenancy to tell clients to do nothing and say nothing (in the hopes problems will go away), but this is sometimes the effect of that strategy. An incident that may have been handled on a personal level with reprimanding the teacher now is a national news story.
H/T Scott M. - who I am just going to start calling my researcher.
I have always been against the "safe room" concept that is becoming more and more popular in schools ... because this is where that concept inevitably leads:
Well, I guess now is as good a time as any to make my dislike for school-employed coaches public. If you have had me in class, you are already aware of my feelings in this regard.
My university just fired our basketball coach, Billy Gillespie, perhaps you've heard. So, I went to a few games this year and I watch them on TV when I can and I understand that our basketball team is probably all the general public knows about the University of Kentucky. But, we spend a lot of money on it. They make a lot of money, but we also just throw money around somewhat recklessly. For instance, we are going to pay our coach six million just to fire him (although the university is going to spend a lot of legal dollars trying to pay less). The point is that sports are overshadowing academics at the University of Kentucky - and since I am on the academic side, I am not particularly fond of that.
But, it is not just the attention and money that shifts away from academics, sports are probably the most legally risky thing that schools do. Kids die ... quite frequently, actually. And when that happens, lawsuits ensue. Here is another one just from today, just in my local paper. Of course here in Kentucky earlier this year we had the case of Max Gilpin, which gained national attention when a student died playing football - and he wasn't the first to die in that district. The Gilpin case was the first, though, where the coach was charged with reckless homicide. I could cite lots of other examples too and that is not even accounting for all the sports injuries, which happen pretty much constantly.
Now, the counter argument is that the benefits of physical activity far outweigh the potential risk of injury or death. The problem is that coaches don't coach to make kids healthy ... they coach to win - frequently at all costs. When kids play they will get hurt, but the risk of getting injured or killed when they are exhausted or pushed to their limits increase substantially. Why is it that schools have to take on that risk? Why not cities? Why not private companies, like in professional sports?
From a legal perspective, employing coaches is just not a great idea. I understand that tradition dictates we do it and there are community benefits by rooting for the home team, but school administrators need to be very, very careful with their coaches and not get too enthralled with winning. Let's not take our eye off the ball, to use a sports analogy, by putting winning before our student's health.
Justin Bathonon Wednesday, January 14, 2009 at 1:09PM
Alright, this is absolutely one of my least favorite topics to write about, but since it has been grabbing a lot of headlines lately, I figure we might as well get it over with. This is sort of like plane crashes. It happens only infrequently, but when it does it is guaranteed to grab national headlines. There is far more fear out there of sex-crazed teachers than there needs to be (this affects (reported cases) less than .01 percent of teachers per year). It also doesn't help that there is this national infatuation with this issue (for various nasty reasons I am not going to mention). But, let's deal with it anyway:
First, legally, there are a few different issues here and let's address each one briefly.
1. State Anti-Teacher Sex Laws: These state laws are becoming more and more popular and most states have adopted such a law or in some stage of the process of trying to get such a law. Obviously they vary in their provisions, but the general point is to prevent or prosecute teacher sexual abuse of students. Like the one in Washington they contain criminal penalties for teachers found guilty. As more and more states adopt these laws, local prosecutors will have another weapon with which to attack teachers that engage in sexual conduct with their students. --- As far as the Washington case, that is a clear example of the limits of these types of criminal laws. The law was written to protect "minors" - which does not include 18 years olds. Thus, that law cannot be used to prosecute that teacher. However, the teacher will lose his job, lose his license, and could be subject to civil actions (see below). And, since this case got so much attention, I would assume many states will either move that age up or just say students generally.
2. Statutory Rape Laws: These laws vary greatly across states, but generally criminalize sexual relationships with children in their teens, up to about age 16-18 (depending on the state). The recent trend has been to increase this age. While there are various loopholes and this is a complicated area of law, as a general rule teacher sexual abuse of students (other than perhaps seniors in high school as was the case in the news story above) will probably also amount to statutory rape, which has a lengthy prison sentence, among other punishments (including inclusion on the sex-offender list).
3. State Child Abuse Laws:Because we are talking minors and we are talking abuse, these laws kick in as well. Sexual abuse is a standard type of abuse defined in these statutes, so all the possible criminal ramifications contained under these laws can be brought to bear on the teacher. Here is a good national resource on Child Abuse, but check your state laws.
4. Teacher Dismissal Laws: Outside of state law violations for criminal conduct (above), there are also legal implications for a teacher keeping their job. Immorality is a teacher dismissal criteria in most states. With no exceptions, teachers can be fired for having sex with a student under these immorality state law provisions. A teacher that has sex with any student, even a student over 18, should immediately be fired, pending due process. The teacher should be placed on paid leave while the due process moves forward and as quickly as possible the Board of Education should issue a ruling firing the teacher.
5. State Teacher Certification Laws: A fifth legal issue related to teacher sex with students is state certification laws. Not only will teachers be fired 100% of the time for having sex with a student, but more often than not they will also lose their teaching license as well. An October 2008 report found that between 2001 and 2005, 2,570 teachers lost teaching credentials for sexual misconduct. Again this process involves due process and the teacher has a right to defend themselves to the state teacher certification board, but with adequate evidence teachers will almost always have their licenses revoked.
6. Various Tort Actions: All of the above address government punishment of teachers, but individual students can also sue teachers under various theories for assault, intentional infliction of emotional distress and others and recover substantial monetary damages against the teacher.
7. Child Abuse and Harassment Actions Against School or Other Employees: When teachers sexually abuse students, there is frequently more than just the offending teacher involved legally. Abused students have a private right of action to bring suits against schools if there were aware of the harassment and did nothing to stop it. Also, because this may amount to child abuse, the mandatory reporter laws kick in and other teachers that failed to report could face fines or prison time (and possible revocation of their teaching license as well).
Those are the big legal issues at play and, depending on the case, there might be others as well. But, you can see these are pretty complicated legal cases, but they always end with the teacher losing their job, probably losing their license, and probably going to jail for a while under various laws.
Second, ethically this is a no-brainer, obviously. Teachers, don't have sex with students. Don't even think about having sex with students. Don't even have flirtatious relationships with students. I feel like I don't even need to say that. Also, obviously, administrators and other teachers need to report this when they even have a hint that it is going on. Just like any other child abuse reporting, that is both their duty under the law and their moral obligation to protect students that may not be able to protect themselves.
But, with that out of the way, there are a lot of other less obvious ethical issues here. What is the ethics in pre-service teacher preparation not making future teachers aware of these legal ramifications of their actions? What's the ethical responsibility of state legislators, regulators, district personnel, school leaders and others? As part of their law, South Carolina instituted a sex-abuse prevention training program. Maybe that's worth looking into? And all those ethical questions need to be couched by remembering we are talking about an extremely small fraction of the teaching population that ever has problems on this issue.
Anyway, knowing the legal issues surrounding teacher sexual-abuse is a good place to start, if nothing else.
Justin Bathonon Tuesday, November 18, 2008 at 9:38AM
The trial of Lori Drew for Cyberbullying starts today. This case has got a lot of attention nationally, so it bears watching.
Here is the quick and dirty: An older woman and associates created a fake MySpace account in which they portray a young man. The young man then woos Megan Meier and after a relationship is established the fictitious boy then proceeds to shun her including a message stating the world would be better off without Megan. Megan, already having some emotional problems, hangs herself in her bedroom.
The authorities, struggling to find something with which to charge Drew, the instigator, finally settle on charging her with violating the Computer Fraud and Abuse Act - which was meant as a law against computer hackers. The charge rests on the theory that Drew knowingly falsified a MySpace account in violation of MySpace's terms of use agreement. There has been a lot of attention and criticism of this novel use of that law. Additionally, the Intentional Infliction of Emotional Distress tort is at issue here as it must be proved to constitute a violation of the laws of a state, a necessary requirement under the Computer Fraud and Abuse Act charge.
According to news reports, the Judge, out of LA because that is where the MySpace servers were, has come close to dimissing the case several times but finally decided to let the case go to trial. Now that it is at trial, and the suicide is included in the evidence, I wouldn't be surprised to see the jury convict Drew of something, even if it is a lesser misdemeanor.
Needless to say, whatever the outcome here this case will probably be appealed. But, in the meantime, watch for the ruling of this case to come down in the next week or so because either way it will set some pretty important cyberbullying precedent. I may even try to get a cyberbullying expert to blog on the case here.
The State Board of Education in Utah will likely ban school bus drivers from using cell phones while on the job at their next meeting. This is part of the fallout from the California train wreck where the driver missed a signal because he was texting. Look for this regulation in a state near you soon if it hasn't already been passed. This is sort of a no-brainer and many local companies and districts already have this policy, but it is an easy way for the state board of education to look good.
The administrator retirement caps issue in New Jersey hits formal hearings. If I were school administrators, I would watch this closely as this could be a "coming soon to a state near you" kind of issue.
Some pushback on attendance, special education and NCLB passage rates. This was a nice story and it was on page A1 of the Washington Post ... Kudos, folks.
A 45 year school desegregation case in Macon, GA finally comes to a close. They won't know what to do without it.
Mark Walsh has his story on the AEI/Fordham legal history of education forum. It sounds really cool and I wish I could have gone. They said they would put the video up, but I have not seen it yet. If I do, I will post it.
The Connecticut Ed. Law Blog has a good point that the ADA amendments may require changes to 504 forms as well.
Stanley Fish, Sherman Dorn, Andrew Rotherham, & Joanne Jacobs weigh in on the NY political speech controversy. If that case was all about making a widely distributed political statement ... mission accomplished. For your Friday Fun: Last weekend I made applebutter (and like I said last week, I burned my hand). Anyway lots of people in my office this week wanted to know about how you made it, so here is a good video from Southern Illinois about our traditions and how we made it (we cooked ours in the kettle but started with whole apples instead of boiling down the day before). We made 150 quarts of applebutter last weekend and only I was injured ... so that's pretty good.
This Mt. Vernon, Ohio teacher religion case just gets worse and worse. It has gotten so bad I am extremely surprised the lawyers for the school district even let this get to trial. If I were the school's lawyer in this case, I would settle no matter the price. I have blogged about this case before, and in that post you can hear the teacher try and defend himself (unsuccessfully). Anyway, now that testimony has begun the focus has shifted to the administration (the ones with the deep pockets). Here is what the superintendent had to say on the stand:
Mount Vernon's school superintendent testified today that he didn't think burn marks that 8th
grade science teacher John Freshwater is accused of placing on a student's arm were abuse that
needed to be reported to child protection authorities. ...
When R. Kelly Hamilton asked Short if he thought Freshwater was capable of abusing a child or
mixing religion in his classroom, Short replied: "It's not his character to abuse a student. But it
is part of his character to promote his religion."
The parents of Zach Dennis, 14, have sued the school district and Freshwater, saying that
Freshwater used a laboratory device that puts out 50,000 volts of static electricity to burn a
cross on Zach's arm in December.
"I do not believe he meant to hurt the student," Short testified yesterday, "but I do believe it
was a cross."
And whether Freshwater meant to hurt Zach or not, Short said of pictures of the marks, "it looks
like an injury to me."
Short also testified today that at least three other teachers had used the device on students.
He did not say whether any of those students were injured. One teacher told him that she made a
"quick motion" with the device on a student's arm, Short said.
This superintendent must not like his job or his school all that much because he clearly wants to be fired and is going to cost his district a TON of money because I don't know how you win a case after testimony like that. Essentially, here is what he is saying ... "yes, I knew he and other teachers burned students with electricity ... no, I didn't do anything about it. If that's not bad enough I also knew that he was proselytizing in the classroom and I did nothing about that either."
Fired. End of story. I wouldn't even let him come into the office tomorrow.
Here is what you got going on. A teacher burning crosses into student's skin and openly proselytizing on the job. Other teachers also using this electric device to burn students. A principal that seems scared to do anything about it and a superintendent turning a blind eye. ... Just fire them all, revoke their licenses and start over. And, while we are at it, I would think about firing the school district lawyer as well.
This is a great example of what can happen when people don't speak up about the injustices they witness ... kids get hurt while the Constitution lays in shreds on the floor.
The lead content in artificial turf fields (present at some schools) may be too high.
Pennsylvania has become ground zero in the fight over evolution. The latest salvo: Philadelphia academic institutions are now holding a Year of Evolution to celebrate Charles Darwin's 200th birthday.
The Arizona Republic, perhaps trying to do Mr. McCain a favor (since he doesn't really have an education policy at all), does a bit of a Q and A on what each candidate would mean for education.
Around the blogosphere:
Mark Walsh has the Supreme's decision to limit the death penalty in child rape cases and how it tangentially relates to schools.
And for your Friday Fun: Virgin Galactic. In a couple years, they are going to be making regular trips to space. For only $200,000 you can book your flight now. Assuming that none of you will be booking your flight, you can at least enjoy the photos as construction seems to be progressing nicely.
It is something of a quandary for educational law instructors ... this duct taping of students to chairs.
Most of us teach intentional torts to our students and the easiest example of false imprisonment is always this example. So, when these stories come along we have a tendency to notice them. Scott McLeod noticed this one today, and sent over the link (video). And just like every other one of these stories it involves a student, a chair, and duct tape. Unbelievable.
Here is the thing about torts, especially intentional torts, you don't have to be told these actions are wrong. You don't have to be told that it is a bad idea to hit a kid or to make fun of kid ... or to tape a kid to a chair. We all know it is wrong and all the educational law instructor's job is to give you that legal affirmation and some fancy new words like Intentional Infliction of Emotional Distress.
So, every time I teach false imprisonment to my students and I use this taping students to a chair example, the whole class sort of giggles. They can't reasonably believe that a teacher would do that to a student, and I can't blame them. It is crazy, right? And yet, these stories continue to emerge! In the year 2008, what in the hell would possess a teacher to do this? Are we going to have to pass a law banning duct tape within 100 yards of school buildings?
Kevin Carey at The Quick and the Ed. makes a great point which I agree with: Technically, the Department of Ed. is breaking the law with the new 10 state pilot program. But, lucky for them, no one complains.
Alexander Russo, who was also at AERA, makes the point that the media are just not digesting education research and rightly says that both sides, the journalists and the researchers, need to do better and that blogs can play an important role in the improvement of this relationship. (Perhaps I will try to integrate more summaries of ed. law scholarly research into the blog in the future).
ABC News has a story (video) saying the more sex ed ... the fewer teen pregnancies.
Also ABC has a look back (video) at news reports on school busing limitations during the Nixon Administration. (we have come so far in some ways ... and in others are still fighting the same battles).
And, finally, you can't hit on the highlights of this week without mentioning Barack Obama's speech, A More Perfect Union (video, check out the number of hits!), which talked a good deal about education and race and inequality. I don't mind saying that I was highly impressed with this speech. It is nice to talk about it again ... in public ... without blame ... without fear ... without barriers. It was one of those things that when you watch it and you know the context ... you can just feel America changing. We are going to talk about race differently after this week, which is nice.
And a posting linking to several school law resources (basically NSBA and a couple primary source links -- god the online educational law infrastructure is horrid -- look for an upcoming report on this from myself and a colleague).
And, for your weekly time waster ... I give you Google Sky - The Universe on your Laptop (its pretty cool, but um, well, it might just be too big for even Google).
That is, if you are not already consumed with watching the NCAA tournament on your computer, as Jonathan Becker is.
Justin Bathonon Saturday, February 9, 2008 at 6:43PM
Well, it continues to happen. When I teach intentional torts and false imprisonment to my students I can see them sitting there thinking ... who would ever do anything like that to a kid? And I tell them, you know, it happens all the time (unfortunately). Well, a rookie teacher in Chicago taped a special education student to a chair using masking tape -- and was fired, of course.
I can't help but think this is exactly the type of incident that could have been prevented had the rookie teacher had educational law in her pre-service preparation program. Clearly, any teacher should know that it is wrong to tape a kid to a chair. But, teachers that have taken educational law know why it is wrong and know how they are liable. There is less debate in their mind concerning the legality of their actions. I understand that pre-service teachers need lots of classes to get ready to enter the classrooms, but seems like a class that clearly informs teachers of what is legally right and what is legally wrong and why, would be a good idea. There is a reason we have laws against these things, but we are just assuming that teachers will miraculously know this on their own. Why are we doing that? We could make a lot of little things like this go away. Not all of it, but a good deal of it. I am tired of reading about this stuff in the papers.
Over the next few weeks, I will be posting some of my student work. We (the teachers of A308/E310 at Indiana University) had an assignment that asked students to combine their knowledge of educational law with some Web 2.0 tools. The results were very impressive. I will be posting some of them both as a reward for working hard on the project and to show others what is possible when you let the reins loose a little on student creativity.
Here is the first one. Completed by Carlton and Luke: (Listen to the words).
Justin Bathon on 
Compared to mine, Jim keeps a pretty clean desk. 
