School Law For ESU 11 Guidance Counselors

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School Law For

Guidance Counselors Karen Haase Harding & Shultz (402) 434-3000 434 3000 khaase@hslegalfirm.com H & S School Law @KarenHaase


Counselor Privilege • Legally Legally, there is no school counselor privilege • Bradley T T. vv. Cent. Cent Catholic High Sch., 264 Neb. 951 (2002)


Counselor’ss Notes Counselor • Confidential? – Yes – Can be disclosed if counselor believes in best interest of kid. kid

• Discoverable? – Yes


Access to Students at School


A.W. v. School District Lincoln kindergarten g student,, was sexually assaulted in a school restroom Mother sued, alleging negligence District court entered summary judgment for school – assault not foreseeable Supreme Court – remanded for further consideration id ti – foreseeability f bilit is i a matter tt of fact, not of law


A.W. -- Court Analysis y District Court dismissed case – the assault was nott foreseeable f bl Supreme Court remanded - foreseeability is a matter of fact, not law Elements of negligence case – Duty -- of reasonable care – Breach – Causation – Damages


Interviewing Students


Interviewing Students Greene v. Camreta Interview only = school policy Arrest custody, Arrest, custody warrant or subpoena = immediate access HHS ≠ parents Notice to Parents • Abuse/neglect yp parent • Criminal Activityy by • Delay = public safety risk


Interviewingg Students Section Sect o 79 79-294: 9 : Thee school sc oo iss required equ ed to contact parents when student is released to a peace officer “except except when a minor has been taken into custody as a victim of suspected child abuse. abuse.” Release Form


Who’s Your Daddy -Custody Disputes


Parental Access to Children FERPA: Non Non-custodial custodial parents have same rights as custodial P l v. Anchorage Pauley A h Sch. S h Di Dist., t 31 P.3d P 3d 1284 (Ala. 2001) Exceptions • Termination of p parental rights g • Supervised visitation • Schmidt S h idt v. D Des M Moines i


Parental Access to Children


Non-Custodial Parents and Special Education Rule 51 defines “parents” broadly: foster parents parents, in loco parentis Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147 ((7th Cir. 2001))


Custody Disputes:


Custody Disputes: Stay Out of it! • Refuse to offer opinions • Decline interviews with attorneys • Refuse service of subpoenas during school time • Consider motion to quash • Strictly observe FERPA


Custody Disputes: If you’re in it • Stick to your expertise – As an educator – Not a psychologist/social worker


Immigration Status


Reporting Abuse

Call the Abuse/Neglect Hotline at 1 800 652 1999 1-800-652-1999


Determining student residence


Rule 19 defines “residence” residence as: …that place in which a person is actually domiciled, which is one’s established home and the place to which one intends to return when absent therefrom therefrom. It is the place where a person is actually living full-time as opposed to vacationing full-time, or visiting.


Foster Children Default rule: no change in residence May attend different school IF “person person in charge charge” make a determination that it is not in the child’s hild’ best b t iinterest t t to t attend tt d th the same school as prior to the foster care placement. Neb. Rev. Stat. 79-215(9) , 43-1311 or 43-1312


Access to Students • By Private providers: we recommend against it • By Parents: – Bio Bi parents t have h absolute b l t right i ht to t kid – Not necessarilyy to stay y in classroom


Release of Information • FERPA: directory information • Non-NDE Agencies g


Cyberbullying? Cyberbullying, v: the use of technology such as computers and cell phones to engage in i repeated, t d and dh hostile til b behavior h i byy an individual or group, g p that is intended to harm others. The term "cyberbullying" 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.


Common Cyberbullying Tactics  Stealing someone someone’ss online name and using it to write nasty rumors, comment, or spread gossip. i  Alteringg someone’s message g or doctoring photographs to say something different or make fun of a person.


Common Cyberbullying Tactics ďƒ˜Secretly recording conversations using a cell phone, then playing the recording i back for f the person being i discussed. ďƒ˜Posting damaging information on blogs or web sites sites. ďƒ˜Creating or taking part in Internet polling or list-making


Cyberbullying y y g Example of cyberbullying b b ll i on iChat (Apple’s instant messaging) i )

Divagirl: Hey, loser, watch your back. t t323 What tmt323: Wh t r u talking about? Divagirl: Why don't you kill yourself while u r ahead? tmt323: Why can't you just leave me alone? Divagirl: Ugly girls like u need to be put in their place.


How Common is Cyberbullying? ďƒ˜ one in four students between the g of 11 and 19 have been the ages victim of cyberbullying. ďƒ˜ Approximately A i t l 65 percentt off kids kid know of someone who has been cyberbullied.


How Common is Cyberbullying?  18% of students in grades 6-8 said they had been cyberbullied at least once in the 2 months  6% said it happened 2 or more times  11% off students iin grades 6-8 6 8 said i y at least once in theyy had cyberbullied the last 2 months  2% said they had done it 2 or more times


So what’s what s the big deal?


Duty to Protect/ Practice or Policy < Stevenson v. Martin County Bd. of Ed (4th Cir. Ed. Cir 2001) < Yap v. Oceanside Union Free Sch. Dist., i (E.D. ( N.Y. 2004) < Anibal v. Greenwich Sch. Dist.,, (Conn. 2005) < Dorothy JJ. vv. Little Rock Sch Sch. Dist Dist., (8th Cir. 1993)


J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)  8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b  Principal p suspended p student who uploaded  Court: no disruption to school school, no nexus to education, no basis for punishment


Kowalski v. Berkeley Co. Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l p , therefore discipline p disruption, appropriate



Civil Consequences  Student and parents can be sued • Suing for money; no jail time • Homeowners insurance often pays • Judgments can result in hom e f foreclosure l and d other h h hardship d hi  Suit can be for: • Intentional I i l infliction i fli i off emotional i l distress • Tortuous interference • Slander


Finkel v. Facebook (N.Y.)  High school students created private Facebook page about classmate • Called her a “slut” slut • Said she had AIDs • Said S id she h used dd drugs

 She sued Facebook and kids who created page  Facebook F b k di dismissed i d ffrom llawsuit; it students initially left in the case


D.C. v. R.S. (Cal. 2010)  High school student posted on victim’s website • • •

I want to rip out your f-ing f ing heart and feed it to you. I' wanted I've t d to t kill you. If I ever see yyou I'm ggoing g to pound p your head in with an ice pick.

 Family sued; defendant said just a joke  Litigation allowed to continue


Fulmer v. Swidler (Pa. 2003)  Middle school student created Teacher Sux” website Sux • • •

Compared math teacher to Hitler Had picture of her decapitated Asked for contributions toward hit man

 Teacher sued  Jury awarded $500,000  Similar suit by principal settled



School Law For

Guidance Counselors Karen Haase Harding & Shultz (402) 434-3000 434 3000 khaase@hslegalfirm.com H & S School Law @KarenHaase