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Fort Calhoun School Staff Legal Update 2012 Karen Haase Harding & Shultz (402) 434-3000 H & S School Law @KarenHaase

Legal Issues Today     

Cyber/bullying Locker Room Supervision Social Media Concussion Awareness Act First Amendment

Bullying? “any ongoing pattern of physical, verbal, or electronic abuse on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose by a school employee or his or her designee, or at school-sponsored activities or school-sponsored athletic events.�

Cyberbullying? Cyberbullying, v: the use of technology such as computers and cell phones to engage in repeated, and hostile behavior by an individual or group, that is intended to harm others. The term "cyberbullying" is used when the victim or bully is a child or teen. The term cyber harassment is used when the victim is an adult.

Not My Students!  Tell teacher: 27% of preteens and only 9% of teens  Tell friend: 44% of preteens and 72% of teens  Told no one: 16% of preteens and teens

Responding to Cyberbullying

Cyberbullying of Staff

J.S. v. Blue Mountain Sch. Dist. Middle School Student made fake MySpace profile for principal • Included photo from school website • Initially public; then limited • Students could only access off campus • Student suspended for 10 days; parents sued

Layshock v. Hermitage Sch. Dist High School Student made fake MySpace profile for principal • Included photo from school website • Other students created similar and more offensive profiles • Students only accessed off campus • Student suspended for 10 days; placed in alt. sch, banned from extracurriculars, no commencement

J.S. and Layshock Inconsistent  Third Circuit granted en banc rehearing  Oral Argument June 3, 2010  Decision issued June 13, 2011  The Bottom Line? • Schools lost both cases

What About the Staff? “We recognize that vulgar and offensive speech such as that employed in this case – even made in jest – could damage the careers of teachers and administrators and we conclude only that the punitive action taken by the school district violated the First Amendment free speech rights of JS.” • i.e. “We don’t care”

Key Legal Points re Staff Bulling  School can’t punish off-campus speech because it is vulgar, inappropriate or even criminal  School can only punish off-campus speech that is substantially disruptive  Harder to prove disruption when staff is target

Cyberbullying of Students

“Dating Violence”  Also called “relationship abuse”  Defined as a pattern of physically, sexually, verbally and/or emotionally abusive behavior in a dating relationship

T.K. v. NY Dept’t of Ed., (2011)  LD student bullied and cyberbullied by peers  Ct.: • No First Amendment protection for bullies • “…merely requires schools do what the Department of Education has told them to do for years.”

Heidenberg v. Hillel School  7th Grade student • Parents complained about prior assaults • Altercation because victim wouldn’t play football at recess  Sued for negligent supervision • Jury awarded $4 million • Court reduced to $600,000

Kowalski v. Berkeley Schs (2011)  Student created MySpace group harassing another student  Creator of the page received • 10-day suspension from school • 90-day “social suspension”  Ct.: speech caused substantial disruption, therefore discipline appropriate

Cyber/bullying Responses     

Keep “Responding and Reporting” separate in your mind (and your staff’s mind) Focus on Small Stuff DOCUMENT, DOCUMENT, DOCUMENT Look for nexus Don’t make promises you can’t keep

DT v. Somers Cent S.D. (2007)  Bullied student sued claiming school was deliberately indifferent  School’s responses • reprimanded bully • Sent bullies to hallway • Principal investigated • Principal kept eye on bullies in cafeteria

Yap v. Oceanside Union Free SD, (2004)  Bullied student sued claiming school was deliberately indifferent  School’s responses • Suspended bullies from bus • Pull out training with bullies • Training with entire class • Segregated lunch • Worked with victim

Vance v. Spencer Co SD (2000)  Bullied student sued claiming school was deliberately indifferent  School’s responses • Talked to students • Did not formally discipline • Did not contact law enforcement • Harassment increased after talking to bullies

Helping Kids Deal; Tell them to: 

Stop. Don’t respond to the bully.

Block. Block the cyberbully or limit all communications to those you can trust.

Tell. Tell a trusted adult.

Does Victim Need Interventions? 

Interventions • Social skill training • Hygiene training with, sped teacher, counselor or other staff • Peer mentor  Be ready for a 504 or SpEd request

Locker Room Supervision

Doe v. Rich Central H.S. (2012)  Boy complained of being bullied in locker room  Security camera caught staff talking  Boy assaulted  Case settled

Doe v. Clover H.S. (2012)  Three football players claimed they were hazed  13 players were suspended  The sheriff's office investigated  Bullies sued to be returned to school and team

Creekbaum v. Livingston Parish SD (2011)

 Three football players urinated on freshman’s locker  Victim sued claiming emotional distress and negligent supervision  Coach: never had a problem before


Concussion Awareness Act Neb. Rev. Stat. § 71-9101 to 71-9106  “…concussions are one of the “most commonly reported injuries in children and adolescents who participate in sports…”  “risk of catastrophic injury or death is significant when a concussion…is not properly evaluated and managed.”

CAA Requirements  Schools make available training approved by the chief medical officer  Approved Courses: • Heads UP Concussions in Youth Sports (Centers for Disease Control) • Concussion in Sports—What You Need to Know (NFHS) • ConcussionWise (Sports Safety International)

CAA Requirements  School provide concussion and brain injury information to students and their parents or guardians annually  Student must be removed from practice or game when coach or medico suspects student has sustained a concussion or brain injury

CAA Requirements  If concussion suspected, hold students out until  has been evaluated by a licensed health care professional  Has written clearance from licensed health care professional  Has written clearance from parents  If student is removed from activity, must provide specific notice to family

Concussion Litigation  Eveland v. San Marcos Unified School District (San Diego, CA 2012) • Claim against Ridell • Claim against School  Rouchleau v. Three Forks High School (Gallatin County, MT 2012)

The Bottom line:  BE CONCUSSION AWARE • In ALL sports • Focus on girls?  Nebraska Sports Concussion Network

Social Media/Technology

Graham v. Ambridge Area Sch.  David Costanza slept with student  Sued School  Ct. denied Summary Judgment; school could be sued  Ct. relied on fact that School knew teacher communicating via IM, email and texts, but didn’t follow up

Paul Withee  Posted nude pics to FB  Thought was private msg to girlfriend  Resigned

Bobby Petrino  Head coach at Arkansas  Inappropriate texts on school phone  Fired by AD

The Bottom Line

Prayer, FCA, etc.

Doe v. Duncanville Sch (1995)  School’s basketball coach initiated prayers before games and practices  Teams and coaches gathered at midcourt/mid-field for post-game prayer  Choir had “The Lord Bless You and Keep You” as theme song  Gideons distributed Bibles during school  Student singled out when she declined to participate

Doe v. Duncanville Sch (1995)  Plaintiff: Unconstitutional endorsement of religion  School • Can’t prevent employees from praying because would violate coach’s free exercise rights • Theme song not endorsement • Gideons not endorsement

Doe v. Duncanville Sch (1995) Ct: “[t]he challenged prayers take place during school-controlled, curriculumrelated activities that members of the basketball team are required to attend. During these activities . . . coaches and other school employees are present as representatives of the school and their actions are representative of [school] policies.�

Borden v. Sch. Dist., (2009)  School policy prohibited coaches from participating in student prayer  Coach sued  District Ct: nothing wrong with coach participating so long has he did not lead  Appellate Ct: no First Amend. right to pray in employee’s role as public employee  U.S. Supreme Court: denied cert

How to do it lawfully?  All of the activities must be student-led  Teacher-sponsor must be “nonparticipatory” • Can’t pray • Can’t organize • Can’t lead • Can’t answer questions about personal faith • Faculty monitor, facilitate, supervise

Fort Calhoun School Staff Legal Update 2012 Karen Haase Harding & Shultz (402) 434-3000 H & S School Law @KarenHaase

Fort Calhoun Inservice 2012-13  
Fort Calhoun Inservice 2012-13