School districts should expect even more litigation in coming years as more students are diagnosed with autism. A just released comprehensive study by Perry A. Zirkel, Ph.D., J.D., L.L.M., shows that parents of autistic children are ten times more likely to bring suit against their home school district than are parents of children with other IDEA recognized disabilities.
Check out the rest of my Examiner.com article here.
I posted an article on Examiner.com on November 19 in which I discussed a case where a federal court dismissed a suit in which students sought to sue the school district for suppression of their free speech rights because the school had not allowed them to wear American flag-themed shirts to school on Cinco De Mayo. The school district prevailed when the court, applying the Tinker standard, stated the school had enough evidence to form a reasonable suspicion that the wearing of the shirts might lead to disruption at the school.
In a separate case but on a similar set of facts, a sister court reached a different conclusion and is allowing a student suit against the district for a violation of his free speech rights to proceed. The two cases came down on exactly the same day. Bear in mind, this ruling does not mean the students here will ultimately prevail, only that they have put forth sufficient evidence to show that a genuine question exists to try before the court. Comparing these two cases provides a glimpse into how fine the distinctions can be that school administrators must make.
Case Facts: In Kuhr v. Millard Public School District, a Millard South High School (MSHS) student, Julius Robinson, was killed by a known gang member. To memorialize him, his friend Dan Kuhr put together t-shirts that showed two pictures of his friend, one in his football uniform and one talking on the phone and smiling. Above these pictures were the words “Julius, RIP, 6-8-90, 6-15-08.” While testimony is contradictory as to whether Julius was in a gang, it is undisputed that he was friends with gang members and dressed the part. Both Dan and his younger brother and sister began wearing the shirt he had designed, as well as wrist bands memorializing their friend, to school.
The three siblings wore their shirts a number of days without any incident. Soon though, a teacher noticed Dan wearing the shirt. She had been trained that shirts bearing R.I.P. are quite typical for gang members. She notified the assistant principal about the shirt, and he called Dan from class. While in the office, Dan was told he must remove the shirt or turn it inside out to hide what was written upon it. Since Dan would not comply with either directive, he was sent home from school that day.
The reason given by the school for asking for asking Dan to remove the shirt was a fear of gang reprisals. According to the school principal, he had been told by a teacher that she had overheard a conversation between students where violence against the wearers was threatened.
Reasoning: The court ruled that this type of expression in school is ruled by the Tinker standard. In Tinker, the Supreme Court ruled that student do not shed their right to freedom of speech at the school house door. However, the rights of students are not the equivalent of the rights of adults. If a school can show that the speech is likely to disrupt school activities, then the speech can be suppressed. The court noted that the case closest to the facts here was Brown v. Cabell Cnty. Bd. of Educ. In Brown speech was suppressed by a school due to a fear of gang violence. Applying Brown, the court noted
“The ultimate issue in this case is whether the shirts were likely to interfere with school activities, including, but not limited to, the possibility of threats or acts of gang violence.”
In a summary judgment case such as this, for the court to allow the suit proceed, a party must show that a reasonable jury could conclude that the district lacked a reasonable forecast that school disruption could occur. The court appeared to rely heavily in making its ruling that the three siblings had worn the shirts and bracelets on a number of occasions prior to their being noticed by the teacher and no violence or disruption had occurred on campus. The court stated that based on these facts, a reasonable jury could find that the district administrators possessed no more than “an undifferentiated and remote apprehension of a disturbance.”
A Californiafederal district judge for the Northern District of California granted a high school assistant principal’s motion for summary judgment in a case where the school administrator had barred certain students from wearing American flags to school on Cinco de Mayo. In Dariano v. Morgan Hill Unified School District, U.S. District Chief Judge, James Ware, denied the students’ claims that their right to freedom of speech had been violated as well as their rights to equal protection and due process.
Rest of article here.
Judge Posner
“Modern American kids, it seems to me, have excessive self-esteem,” said Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit, inChicago. “They’re spoiled and coddled. Many of them have very aggressive parents.”
The judge, a conservative nominee of President Ronald Reagan who is considered one of the leading intellectuals of the federal appeals courts, spoke Nov. 11 in Chicagobefore the national conference of the Education Law Association. That group is made up of professors who teach education law, as well as practicing lawyers and school administrators.
See the remainder of Mark Walsh’s excellent article at the following link…
http://blogs.edweek.org/edweek/school_law/2011/11/judge_posner_on_school_law_and.html
Important tax breaks exist in the tax code for parents who shoulder the expense of raising a special needs child. Read this important article in the Wall Street Journal by Laura Sanders.
Check out my latest Examiner.com article on how national school administrative organizations are requesting that the Supreme Court take up a student free speech case to clarify the amount of rights students have to speak their mind online when their speech often impacts what happens at school.
Through my Examiner.com articles I have been highlighting the struggle that education is facing with the advent of social media. This media is impacting students, teachers, and administrators. Here is another story that highlights the tension existing as schools struggle to balance free speech with the necessity of effectively regulating their education institutions.
An elementary school teacher fromNew Jerseyhas been terminated from her tenured position due to a post on her Facebook page in which she referred to her first grade students as “future criminals.”
Administrative Law Judge Ellen Bass held that the district’s need to efficiently operate its schools outweighed school teacher Jennifer O’Brien’s right to free speech. “In a public education setting, thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools,” she wrote.
The judge was also influenced by what she saw as O’Brien’s lack of remorse for her actions. She noted in her decision that O’Brien did not express genuine remorse at her hearing, stating that Bass had left the hearing with the impression that “O’Brien remained somewhat befuddled by the commotion she had created.”
The ruling allows O’Brien to resume her teaching career elsewhere, just not Patterson, New Jersey, the community in which she was teaching-provided that she undergo sensitivity training.
This ruling is not final though since O’Brien’s lawyer has already declared his intention of appealing the ruling and before even that, the state education commissioner has 45 days to accept, reject, or modify the judge’s ruling.
For further details on this story, please go to the link below.
www.legalclips.nsba.org/?p=10160
A recent preliminary study in the prestigious Journal of the American Medical Association suggests that autism originates prenatally. In the study, doctors examined the brain composition of seven boys with autism and six typically developing males ages 2 to 16 who had died
Researchers found that the autistic children’s brains outweighed the typical children’s brains by 17.6% and that this excess weight was attributable to to the autistic boys brains containing 67% more brain cells in the prefrontal cortex. How do these excess brain cells show that autism is prenatal though? According to the researcher, Eric Courchesne, the lead author of the study and the director of the Autism Center of Excellence at the University of California, San Diego, the neurons in this area of the brain are produced before birth and do not continue to grow afterward.
These findings are very important information if substantiated by further research for a number of reasons.
The study’s author notes limitations in his study though. Because neurons can only be counted after death, it is difficult to attain adolescent brain donors. Thus, the study’s results are based on only the thirteen brains mentioned above.