CaseInPoint

I was a bully in junior high.  More accurately, I was part of a small group of girls that were bullies.  I don’t remember anyone ever saying to us that we were bullies, or ever really getting into trouble for our behavior.  In our little minds, we just didn’t like this particular classmate of ours for a whole bunch of really stupid reasons, but which were of paramount importance to us at that time and so we teased her and we thought it was OK.  We said mean and nasty things about her.  We pushed her into lockers and threw basketballs at her in PE class.  We bullied Amanda because she came from the poor side of a town that didn’t even have a wealthy side, because her mother had been married a couple of times, because she was short, because her clothes weren’t new, etc. etc., but mainly we picked on her because of her last name….. It happened to rhyme with a four-letter word that begins with the letter F.    When I think about this, I’m glad that I don’t go home very often, once or twice a year maybe, because every time I’m there I hope that I don’t run into her, because 30 years later I know  we were bullies, whether anyone ever called us that or not, and I am ashamed.  So today’s blog is for Amanda.

In 2006 NSBA surveyed 32,000 students and over 50% reported seeing someone bullied every day, and the same 50% expressed doubt that teachers could stop the behavior.  But we have an affirmative duty to stop this type of behavior every time we see it or hear it.  The law, and Superintendent Policy JICDE, is clear about a school district’s obligation to prevent harassment and take action when it occurs.   As we talked about in District Leadership, cyberbullying is on the rise and the type of bullying that can occur in that medium is often worse than the bullying that takes place in person. (I don’t even want to think about how we would have treated Amanda if we had had cell phones) 

At the elementary level, and sometimes at the lower middle school level, the type of behavior that occurs mainly falls under the term of bullying.  By the time our students are at the upper level of middle school and in high school, more often than not this behavior falls into the category of harassment or sexual harassment.

What is harassment?  Harassment based on a person’s race, gender, sexual orientation, gender identity, ethnic background, religion, national origin, age or disability is a form of discrimination prohibited by state and federal laws.  Discrimination against these “protected classes” is prohibited in places of employment and public accommodations, such as public schools.  Title IX goes another step further to protect students from sexual harassment and prohibits discrimination on the basis of sex under any education program or activity receiving federal financial assistance.

When is a district liable?  A district will be held liable when an appropriate school official has actual knowledge of discrimination, including harassment; that official has authority to take corrective action to address the discrimination; the school official fails to respond adequately; the inadequate response amounts to deliberate indifference; and the harassment was so severe, pervasive, and objectionably offensive that it deprived the victim of educational opportunities or benefits provided by the school system.  (”kids will be kids” is an example of inadequate response, and, depending on the circumstances, may lead to a claim of deliberate indifference)

What do we do?  (1)  Make sure students, staff, parents and community members understand our policies.  (2)  Strictly enforce the policy in every building.  (3)  Hold everyone accountable for creating and maintaining safe learning and work environments. 

Secondly, just a reminder to discuss with your staff the  Alcohol and Drug policies that were distributed on Wednesday.   I hope each of you has a wonderful long weekend, and as always, if I can be of any assistance, please let me know.

The Hotel Sacher, in Vienna, Austria is world-famous for its dessert, the Sacher Torte.  For more than a hundred and fifty years it has been considered by many as the world’s most sophisticated chocolate pastry.  I was fortunate enough to visit this hotel and experience this culinary marvel in the summer of 1993 while travelling through Europe with 17 teenagers who had recently graduated high school.  Every now and then when I have that chocolate craving, if I concentrate really hard, I can smell and taste and remember that dessert, and I am scared to death!!!   Knowing what I know now, after going to law school and with a few more years in education under my belt, I don’t know if I would ever travel through Europe with 17 teenagers again.   Fortunately, nothing happened, and the three weeks we spent together are some of my fondest memories of teaching that I have. 

BUT, tort law (there’s the connection finally) of which I was blissfully unaware then, imposes such a duty of careupon educators that I really would be hesitant to take such a trip again.  This is one area of law that seems to be confusing for a lot of educators, and/or creates a certain amount of anxiety about potential lawsuits.  Hopefully, I can clear up a bit of that confusion, and maybe even put our fears to rest…..because on second thought, the Sacher Torte experience may well be worth the risk .

Tort law imposes a duty of care on educators.  This means that we must use reasonable care not to injure our students, and to protect them from foreseeable dangers.  If we fail to use reasonable care, we are considered negligent, and if our negligence is the cause of a student’s injury, we or our school may be held liable in money damages to compensate the student for his or her injuries.  To figure out if we have been negligent, the court will ask if we acted as a reasonably prudent educator should have acted under the circumstances.  If the answer is YES, we are not negligent.  If the answer is NO, we are negligent.    Depending upon the particulars of the activity or event, the age of the students involved, other supervisory personnel, etc., this standard is raised or lowered.  In addition, if the student was also negligent, most courts will apply the standard of comparative negligence.  They compare our negligence against the student’s negligence and may award damages proportionately.  The younger the student, the less likely the courts will be to apply this standard.

Some common examples that MAY give rise to a claim of negligence:  (1) Ms. Busy leaves her class for 10 minutes to make copies of a handout.  While out of the room, students begin throwing paper wads, airplanes, and eventually a pencil.  This pencil lands in the eye of a student, permanently blinding her.  Ms. Busy had a duty to protect her students from injuries caused by other students if those injuries could be reasonably foreseen.  Most courts would find that a reasonably prudent educator would (a) know better than to leave their room unsupervised, and (b) would have been in a position to stop the misconduct before a student was injured.

(2) Instead of observing the students when she was on playground duty, Ms. Lesscare was gossiping with another teacher.  During this time, a student ran into the street for a loose ball, was hit by a car, broke both legs, and received 46 stitches. The court COULD assume that if Ms. Lesscare was doing her duty as assigned, and actively watching the children play, that there would probably have been time for the teacher to stop the student from running all the way into the street, depending upon where the student was when the student began chasing the ball.  (one of those where it depends on all the particulars)

Ultimately, it’s all about reasonableness, common sense, and follow through with expectations….from all parties involved. 

Have a great weekend, as always let me know if I can be of assistance.  And, if you’re not headed to Vienna anytime soon, you can order a Sacher Torte online.  Technology is truly a wonderful thing!

Today is the 27th birthday of my beautiful and amazing oldest niece Alaina.  I say that she’s beautiful, because she is…now.   I first saw her when she was about four days old.  I was away at college when she was born and when I came home that weekend, my brother and adoring father was pushing down the top of her head because it was pretty pointed, we called her a cone-head for a few weeks.  Thankfully she doesn’t remember that time.  Did all of his pushing make a difference?  Who knows, I just know her head isn’t pointed now and she is amazing.  She’s currently an operating room nurse at the University of Missouri-Columbia Hospital.  She was hired on in that position before she finished her RN program because of her outstanding performance during her internship.  Alaina will finish this position in 10 days, and, because of outstanding work these past three years will receive a promotion to Clinician Nursing Specialist (something like that anyway) on September 1st.  She will first meet her patient in a clinic, assist the physician/surgeon in his diagnosis, further assist the surgeon in the operating room, make rounds on the patient while they are in the hospital, and finally, be their nurse as they receive follow-up care.  When she was telling me about this promotion and raise, I of course was immediately proud of her, but then said, “Sounds like more work than just being in the OR”.  Her reply, ”Yes, but I can make more of a difference in their lives, they never even know I’m there in the OR.” 

Why do I share this story?  Partly because my niece is an amazing young woman of whom I am extremely proud. Not to be slighted, my younger niece Alicyn, who turns 21 in a couple of months, is double-majoring in secondary math and science education at Truman State University.  In two years, she will need a job……I can provide excellent references!  And partly I share Alaina’s story because she, like so many of you, WANTS to make a difference, and DOES make a difference, even if she doesn’t know it. 

But here’s the real reason for my story.  Cyndra Foster, who does great things at Brighton Heritage Academy, has three individuals who have previously earned their GED, wanting to come back to school and get their high school diploma.  When she first called to ask me how that would work, my first response was, “No, they already have a diploma, they can’t have two.”  She pushed back at me a little bit, which I appreciated, and I said I would look into it.  I then talked to Isobel who said “Why not?”  I again said, because you can’t have two diplomas.  “Why not?  You can have two master’s degrees or PhDs”.   So, I gave in and called CDE…..

It seems that if a person wants the high school diploma, there is a HUGE risk that must be taken.  The GED must be rescinded completely.  The individual must return all diplomas, transcripts etc to CDE along with a letter stating, “I hereby rescind my GED in order to return to high school for the purpose of obtaining my high school diploma.”  The risk is once that GED is returned, they can’t get it back, even if circumstances require them to leave high school again.  It’s all or nothing.  And in the meantime, when applying for jobs they cannot claim that they have a GED, so they are at risk of not getting the job, and of getting paid less for the jobs they do get. 

So why would someone who has taken this difficult test and passed it, take that chance?   There are probably many reasons, but I firmly believe that somewhere along the way SOMEONE, YOU perhaps made a difference and they remember that.  They may have been in a crappy place in their lives for whatever reason, and yet, something positive that YOU did stuck with them.  So, on those days when nothing is going right, and you are watching the clock and counting the minutes until that day is over, and you can’t think of anything that you accomplished, take heart in knowing that somewhere out there is someone whose life may be changed by you, even on a crappy day. The steps for those students wanting to rescind their GED are listed below.  Have a restful weekend, and, as always, let me know how I can be of assistance.

I strongly suggest that before the individual takes these steps that they are counseled as to the risk they are incurring by giving up their GED.  For example, once the GED is rescinded and prior to the earning of the diploma, they would need to answer NO on any job application etc. when asked if they have a GED or HS diploma.  This could affect their earning potential for this time period.

 In addition, prior transcripts would need to be obtained for proper academic placement.  Credit for the GED cannot be counted towards graduation requirements.  Depending on when they dropped out, there could be a significant amount of time before earning the new diploma. 

 However, after counseling, if the individual is determined to return to high school, here are the steps they must take:

 A letter must be submitted to:    GED Testing, 201 East Colfax, Rm 100, Denver, CO 80203

1. The letter must state that they are requesting rescission of their GED in order to pursue a high school diploma.
2. The letter must contain name, address, social security number, all documents received from GED (transcript, diploma, etc) must be returned.
3. AFTER this process is completed, they can enroll in a high school, and must mark on any enrollment forms that they DO NOT have a GED or HS diploma.

One of the best things about working in academia is that “first day feeling”.  There’s nothing quite like the energy that is created, seemingly exponentially, when we get together and plan for another school year.  And when all of those plans come together on opening day, it is like no other work experience I’ve felt before.  Like most of you, since starting kindergarten I have remained on an academic calendar, other than a brief lapse when I worked in the real world for about two years.  While the salary was great, and my boss was okay, and the work was challenging, something was always missing…..students, teachers, freshly-sharpened pencils, the smell of new books, the box of 64 crayons, a fully-charged IPod (keeping up with the times), a new cell phone that texts even faster, but most of all is that energy.  And although students rarely walk through the doors here at the ESC, we had a little boost of electricity in our air yesterday too.  So, I hope each of you had time to revel in that “first day feeling” before the “first day exhaustion” hit at the end of the day.

This week’s blog is just a little review of some cases that I think I mentioned during last year that were settled over the summer.  I hope you find them interesting/helpful, and, as always let me know how I can be of service.

In Forest Grove School District v. T.A., the US Supreme Court ruled 6-3 that the Individuals with Disabilities Education Act (IDEA) authorizes reimbursement for private school placement of a special education student when a public school fails to provide that student with a free appropriate education (FAPE), even if the student has not previously received special-education services from the public school.   This seems to contradict the ruling issued earlier last year in the Thompson v. St. Vrain case where the court indicated that the reimbursement was only possible if the public school was unable to provide FAPE after being given the opportunity to do so.

In Safford Unified Sch. Dist. #1 v. Redding, the US Supreme Court ruled 8-1 that a strip search of an Arizona student violated her 4th Amendment right to freedom from unreasonable search and seizure, but further concluded that school officials were entitled to qualified immunity from her lawsuit because her rights were not clearly established at that time.   School officials had been told the student was handing out pills to other students, and one student turned over a pill said to have been obtained in this way.  A search ensued, but no pills were found.  The student was then asked to disrobe and adjust her underwear to that any hidden pills could fall out.  None did.  Ultimately, no pills were found and, as the Supremes said, this was an unreasonable search.

This last case would be non-binding on us since it is only a District Court level resolution.  I’ve included it for three reasons (1) It’s from Missouri, my home state (2) it’s from Hannibal, home of Mark Twain, Tom Sawyer, Becky Thatcher, and Huck Finn (that’s the old English teacher in me coming out), and, most importantly it’s something we directly discussed in our Leadership Training.

In Mardis v. Hannibal Public School Dist. #60, the US District Court for the Eastern District of Missouri recently denied a school district’s request to dismiss a student’s First Amendment claim in a case in which the district suspended the student after it learned about emails he sent a friend from off-campus that allegedly included threats against other students.  The court concluded that the district had failed to support its argument that the student’s statement were “true threats” that were not protected by the First Amendment or that the email had created a “substantial disruption” in the school.  The reason the court ruled against the school district, at least in part, was a lack of documentation regarding the substantial disruption argument.  The school claimed that when these threats became known they received numerous calls from parents, community members, and the media, but in court could show no proof of these calls.  Secondly, the district stated that, as a result of these threats, they implemented several safety precautions that further disrupted school, but again could provide no proof of this implementation.  On the district’s argument that the email statements were true threats, the court dismissed that argument as well because the school was unable to provide a copy of the email during the court hearing.  SO>>>>the point of the story……….DOCUMENT, DOCUMENT, DOCUMENT!   The case is ongoing due to other issues raised.  The student has since graduated, but becuase this suspension is on his school records, the case has not become moot.  Should the court continue to rule in favor of the student, the school will be required to erase the suspension and all other references to this incident from his record.  Tom, Huck, and I will keep you posted!

I hope each of you had an amazing first day of school yesterday

I hope this Friday afternoon finds all of you well and anxiously looking forward to having your staff in the building on Monday.   Over the summer, I was fortunate to work with Andrew Wright to create a district archiving policy attached below.   Portions of this policy are only applicable at the district level, but many portions will apply to your building.  Please review and share with the appropriate staff member(s).  And, as always, let me know if I can be of any help.

So I have these great plans to start the year completely on top of things, you know, rejuvenated, organized, prepared, …..sound familiar?  I intended to have my blog updated last Friday as promised, had blocked time out on my calendar Friday morning to write, had my materials ready to go……and then a summer cold hit me mid-morning on Thursday, and by the end of the day sleeping was the only thing on my mind.  Which I did all day on Friday, Saturday, and most of Sunday.  To all of you who came looking at my site (I know there had to be at least one of you….) I’m sorry.  Here’s some information that I hope you will find useful.  Achoo!

Q:   Can we search a student’s cell phone?       A:    YES, if you have reasonable suspicion that the student was using the phone during, or as part of, the commission of some type of inappropriate behavior.  Example:  Student skips class and goes to Taco Bell.  Can you search phone during the imposition of consequences for skipping class?   NO, it’s not related.    However, same student skips class, and while at Taco Bell decides to make arrangements via text message to buy an illegal substance.  Can you search the phone?    YES, phone was used as part of the inappropriate behavior.

Q:   What do we do when staff members come to school hungover?   A:   We (some members of executive leadership) are meeting next week to review current policy and to discuss what the appropriate steps would be for you to take.  If you have thoughts or ideas, please either respond to this posting, or send me an email.

Q:   Are all people who live in a trailer park considered homeless?   A:   NO.   The law is referring to trailer parks that house impermanent structures ie, a campground or RV park that has trailer sites.  Persons living in a  permanent site, such as Eastgate near Pennock Elementary, would not be considered homeless under this section of the law simply because they live in a mobile home.

Additional Info:

Please remember to include the District’s Non-Discrimination clause on all public documents.

Please remember that if you, or any staff member, have a web-page where student photos are posted to obtain permission from the student/parent/guardian prior to posting the photo.

Wow!  Negotiations are completed, contracts are in the mail (most of them anyway), and on Monday and Tuesday, we have our District Leadership training. Students are back in only two and a half weeks, teachers in two weeks, new teachers in one week.  Where did the summer go?  Not to sound like my mother, although I hear it is inevitable, but time really moves quicker as we age!  Speaking of moving quickly, I wanted to provide some resources that will be shared on Monday that I hope you will find useful as you prepare to welcome back your staff.  And, keeping with the theme of moving quickly, only 4 1/2 months until Christmas Break!

Reporting Child Abuse         Supt. Policy     JLF, JLF-R, CRS 19-3-304

Sexual Harassment              Supt. Policy     GBAA, GBAA-R, JBB, JBB-R, JBB-E

FERPA                                   20 USC 1232g

Homeless Student                McKinney-Vento Act, CRS 22-1-102.5

504 Plans                              Section 504 at 34 CFR 104.35, Americans w/ Disabilities Act Amendments Act

Dropout Policy                     Supt. Policy JFC, JFC-R

Communicable Diseases     Supt. Policy EBAA, EBAA-R, GBGA, JLCC, JLCC-R

So, I’m sitting here with my window open, listening to the birds sing, and I wonder if they care that I’m listening to their music for free?  Should I, in gratitude for their songs, provide some bird seed or something so that they will keep singing?  Or is it just us humans that get hung up on those kinds of issues?  Where was it that one of those valuable lessons our parents taught us, to share, was somewhat lost?  Anyway, I’ve been looking into the use of various electronic messaging systems and their legality of usage within our district.  Here’s what I’ve found so far:  I am happy to share it with you!

Issues Surrounding the Use of Free Internet Communication Programs

1.      Open Records

2.      Archiving

3.      eDiscovery

4.      Confidentiality

5.      Intellectual Property

A.    Colorado Open Records Act requires that entities, upon appropriate request, make available records to the public.  At issue here is the question of what to do if we use such sites for collaborative work, but are not able to archive them, and thus are not able to produce them upon request.

1.      This is a non-issue because we are required to “produce records maintained in the normal course of operations.”  These are not records maintained in the normal course of operations, and thus are not subject to this act.  In fact, we are better off not archiving these programs.

B.     Archiving.  Law requires that we store for various periods of time certain data and documents.  For example, we are required to archive and store email according to District Policy.  We currently do not have such a policy.  In addition, this law was created to prevent the destruction of communications related to potential or actual litigation.  State law does not currently address these particular types of sites.  As we move forward into creating our archiving policy, we can choose to address, or not, this issue.

C.     eDiscovery.  The Federal Rules of Civil Procedure were revised in 2007 to address this specific issue, although not these specific sites.  The law specifically addresses email, instant messaging, and documents.  The argument that would be put forth is whether or not the words contained in these sites equal a document, and the answer would be yes.  However, the rules go on to discuss “documents, data compilations, and tangible things within the possession, custody, or control of the party that are relevant to disputed facts…”  Since the documents would not be within our “possession, custody, or control” we would not be in violation of eDiscovery rules by not being able to produce them.

However, once we can reasonably anticipate impending litigation, or receive actual notice of impending litigation, we would still be under legal obligation to then save all “documents, data compilations, and tangible things within the possession, custody, or control of the party that are relevant to disputed facts…”

We would need to contact the Yammer host (or other similar hosts) to inquire as to whether or not they have stored any of our posts.  If they have, we would need to obtain them and be prepared to pay any associated costs.  If they have not, and would not agree to segregate and hold, we would need to suspend use of the service for any discussion surrounding the litigation issue.

D.    All staff should be made aware of, and sign off on, the rules surrounding student confidentiality (FERPA).  NO individual student should be discussed on these sites.  So teachers who want to use these sites to collaborate on classroom issues or curriculum, could use language such as, “I’m experiencing difficulty with my English class on this concept.”  They could NOT say, “Janet is having difficulty with this concept, does anyone have any ideas on how to help Janet?”

E.     Intellectual Property.  The Asset Protection monitoring report requires that the superintendent protect against the loss of intellectual property.  Intellectual Property is defined as creative works that have economic value and are protected by law. Intellectual property laws reward the creators of most types of intellectual property by preventing others from copying, performing, or distributing those works without permission. The main purpose of this protection is to provide incentives for people to produce scientific and creative works that benefit society at large. Some types of intellectual property are automatically protected by law from the moment of their creation. Other types require the creator to request a specific grant of rights from a government agency before they can be protected by law.

If we are sharing something that we have created, and that, according to the definition used above, is intellectual property of the district, this item must not be shared on one of these sites, if that site is open to outside review, and therefore open to the taking of the property.  Our conversations or questions that would post on these sites would not be considered intellectual property.

CONCLUSION

We do not have an affirmative duty to record, transcribe, archive or otherwise create and maintain “records” not in the normal course of business.  The Open Records Act does not equal Open Information.  If there is no record, as defined above, there is no legal obligation to produce and no violation of the law if not produced.  Therefore, the use of these types of sites for collaborative purposes is appropriate under the guidelines of protecting student privacy rights and protecting intellectual property rights.

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