Monthly Archives: October 2012

Coulter defense of her “retard” comment reveals her true colors

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Ann Coulter (Photo credit: Huffington Post)

Following the third debate between President Obama and his Republican opponent Mitt Romney, Ann Coulter a news “personality,” tweeted out, ““I highly approve of Romney’s decision to be kind and gentle to the retard”, referring to President Obama. Immediately and justifiably a large number of people began to call Coulter out for her offensive word choice, which upset people for two main reasons: 1) that she finds it okay to use such a demeaning term to the mentally disabled, and 2) that she would feel it is okay to speak about an elected president of the United States in such a manner. Coulter’s defense of her “retard” comment reveals her true colors.

My biggest problem with Ann Coulter is what her actions show about her character. I do not follow Ann Coulter so maybe my thoughts are a statement of the obvious to people who do, but through this controversy, my perception of Ms. Coulter is that she is a bully, the worst kind of bully. The type of person who targets those who least have the ability to protect themselves. Bullying of special needs children is a huge problem in our world. In my special education law practice, I work with developmentally disabled children every day. Among the many challenges they must face, one particularly common and galling one is bullying. Whether it is name calling or physical assaults, special needs children are far more likely to be bullied than typical school children.

So, when Ann Coulter chooses to use a word that Peirs Morgan correctly noted was the equivalent of the “N” word to black Americans, she intentionally choose a word that she must know brings pain to a great many people who simply do not deserve it. This begs the question of why, what is her motive for doing this? Well, it appears for the basest of reasons, to draw attention to herself because she has a new book being released, Mugged: Racial Demagoguery from the Seventies to Obama. According to David Phillips,

When Coulter makes her outlandish and offensive comments, more often than not, she has a new book that she wants to promote.

Based on this, it is safe to assume that so long as Ms. Coulter profits through increased book sales, she does not care upon whom she needs to step on to get them. Even her defense of her comments was off-putting. First, she attacked liberals who had made offensive comments about the disabled, mentioning Obama’s Special Olympics” comment concerning bowling and also Al Gore’s comment concerning right wingers having an “extra chromosome.” (meaning have Down’s Syndrome) There are some huge differences between these comments and hers. First, both President Obama and Al Gore apologized for their comments rather than going on the offensive. Second, neither of them made the comments for financial gain, as Ms. Coulter appears to be doing.

Finally, her defense that “retard” is a synonym for loser just does not hold water. According to Dictionary.com, the N word means “a victim of prejudice similar to that suffered by blacks.” I’m hard pressed to believe that Ann Coulter would tweet the N word and try to defend herself by saying that she felt the person she was tweeting about was a victim of prejudice.

Ann Coulter is receiving a great deal of blow back for her tweet. My hope is that if she receives enough, she may actually recognize the error in her ways. Being cynical though, I can say an apology coming out after her comments have gotten her on as many talk shows as possible promoting her new book would be worse than worthless.

If you would like to watch an eloquent rebuttal to Ann Coulter’s comments given by John Franklin, a disabled individual, click here.

8th Circuit holds student racist/sexist blog speech unlikely to be protected

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Overturning a preliminary injunction issued by a lower court, the U.S. Court of Appeals for the Eighth Circuit handed down a ruling this week that a blog created by Missouri high school students containing both sexist and racist speech was unlikely to be First Amendment protected speech.

Lee Summit North High School

Lee Summit North High School
(Credit: edcampkc.wikispaces.com)

The three judge panel unanimously overturned a district’s court’s preliminary injunction which had allowed the Lee’s Summit North High School student creators of a blog to return to school pending a court decision on whether the speech on the blog was protected.

In the case, two twin brothers, Sean and Steven Wilson, created a website called NorthPress, part of which contained a blog. According to the Wilson brothers, the purpose of the site was to “discuss, satirize, and ‘vent’ about events at Lee’s Summit North.” Because they used a Dutch domain site, U.S. users were prevented from finding the website using a search engine. However, any person could access the website provided they knew the website address: NorthPress was not password protected.

During December, 2011, the twins added posts to the NorthPress blog which included a variety of sexist and racist content. The sexist comments went to far as to mention a fellow female student by name. The racist posts discussed various altercations that had taken place at the school and mocked black students.In addition, a third unnamed student added another racist post.

The exact degree to which the speech was off-campus was a matter of dispute in the case. It was shown during the case that one of the Wilson twins used a school computer for the purpose of uploading computer files necessary for the creation of their website. District records also show that the website was accessed two other days, but District was unable to prove who accessed the site or whether they merely looked at the site or contributed files to it.

In additional testimony, the Wilsons stated that they only told five or six other students about the site, but by December 16, 2011, the student body was definitely aware of the site’s existence, and school administrators became aware of it that same day. Following a brief investigation, the school suspended the two boys for ten days and referred them for expulsion. There ensued a hearing, then an appeal by the Wilsons, then a second hearing at the conclusion of which the Wilsons were suspended from Lee Summit North but were allowed to attend Summit Ridge Academy. The Wilsons filed suit seeking a preliminary injunction in order to lift the suspensions.

The District Court quickly conducted a preliminary injunction hearing. In the trial, the Wilsons argued that their website was satirical rather serious and that they were not racist. Further, they argued that their website had not caused disruption at the school. The boys testified that December 16, was pretty much like every other day at Lee Summit North. Their additional testimony related to the fact that attending Summit Ridge Academy was deny them the opportunity to possibly attain a band scholarship and also to take honors level classes.

During this hearing the District argued that student body wide discovery of the site had indeed caused substantial disruption. District argued that returning the boys to Lee Summit North would cause further disruption at the site and could endanger the boys’ safety.

A federal district judge ruled in the boys’ favor, holding that while the speech may not be protected, the boys were suffering irreparable harm by not being able to attend their regular school. Based on the March ruling, the boys were allowed to return to Lee Summit North.

The school district immediately appealed the lower court’s ruling. On October 17, 2012, the 8th Circuit issued its opinion in  S.J.W. v. Lee’s Summit R-7 School District, finding for the district and overturning the original preliminary injunction.

The court’s decision is in line with a number of Federal Courts of Appeals holdings addressing student off-campus speech which creates a campus disruption. Applying the Tinker standard, the court reasoned that here, while it was contested whether or not the speech occurred on campus or not, the speech had as its target the students of Lee Summit North. This, coupled with the fact that the speech had been found to have been responsible for causing a substantial campus disruption, meant the students’ speech was unlikely to be protected under the First Amendment, and thus the students’ discipline should remain in place pending an actual hearing to decide the issue.

In addressing the issue of irreparable harm to the twins, the 8th Circuit held that the school the boys were to attend was accredited and would allow the twins to graduate on time. Further, on the issue of college scholarships, the Court held that potential scholarships were too speculative in nature to constitute harm to the boys.

The case brought up another novel legal issue which the Court was able to dispatch without ruling on its merits. Attorneys for the twins argued that they could succeed on the merits of their case under the Communications Decency Act (CDA) which states in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). The gist of their argument was that as publishers of NorthPress,the boys were merely providers of a computer services, NorthPress, and they cannot be held responsible for the content of the third student’s racist post, which they contended during the case that if there was a disruption, it was due to that post, not theirs.

The three judge panel made no determination as to whether the CDA applied here, since the point was moot. The lower court had found that the twin’s post had been disruptive to the school, not just the single post of the third student. This being true, the CDA would not apply.

In the end, the decision of what is to happen to the boys pending a final decision on their case was left to the lower court.

OCR received its greatest yet number of disability complaints

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The federal Office of Civil Rights (OCR) has just released a new report, Disability Rights Enforcement Highlights, and it reveals among other interesting findings that during the three year period from 2009-2011, OCR received its greatest yet number of disability complaints. From 2009-2011, OCR received over 11,700 disability complaints, which comprised 55% of the total overall complaints received. The other 45% of the claims received were related to other areas of OCR enforcement in areas such as national origin, race, age, and sex.

 

Disability Rights Enforcement Highlights

Based on the report, it is clear that the vast majority of disability complaints were in the area of FAPE, Free and Appropriate Public Education. FAPE questions concern whether a district has offered a special needs child an educational program from which the student can obtain at least some minimal benefit. If not, the student has been denied FAPE. Of the 11,700 disability complains, 4678 were devoted to FAPE questions, or roughly 40%. Other high complaint areas were exclusion, retaliation, and academic adjustment. During this three year span, the OCR launched 15 FAPE related investigations of its own.

Another important function that OCR noted it played over this same time span was protecting the educational rights of “wounded warriors.,” our nation’s soldiers who have returned home from battle with permanent injuries that qualify them for educational protection. OCR noted that often these former soldiers are not familiar with the educational protections provided for them under federal law.

Similarly, educational institutions are not uniformly prepared to serve an influx of veterans with combat-related disabilities such as Traumatic Brain Injury and Post-Traumatic Stress Disorder. OCR’s technical assistance has informed veterans, educators and service providers from institutions such as the Veterans Administration about how the protections afforded to post-secondary students with disabilities apply to those returning from war.

Here are examples of some of the investigations based on complaints received by OCR.

Academic Adjustment: An HIV positive student alleged that his college discriminated against him by dismissing him from its medical office technology program. One of the required classes for it mandated that the students draw blood from one another, and the school dropped the young man due to safety concerns. In order to resolve the complaint, the school agreed to re-enroll the student, consider the student’s request for the academic adjustment of not having other students draw his blood, and provide the college’s staff with training on the necessity of providing academic adjustments to disabled students.

FAPE: OCR facilitated Early Complaint Resolution where parents alleged that a school district had not faithfully implemented their child’s IEP (individualized educational program) who qualified for services due to a mood disorder. Based on these efforts, the district agreed to schedule an IEP to discuss the parent’s concerns and to provide notice to the teachers of the requirement that they implement the IEP.

Harassment: Parents filed a complaint based on harassment they alleged their student had received due to a disability related body odor issue. The child had been previously diagnosed due to Fragile X Syndrome, ADD, Asperger’s Syndrome, and Tourette’s Syndrome. The complaint alleged that based on the body odor issue, the student had been detained by school staff who made her take a shower prior to attending class, had staff spray air freshener on her in front of other students, and be sent home prior to the end of the day due to her body odor. After OCR facilitated Early Complaint Resolution, the school district agreed to train staff regarding the student’s disabilities, enroll the student in its Senior Life Skills course, offer weekly social work services, and assist the student in finding community employment.