The 9th Circuit Rehearing Redding v. Stafford (13 Year Old Strip Search Case): Congrats Savana

I was sort of happy to see Mark Walsh's scoop at the School Law Blog that the 9th Circuit has decided to rehear the Redding v. Stafford decision en banc (as a full court - or at least more - instead of just 3 judges, essentially setting aside the 3 judge's decision). The Edjurist sort of has a personal interest in this case. I disagreed with the 3 judge panel's decision initially when they ruled that strip searching the 13 year old Redding was constitutional (read the facts here). Later, Sarah Redding herself (the student that was searched) posted a comment on the blog post thanking me and directed us to her compelling editorial in the Eastern Arizona Courier.

At the time I had this to say about the case:

How can a strip search of a 13 year old be considered reasonable in
scope when searching for Ibuprofen? Sure, having and passing out
prescription drugs is wrong and the search of the backpack was fine.
But was it necessary to strip search her? How about searching her
locker first or calling her parent ... or calling the cops? Any of
these methods would have been more reasonable in scope and likely more
productive in obtaining any illegal drugs and/or reprimanding the
offending student. I personally feel this is clearly outside the bounds
of the Constitution and even further outside the bounds of common sense.

Well, congratulations Savana. It is not a win yet, but I think their decision to rehear the case bodes well for you. If nothing else, it shows the delicacy of this issue of strip searching young students. It should only be used, if at all, as a last resort and only in the most dire of circumstances (weapons, perhaps). Ibuprofen, the equivalent of 2 over the counter Advils, hardly qualifies as a dire circumstance to stretch the bounds of the Constitution this far.

Kiss and Expel

My South Carolina readers will love this one. Two students were expelled for kissing (or allegedly perhaps more) on a school bus in Columbia, SC. We don't have all the facts so it is hard to form an opinion on this one, but if it was just kissing ... it does sound a bit severe for what appears to be otherwise stand-up students.

Any readers in the district or around there care to share the latest rumors (and/or facts) floating around this one?

UPDATE: According to the ABA Journal, the parents of the expelled students are going to challenge the school board's decision in Court. So, we should be hearing more from this case.

Bong Hits Sketch

Here is another video from AfterEd. I thought some of you educational law professors out there would be interested in this one. I think I may use it this semester when teaching about student expression rights to my pre-service teachers. Of course, ironically, because the video has references to drug use, I don't suggest showing this video in K-12 schools based on the ruling from this case.

Here is the LooseLeaf Report (check it out there are some other ones that might interest you too) on Bong Hits for Jesus (Morse v. Frederick) and it gives a little analysis of the future of this Supreme Court. Fun Stuff.

Ohio the Next to Ban Corporal Punishment?

A bill in the Ohio General Assembly would do just that. The bill has bi-partisan sponsors and may have a good shot at passage. If it is passed, it would make Ohio the 30th state to ban corporal punishment and would be the first new law on this issue since Pennsylvania banned it in 2005. As the map below shows (thanks to the Center for Effective Discipline), a clear majority of states are now on the side of making corporal punishment illegal in schools. Perhaps this bill will cause some other states (ahem, Indiana, Florida, Colorado I am talking to you) to also consider legislation banning corporal punishment. I can't tell you how appalled my pre-service teachers are here in Indiana when I tell them spanking children is legal in this state. The momentum of the 1980's for this prohibition has long since passed, but in the 20 subsequent years many of the older teachers that were fond of this practice have retired. For the current generation of teachers corporal punishment is an embarrassment to the teaching profession. It is time the legislation reflected the morals of the majority of teachers.

Crossposted: At the Schoolhouse Gate

Things You Didn't Know About the Pledge

Here is a short video showing you 10 things you didn't know about the Pledge of Allegiance. It has some cool facts in it and of course refers to Newdow. I also want to use this opportunity to point out AfterEd, which is a channel on education broadcast out of Teacher's College, Columbia University (anyone want to know why they are the top ranked school of ed in the U.S. - it's because they do innovative stuff like this). It is a great Web 2.0 idea and they also welcome user generated content. Kudos there to everyone working on this project and perhaps I will submit some legal content in the future (wouldn't it be cool to have a monthly educational law chat with leaders in the field and policymakers?).

Anyway, enjoy this video on 10 things you didn't know about the Pledge. I certainly did:

Testing for Steroids in High School Athletes

Texas has finally decided to invest 6 million dollars into steroid testing for high school athletes. News of the testing policy has been circling since ...  Also, in the last month, the Illinois High School Association has voted to start testing student athletes for steroids.   Estimates put the number of high school athlete steroid users at 2 percent.

The short
history of steroid testing in public schools has yielded little, if
anything. In the handful of local school districts that already test
for steroids, no positive test has been reported. The same is true for
limited state programs in Florida and New Jersey.

"It's
like looking for a needle in a haystack," said Lloyd Johnston, a noted
researcher at the University of Michigan. "My guess is that the payoff
relative to the cost won't be high."

Some critics also
question the state's policy decision to go after steroids when the use
of other illegal drugs, including marijuana, heroin and prescription
drugs, is far more common among teenagers. The state's steroid tests
will cost up to $140 each, compared with $15 for most other drug tests.

But state lawmakers who championed the drive to test up to
50,000 athletes over the next two years say catching users wasn't their
main goal. They hope the state's investment pays off as a powerful
deterrent.

"The momentum is there," said state Sen. Kyle
Janek, R-Houston, Senate sponsor of the steroids bill that passed last
year. "With all the attention to the professional athletes and steroids
use, it's out there for everyone to see. It won't be tolerated." Continue Reading...

So, the point of the testing does not seem to be actually catching students, but rather sending a message. Seems to me to be a pretty expensive message. Steroids have been a hot, hot topic lately and it seems everyone wants to "send a message." For the second time, Congress has decided that it must investigate professional sports and steroids. Now, the Texas Legislature

Evaluating Teachers by Test Scores

Its coming. Like it or not.

The Congo: The Saddest Story on the Planet that No One Knows About

It is not very often that I allow myself to get off topic on this blog, but I am going to make an exception today.

5.4 million.

5,400,000. That is the number of people that have died as a result of conflict in the Congo in the last decade. Averaged out, that is 45,000 people a month or roughly 1,500 people a day. One thousand, five hundred people a day...dead. Unnecessarily.

"Congo's loss is equivalent to the entire population of Denmark or the
state of Colorado perishing within a decade," George Rupp, president of
the aid group, said in a statement.

Staggering. Staggering. If you have 11 min., take the time to watch this video about the plight of the Congo and why so many unnecessary deaths are occurring.

I have a personal interest in the plight of the Congo. When I was younger I lived with Jose Kabeya, a Congolese Refugee, in Colorado (I would tell you his amazing story, but I can not put it on the Internet for fear of possible retribution against him). We became quick friends and I had the honor of being in his wedding. He and I (with most of the credit going to him) had the audacity to think we could do something about it. We were young and naive and bold ... and sat down over pizza one night and came up with a plan and a name, the Morning Star Center for Social Progress. Well, since that night in 2004, we have had over 30 students graduate from our technical school with certificates in information technology and computers (with another class on the way - we have actually already doubled our initial operations in this area), we have shipped medical supplies to local doctors with the help of Project Cure, and we have started construction on an elementary school and have formal approval from the government to begin offering classes in September of this year. We (well, mostly Jose) have also built two teams of members, one that runs the U.S. operations and one that runs operations in Kinshasa, DRC. Not everything has been roses and we are constantly operating on a shoe-sting budget (please donate or become a partner if you are interested), but we are trying and I think that counts for something.

The plight of the Congo, and Africa generally, is largely overlooked, or worse, intentionally ignored. The U.S. is spending 5 billion per month on military activities in Iraq and Afganistan. That is roughly equal to the entire yearly Gross Domestic Product of the D.R. Congo (for comparison, our GDP is 13 trillion). In other words, a little could go a long way in the Congo. I have seen this personally. The total amount our organization has raised would be about enough to get you a moderately used car in the States. Yet, with that relatively small amount, we have managed to affect hundreds of lives in a positive way. The people there are hungry for change. Much of the construction on our elementary school has been volunteer work. We have volunteers working in our technical school as well. People there just want to see things improve. So, keep the Congo, and Africa in general, in your mind from time to time. If you can find little ways to help, I encourage you to do so. To help the Congo and Africa, it is going to take the efforts of ordinary people around the world. The problem is almost bigger than political leaders, which is perhaps why they don't touch it. It is going to take small efforts by everyone and effort number one is recognizing the severity of the problem.

Okay, thanks for indulging me, back to regularly scheduled programming.

Tonight on Frontline: Growing Up Online

If you have time tonight, check out your local PBS station. Frontline is airing a special on Growing Up Online. It is going to deal with a lot of legal and technology issues that are challenging us these days and should be really interesting.

UPDATE: Here is a link to the entire program viewable online.

Here is a preview:

The Absence of Free Educational Law Resources Online

Spinning around the Educational Law Association e-mail listserv the past couple of days was a request by an educational professor for free resources she could use in an in-service professional development situation for teachers. She got several good responses, including this Alabama oriented educational law text, educational law blogs (thanks to Scott McLeod and CASTLE), the (members-only???) Educational Law Association Forum, links to non-educationally based legal resources, and a few other responses referring to textbooks (of the pay, non-online variety).

First, there are several helpful non-educationally oriented sites out there, such as Findlaw, the Legal Information Institute, Oyez, and on and on. And some education policy organizations have done their best, such as the Education Commission of the States Issues Database and the National School Board's Association School Law Pages. The problem is, there really are no websites dedicated solely to educational law resources. The best attempt ever made was done by Sarah Redfield, and her Edlaw Online Library. While I think it was an admirable and effective effort, it is difficult for one person to do it all. At this library, Sarah provided many educational law cases, but there really was no search option so you need to know what you are looking for before you use it and the statutes, articles, and other resources section of the page still had a lot of holes. (Please comment with links if you know of other resources).

In 2005-06, I did a quick study of educational law resource availability online and this is the report I wrote at that time.

Opening Educational Law's Cloister Door: An Infrastructure Inquiry of Educationally Related Legal Sources on the Internet. Link (.pdf). See my rating scale for educational law related websites below (on page 56 of the report for a larger version):

Anyway, all of this of course begs the question ... why not? Why are there so few legal resources online related to schools and education? Given the extremely significant number of people having a relationship with education (6.2 million teachers, 76.6 million students ... on any given day over 1/4 of the U.S. population are in schools) it seems a serious omission. Sure, there are limited resources available, but there is no place that attempts to aggregate those resources. This is something we need to work on in the coming years and hopefully something that the Educational Law Association or different educational law organizations can take the lead in so that there is not just a bunch of individual, uncoordinated efforts.

The worst part is that there are resources already available and much of the hard work is already being done. The problem is that we are just not thinking about making this already-existing work available in electronic, freely accessible ways. For instance, I write for the School Law Reporter which is a monthly benefit given to all dues paying members of the Education Law Association. The writers for the School Law Reporter are all educational law scholars that brief nearly all the educational law cases that are decided each month. At the end of the year, members are given a yearly index of all the cases that were briefed. What if that was in a freely accessible database that could be searched with outside links to the full text of the cases? Over time, the number of cases would build and there would a critical mass of educational law cases to drive usership. While the resource is currently seen as a benefit to encourage membership, imagine 1000 daily hits to the ELA homepage ... seems like that would encourage membership also (see this post about how ELA does not even show up on the first Google search page). Additionally, ELA could throw up an advertisement or two that could drive additional revenue which in turn could lower the cost of dues and again increase membership.

Increasingly, these free legal resources are going to be important. A friend of mine this semester is teaching an educational law course to pre-service educational leaders entirely online. The students cannot use Lexis-Nexis Academic in this type of course structure and she too asked me where she can find educational law resources online that she can have her students use to write papers. Of course, I helped point her to the few resources that are available and she committed to using those if nothing else, but she was still undecided whether she could have students write the research paper given the lack of available legal resources. This is a common problem - as indicated above with the in-service teacher training. Even I train my students on Lexis Nexis, but I know full well that they will probably never have access to that resource in their careers and they will probably never use it again. We have to be proactive in our approach to providing educational law resources online. We need to put the important cases online and we need to keep that case database updated, either in a wiki format or through an association. We need to provide links and access to school law statutes and regulations. To legal commentary (what about an electronic, peer-reviewed journal?) and news (blogs are making progress here). All of us educational lawyers are working to improve education through our research, writing and teaching. But, if the vast, vast majority of educational practitioners and students cannot access this scholarship, just how useful is it? I am not against people making a buck and there will always be a significant role for Lexis and Westlaw and Law Journals and there is a certain audience of educational law scholars and practitioners that are always going to be willing to pay for services that the general population will not. But, we need to get some educational law information into the hands of the general public and the easiest and best way to do that is by building the educational law infrastructure online.

Legacy Admissions & the Constitution

For the past week, in my undergraduate educational law course, we have been talking about desegregation and affirmative action. As such, we have been discussing Grutter v. Bollinger and Parents Involved v. Seattle.  These cases both concerned admission decisions based on race, at the higher ed. and K-12 levels, respectively. In our discussions, we have talked a lot about admission policies and all the different factors that can be considered when admitting a student to a university. One of those admission factors my colleagues and I always point out is legacy admissions. All of the students are somewhat sour on legacy admissions, as am I, so I thought I would point out this New York Times article (also this ABA Journal) on legacy admissions and a new, unique way of considering their unconstitutionality under the Nobility Clause of the Constitution.

LII: Constitution via kwout

A Question I Get All the Time: The New York "Supreme Court"

A question that always seems to come up is why are the New York lower courts called the "Supreme Court." This always confuses my students and when I was covering the NY State Courts for the School Law Reporter ... occasionally confused me. Well, Orin Kerr at the Volokh Conspiracy has the answer. Or at least his version of the answer as the comments also have a good deal of theories. Nevertheless, while I know it is a nice historical quirk, I would be fine if they changed their language to comport with the rest of the United States as I answer this question at least once a semester.

Drunk Photos and Facebook

Well, Facebook just continues to generate educational law news ... or in this case buzz. Andrew Paulson over at Board Buzz has an interesting account of students being disciplined and questions over photos of them on Facebook which showed them partying with alcohol. The incident even generated a walkout by some students at the school.

Andrew's questions in the BoardBuzz post are interesting, however, and worth an examination. Here is the quote:

"Is it the job of the administration to look at Facebook regularly and
be the Internet police for the students in their school? ... Or is it a matter of free speech since the photos were taken off
school property and parents should be aware of what their children are
posting on Facebook and they should handle discipling their children for underage drinking?"

First, the easy question ... free speech. Likely, in these cases of photos being posted on Facebook or other social networking sites, there will not be a First Amendment issue because the speech does not amount to an expression that has meaning (See, Jarman v. Williams, 753 F.2d 76 (1985)). Now, that is not to say that all Facebook posts do not amount to expression, certainly some can, but they must convey a clear meaning that is likely to be understood by a third party and it is hard to see how drunk photos do that.

Now, the harder question ... should school authorities consider it part of their job to search Facebook? First, the law considers Facebook (and the Internet in general) to be a public space (even if student's hold to the misconception that it is private) so the old rules of reasonable, individualized suspicion probably don't apply in a legal sense. So, can school authorities legally search Facebook? ... sure. Okay, with that out of the way, we can consider the "should" question. Should school administrators randomly be searching Facebook on their students? Here is the advice I have been giving when asked this question. Even though the traditional rules of reasonable, individualized suspicion probably don't apply to Internet and Facebook searches ... pretend that they do. What I absolutely don't want is a principal spending 4 hours a day randomly searching the net. While I promise that if they search in this manner they will find things to punish students for, they have far more important things to do like improving curriculum and evaluating teachers. But, if there is an individualized suspicion of a student that is reasonable, why not take 5 min. and see if that student has a Facebook page and run a few Google searches? If you find what you are looking for, go ahead and proceed with disciplinary action. If you find some other transgression in the process that you were not looking for, such as pictures of students drinking, well ... use your discretion - there is no rule saying you have to punish everything you see. The law gives principals discretion because we want them to use it. There are lots of bad things and lots of good things happening on the net, just as in classrooms. After a couple hundred years of education in this country we have determined that a reasonable, individualized suspicion standard is a good standard for searching in classrooms, so I don't see why it should be any different for the Internet. The Internet is becoming part of our schools, whether we like it or not. We can't just try to block everything all the time because students will always find ways around the boundaries we erect (again, this is no different than classrooms). We need to be honest with students and establish clear precedents regarding the school administration's relationship with the Web. I think a good standard that both school authorities and students can live with is a reasonable, individualized suspicion standard. Students should know the Internet and Facebook are not private places immune to searching by school authorities, but students should also know that school authorities are not "out to get them" and that they will only be searching the Net for information on their students if there is a reason to do so.     

Also see Mike Tully's recent entry at the Gate about the settlement of a facebook dispute in Ohio after the school overreacted and didn't use their discretion wisely.

Now here is a good idea: WiFi on Busses

Check out this cool idea ... WiFi on school busses. And not just WiFi, but also courses complete with online tests. Now, I know there is a lot that could go wrong with this just like with anything else, but I can't tell you how happy I would have been surfing the web or doing courses while on the bus (I was the first to be picked up and usually had a 60 min. bus ride). Nice idea and hopefully coming soon to a bus near you.

Politics and Teachers' Unions

The Nevada NEA is suing to block some caucus sites inside casinos and some speculate it is on behalf of the Sen. Hillary Clinton campaign for president. This lawsuit is aimed at stopping many in the gaming industry from voting in midday elections outside their home districts and comes on the heels of the Culinary Workers Union (Nevada's most powerful) endorsing Sen. Barack Obama for President.

I note this because just a couple of days ago the Salt Lake Tribune reported that the Utah Council of Educators
(Utah's non-union teacher association) is growing in strength. While the Utah Council of Educators has begun to engage in some lobbying efforts, I wonder if the type of activities some unions are engaging in, such as the Nevada NEA lawsuit, are not beginning to drive some teachers to seek alternatives to traditional unions. The Utah association probably gained members
during Utah's well publicized voucher fight where the Utah Education Association took a leading role in derailing legislative efforts
to install a voucher system. While according to their website the UEA
has 19,000 members and the UCE only has a few hundred, it is still an
interesting development that is not unique to Utah. According to the
Salk Lake Tribune article:

Utah is now one of more
than 20 states with such a nonunion education association. Though the
Utah council only has several hundred members, nationwide more than
300,000 teachers, school support staff and administrators are members
of such nonunion groups, said Heather Reams, associate director of the
Association of American Educators, which partners with many of the
groups, including the one in Utah.


In several states, including Georgia, Texas and Missouri, the
memberships of these nonunion groups, which often include all school
workers, have actually eclipsed memberships of those states' teachers
unions affiliated with the NEA.

While these independent, non-union teacher organizations are nothing new and have existed in many states for years, one has to wonder whether the NEA and its affiliates' interjection into these political fights is harming membership. I am especially concerned with this Nevada lawsuit. The union is not only backing a candidate, which it has every right to do, it is also now doing the candidate's dirty work. I am not quite sure that is what the dues paying members had in mind when they ponied up their $600+ for their union dues.

Pledge of Allegiance - State Requirements

I was asked the other day about the different state requirements to say the Pledge of Allegiance across the United States. This First Amendment Center article has the status of different states as of mid-2006 and it is the best advice I can pass along at the moment. If someone has something newer, please let me know.

Utah Council of Educators - Pseudo-Union?

An interesting group of teachers have formed in Utah, as the Salt Lake Tribune reports today. The Utah Council of Educators does not engage in collective bargaining, but is funded by member dues, making it more of a professional organization than a union. However, this association does engage in lobbying efforts and does provide educator liability insurance. The association probably gained members during Utah's well publicized voucher fight where the Utah Education Association took a leading role in derailing legislative efforts to install a voucher system. While according to their website the UEA has 19,000 members and the UCE only has a few hundred, it is still an interesting development that is not unique to Utah. According to the Salk Lake Tribune article:

   Utah is now one of more
than 20 states with such a nonunion education association. Though the
Utah council only has several hundred members, nationwide more than
300,000 teachers, school support staff and administrators are members
of such nonunion groups, said Heather Reams, associate director of the
Association of American Educators, which partners with many of the
groups, including the one in Utah.

    In several states, including Georgia, Texas and Missouri, the
memberships of these nonunion groups, which often include all school
workers, have actually eclipsed memberships of those states' teachers
unions affiliated with the NEA.

To a Midwesterner, where unions are still relatively strong, this movement to professional associations in lieu of teacher's unions is striking. It would make for a great legal-oriented dissertation to find out more about the structure and purpose of these relatively new groups.

Here are some links to some other non-union teacher groups:

New Pro-Evolution Report

Making news the past couple of days is a new report out from the National Academy of Sciences. The report questions creationism's continuing presence in discussions of science curriculum. It has some pretty strong things to say about creationism and intelligent design (including below) and no doubt will be used by advocates on both sides for many years to come. This issue just gets more interesting all the time.

41.png (PNG Image, 550x799 pixels) - Scaled (94%) via kwout

Happy Birthday NCLB! Your Present? A Big Legal Loss in Pontiac v. Spellings

Well, tomorrow is the birthday of NCLB. It is officially 6 years old and lots of folks have a something to say about it, as BoardBuzz notes (also, Alexander Russo, Cato).   President Bush, for his part, went to a Chicago elementary school to celebrate and there he issued a fact sheet touting NLCB's achievements and reiterating his proposals for reauthorization (audio of an NPR summary of potential changes). Sen. Kennedy also had something to say.

Well, almost as if it was fate, today there is word that the Pontiac v. Spellings lawsuit is back on after the Sixth Circuit court of appeals reversed a district court ruling finding for the Department of Education. The case concerns the "unfunded mandate" provision of NCLB which states, “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a). The eight school districts and National and State Educational Associations contend that this provision does not require compliance with NCLB if doing so would force the school to spend additional local or state dollars. Alternatively, the U.S. Department of Education argues that the Spending Clause of the U.S. Constitution requires schools to follow all of the law, regardless of complete federal dollars. It is no secret that Congress has not allocated all the dollars that were authorized for the law. Over the course of five years, the difference between the actual expenditure and the authorization has totaled over 30 billion dollars. Schools have had to cover the difference between what the law costs to implement and what the Federal government appropriates with state and local dollars. This difference is the central issue in this case and the schools sought a declaratory judgment stating that they need not use state and local dollars for this supplemental purpose and that other federal funding cannot be withheld for failures to implement where Federal dollars are insufficient. The District Court denied the request.

On appeal in the Sixth Circuit, the court used the recent special education case, Arlington v. Murphy, to illustrate that the central question was whether a reasonable state official would have believed that their obligation under the Act included following the all the provisions, even when the money was insufficient. The court said:

a state official would not clearly understand that obligation to exist. To the contrary, based on this text, a state official could plausibly contend that she understood exactly the opposite—that her State need not comply with NCLB requirements for which federal funding falls short.

The District Court concluded that this provision only meant to stop rogue federal officials from enacting new provisions, but the Appeals Court disagreed. After reviewing the legislative history of the law and interpreting the plain meaning of the statute, the court concluded:

a state official deciding to participate in NCLB could reasonably read § 7907(a) to mean that her State need not comply with requirements that are “not paid for under the Act” through federal funds. Thus, Congress has not “spoke[n] so clearly that we can fairly say that the State[s] could make an informed choice” to participate in the Act with the knowledge that they would have to comply with the Act’s requirements regardless of federal funding. Of course, if that ultimately is what Congress intended, the ball is properly left in its court to make that clear.

While this is only the opinion of the Sixth Circuit and clearly does not put an end to NCLB (remember if there are federal dollars to cover the laws provisions, they must be implemented), this is a major victory for states and schools that are struggling to pay for the implementation of NCLB out of their own pockets.

[Crossposted At the Schoolhouse Gate]

Texting Students: Not so Bad

Proof that texting in schools is not all bad: College and university officials are now utilizing text messages to relay various messages to students, including information about hazards on campus and snow days. This after using the texting system to alert students of school violence dangers in the wake of the Virginia Tech shootings. School officials have spent years trying to get the students to stop texting, but now it seems universities may be encouraging it. Just the latest example of schools using new technology to their advantage after thinking it was the end of the world (remember "the students can text each other exam answers scare?"). Next, I suppose schools will start instant messaging their students.