Monthly Archives: March 2013

Due process required to revoke inter-district transfer

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A federal court has ruled that under existing Kentucky law, a school district must provide due process when revoking an inter-district transfer once it has been granted for that school year.

In G.C. v. Owensboro Public Schools, a panel of the U.S. Court of Appeals for the 6th Circuit ruled 2-1 that a student’s due process rights were violated when the school district terminated his inter-district transfer for disciplinary reasons without a hearing after the transfer had already been granted and the child had begun attending school.

In the case, a student identified as G.C. began attending Owensboro Public School District at the start of his 7th grade year in 2005 under a reciprocal agreement with Daviess County Public School District, his district of residence. This agreement is governed by Board Policy 09.125 which provides in pertinent part, “The continued enrollment of non-resident students in the District’s schools is subject to the recommendation of the school Principal and the approval of the Superintendent.”

Per court documents, G.C. began having disciplinary problems during his freshman year at Owensboro High School. In September of that year, G.C. was given a warning for using profanity in class. In November of 2008, G.C. was warned about excessive tardies to class and also disciplined for fighting and arguing in the boys’ locker room. During that same school year, in March, 2009, G.C. walked out of a meeting with the prevention coordinator for the high school.

School officials convened a hearing with G.C. and his parents regarding that last incident and G.C. was placed on probation and given a four-day in-school suspension. In just under a month G.C. was again suspended, this time for yelling and hitting a locker. At the end of the 2008-2009 school year, the school principal recommended to the district superintendent, Larry Vick,  that G.C.’s inter-district transfer not be renewed. Vick chose not to follow that recommendation and instead had a meeting with G.C.’s parents to discuss conditions for G.C.’s continued attendance at Owensboro High School. Per Vick’s testimony, at the meeting the parents were informed that any further disciplinary actions would result in G.C. not being able to continue attending the high school.

With this understanding, G.C.’s parents re-enrolled him at the high school for the 2009-2010 school year. Despite this agreement though, on September 2, 2009, G.C. was caught violating the school’s cell phone policy by texting during class. Based on this incident, the principal recommended to Vick that G.C.’s inter-district transfer privilege be revoked, and Vick agreed. G.C.’s parents were shortly thereafter informed of the revocation and informed that they could appeal the decision. After a meeting with the parents, their attorney, and the superintendent wherein they were informed that the revocation would stand based on the fact that G.C. “had violated the condition of his out-of-district privilege to attend Owensboro High School by texting in class,” the parents filed suit on a number of different grounds, including a denial of due process. The parents lost in federal district court but prevailed before the 6th Circuit.

In analyzing the case, the court began by noting Goss v. Lopez which held that the 14th Amendment’s Due Process Clause applies to suspension or expulsion from school where a state has conferred a property interest in public education. As is true in most if not all states across the United States, in Kentucky, a hearing is required before an expulsion can occur unless the student’s presence is dangerous or disruptive. Where a student is deemed dangerous or disruptive, a hearing is still required, but the student can be suspended from school pending the outcome of the hearing.

Both the state of Kentucky law and Owensboro Public School district regulations have expressly adopted regulation that states that expulsion from school requires a hearing. Here, it is undisputed that G.C. did not receive a hearing; it is disputed whether G.C. was expelled. While G.C.’s attorneys categorized the removal from Owensboro as an expulsion, the district argued what occurred was not an expulsion but a revocation of his right to Owensboro as an out-of-district student.

The lower court decision held that the district’s board policy governing inter-district transfers gave the district unfettered discretion to the superintendent to remove an out-of-district student like G.C. at any time. The 6th Circuit disagreed with this assessment. It drew a bright line between attendance and enrollment. The board policy (see 3rd paragraph above) applies only to enrollment. The court noted that Kentucky distinguishes enrollment from attendance. Enrollment, the court stated, occurs when the student registers at the beginning of the school year. Attendance, rather, is the on-going ability to attend the school once a student is enrolled. Thus, by revoking G.C.’s ability to attend Owensboro Public School, the district had de facto expelled G.C. from his high school and in violation of its own policy had done so without a hearing.

If you believe that your child’s transfer has been terminated unjustly, please contact The Law Office of Gregory R. Branch by emailing gregorybranch@edrightsadvocate.com or phoning the office at (714) 856-1166.

Suspicion-less use of drug sniffing dogs in schools held okay by 8th Circuit

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A Federal Court of Appeals has just upheld the use of drug sniffing dogs where a student claimed his constitutional rights were violated by his forced separation from his belongings in order that a dog drug sniff could take place.

The United States Court of Appeals for the Eighth Circuit ruled in favor of a Springfield, Missouri, school district and two of its administrators in a suit alleging that its policy of having students wait outside of a classroom while drug sniffing dogs swept the classroom for illegal narcotics represented an unconstitutional seizure of the student’s possessions.

The suit, Burlinson v. Springfield Public Schools,  was brought about when Springfield police arrived at Central High School during the 2010 school year. They were there to perform a random drug sweep in accordance with school police services’s standard operating procedure 3.4.1. Under that policy, certain randomly selected rooms are chosen to be sniffed by police dogs trained to identify belongings containing illegal drugs. Per the policy, a policeman entered the room of C.M., the child whose parents brought this suit, and informed the students that a random drug sweep was going to occur. The students were instructed to exit the room, leaving their personal belongings in place. C.M. left his backpack and books in the room as instructed and went into the hallway where he could no longer see his belongings.

After all students had exited., a deputy sheriff took the drug dog into C.M.’s classroom. The students were out of the room for approximately five minutes before they were allowed to return. The dog did not alert to any drugs during the search, and the students reentered the classroom. C.M. alleges that it felt as if his bag had been opened, but the zipper was still closed and he offered no proof of this assertion.

These searches took place at the request of Springfield Public Schools (SPS). In 2009,  SPS contacted the Greene County Sheriff’s Department to request random drug sweeps during the 2009-2010 school year. The policy under which this search occurred had been implemented to address a known drug problem.

The crux of the legal case was whether separating the student from his belongings constituted an unconstitutional seizure of his personal belongings. The Fourth Amendment protects the “right of the people to be secure in their personas, houses, papers, and effects, and against unreasonable searches and seizures.” Under the Fourth Amendment, a seizure of property must be reasonable, with reasonableness tested based on the context under which it occurred.

In order to determine whether SPS violated C.M.’s Fourth Amendment rights, the court “conducted a fact-specific balancing of the intrusion on the child’s Fourth Amendment rights against the promotion of legitimate government interests.” In ruling on this matter, the court appeared to leave unanswered whether separation from his belongings even constituted a seizure. In reaching its conclusion, the court stated,

Assuming that C.M.’s belongings were seized in this case when the school police officer directed that they be left in the classroom for approximately five minutes while the drug dog survey occurred, we conclude that the seizure was part of a reasonable procedure to maintain the safety and security of students at the school.

In a concurring opinion, one justice argued that this separation does not even rise to the level of a seizure. Stating that a seizure occurs when there is “some meaningful interference with an individual’s possessory interests in that property,” there must be some circumstances under which the interference is merely inconsequential. Given this interpretation, Judge Loken argued that no government seizure took place at all.

Regardless though, under the assumption that a seizure did in fact take place, the seizure here was not unreasonable. The court noted that k-12 public school students do not possess the same expectation of privacy as does the general public. Here, this brief separation from C.M.’s property was for the purpose of avoiding potential embarrassment to students, ensuring that students are not targeted by dogs, and decreasing the potential for potentially hazardous interaction between the police dogs and children.

The court also noted that C.M. freedoms were not “unreasonably curtailed” in that he did not possess full freedom of possession with his property even before the search. Students can be required to not touch their possessions, be required to leave them outside the room, or to leave it in a secured area for school activities.

The court also noted that the government possessed a legitimate interest in keeping drugs out of schools. SPS provided “substantial evidence” to show that there was an illegal drug issue within the district. SPS provided evidence to the court regarding the number of drug related incidents over the last 11 years. C.M. himself testified that he believed that there was and is a drug problem at his school.

The court also quickly dispensed with the parents’ argument that the search was unconstitutional because the seizure was not supported by individualized suspicion, noting that the Supreme Court has rejected the ideas “that all searches or seizures in a school must be supported by individualized suspicion.”

 

Calif. special education teachers sue their school district over workload

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As reported at appealdemorcrat.com, a group of four California teachers have sued the Yuba City Unified School District (YCUSD) over their high caseloads of special education students.

The teachers allege that their current assignments violate state law with regard to maximum caseloads for California’s Resource Specialist Program (RSP) teachers. At the heart of the issue is whether other at-risk students who are not in special education count in the teachers’ case loads. Yuba City is using a blended services model, and the outcome of this case could have impacts around the state.

According to the suit, YCUSD assigned the teachers to teach classes to groups of students containing both regular and special education children. In counting the teachers caseloads, which by law cannot exceed 28 students, the district decided that the non-special education children taught by these RSP teachers do not count as part of their case load. The four teachers also contend that assigning their services to both regular and special education students simultaneously is also a violation of state law.

According to the associatedemocrat article, the Superintendent, Nancy Aaberg, stated that many districts around California are looking for the best way to provide services to students on IEPs. In the past, special education students often were sent to special education classrooms to receive specialized educational services. More recently, districts are experimenting with having RSP enter classrooms in which RSP students sit side-by-side their typical peers and receive assistance within a regular education class.

In the legal filing, the teachers’ attorney states that she sent two letter to YCUSD and met with school officials to resolve the matter prior to filing the lawsuit.