11-3-2009 Indiana:
INDIANAPOLIS — Two sophomore girls have sued their school district after they were punished for posting sexually suggestive photos on MySpace during their summer vacation.
The American Civil Liberties Union, in a federal lawsuit filed last week on behalf of the girls, argues that Churubusco High School violated the girls' free speech rights when it banned them from extracurricular activities for a joke that didn't involve the school. They say the district humiliated the girls by requiring them to apologize to an all-male coaches' board and undergo counseling.
Some child advocates argue that schools should play a role in monitoring students' behavior, especially when dealing with minors. And the U.S. Supreme Court has ruled that students can be disciplined for activities that happen outside of school, so long as the school can prove the activities were disruptive or posed a danger and that it was foreseeable the activities would find their way to campus.
But some legal experts say that in this digital era, schools must accept that students will engage in some questionable behavior in cyberspace and during off hours.
"From the standpoint of young people, there's no real distinction between online life and offline life," said John Palfrey, a Harvard University law professor and co-director of the Berkman Center for Internet and Society. "It's just life."
In the Indiana case, the ACLU argues that the district and Churubusco Principal Austin Couch went too far in banning the two sophomores from fall sports, requiring them to apologize to the all-male coaches' board and undergo counseling after the photographs were circulated at school.
The lawsuit, filed in U.S. District Court in Fort Wayne, names Couch, the high school and the district as defendants and seeks unspecified damages. No hearing has been scheduled.
Erik Weber, an attorney for the Smith-Green school district, said Couch was enforcing the northeast Indiana school's athletic code, which allows the principal to bar from school activities any student-athlete whose behavior in or out of school "creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."
Martha McCarthy, who teaches educational law and policy at Indiana University, said courts have upheld such policies, but that the issue could come to a head as advances in technology bring more out-of-school behavior issues to light.
"I think the Supreme Court's going to have to address this," she said.
ACLU legal director Ken Falk insists the Churubusco case doesn't warrant the punishment the district handed out.
"We all did things when we were sophomores in high school that can be construed as immature or problematic or whatever, but that is not the issue here," he said. "The issue is what possible impact this could have on the school environment, and the answer is none."
The girls, identified only by their initials in the suit, took the photos during a sleepover with friends before school started this summer and posted them on their MySpace pages, setting the privacy controls so only those designated as friends could view them. In the photos, the girls wore lingerie and pretended to lick a penis-shaped lollipop. None of the photos made any reference to the school.
Weber declined to say how the photos reached Couch, but the suit contends that someone copied the pictures and shared them with school officials, and they eventually were given to the principal.
Couch initially suspended both girls from all extracurricular activities for the year but reduced the penalty to 25 percent of fall semester activities after the girls completed three counseling sessions and apologized to the coaches board.
Palfrey, the Harvard professor, said privacy on social networking sites is an illusion, even if strict privacy controls are set.
Teens who have done similar things in some states have faced prosecution, said Beverly Johnson, an Irvine, Calif., attorney who serves on the board of Web Wise Kids, a nonprofit, online safety group. A 14-year-old New Jersey girl was arrested on child pornography charges in March for posting nude pictures of herself on MySpace. The charges were later dropped after she agreed to counseling.
Other students have been expelled from school or lost scholarships, Johnson said.
The ACLU argues that the Indiana case is different. They say the photos were a joke intended to be shared only with friends. It wants the school district to expunge all references to the incident from school records and seeks to bar the school from taking similar action in the future.
"The problem is there's a line drawn. And the line is drawn as things that disrupt the school. And outside of that, the school has no say," Falk said.
"Imagine if everything teens texted back and forth to friends became fodder for school discipline."
Palfrey, of Harvard, said schools have a right to regulate students' online behavior but said the court will have to decide whether the students' First Amendment rights were violated.
"The fact that it took place in cyberspace instead of in a classroom doesn't mean you don't enforce the rule," he said. ..Source.. by Charles Wilson
November 3, 2009
IN- Teens Sue School Over Punishment For Racy MySpace Pics
May 20, 2008
NY- Judge Lets Stand Nine-Month Suspension for Giving 'Noogies'
Somehow I think the suspension was too long (9 months) for the acts claimed. There seems to be more and more school related cases in the news lately. This one was unusual which is why I posted it.
5-20-2008 New York:
A New York state judge will not disturb a decision by a school superintendent to suspend a student for giving a teacher "noogies" on two occasions when she allegedly asked him to stop.
In Mirenberg v. Lynbrook Union Free School District, 1873/08, Supreme Court Justice Thomas P. Phelan of Nassau County ruled that 14-year-old Ethan Mirenberg had not exhausted the administrative avenues available to him for challenging a nine-month suspension levied by Superintendent Phillip Cicero.
"The court is not inclined to substitute its judgment for the Education Department," Phelan wrote in denying a motion to stay Ethan's suspension, expunge all records of the incident and allow him to return to Lynbrook High School.
On Dec. 5, 2007, Ethan, represented by counsel, appeared for a school disciplinary hearing on charges he "forcibly pressed his knuckles against [the] scalp" of a teacher on two occasions and violated the academic code of conduct by entering his former middle school without permission.
Terence E. Smolev, a partner in the Mineola, N.Y., firm of Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, presided over the hearing.
According to Phelan's decision, on Nov. 2, 2007, during a school-sponsored basketball game, Ethan approached his former teacher, Sharon Cantante and "forcibly pressed his knuckles against her scalp, grinding them into her scalp and causing her pain."
In court documents, Cantante testified that she told Ethan to stop but did not inform any other staff member or call police. She also testified that Ethan only had one hand on her scalp and did not prevent her from moving away from his grasp. However, she alleged that he "continued to follow [her] as she attempted to move away from him and continued to forcibly press his knuckles against her scalp."
When asked why she had not reported the incident, Cantante replied that she "felt that [Ethan] had learned his lesson."
The ninth-grader also was charged with entering the South Middle School on Nov. 7, 2007, "without permission of the building administrator," a violation of the district code of conduct. During that visit, he allegedly entered Cantante's classroom, "forcibly grabbed her around the neck, holding her tightly and simultaneously ground his knuckles into her scalp, causing her pain."
This time, according to the decision, the principal was called.
Ethan testified at the hearing that he was a 5-foot-4-inch, 155-pound athlete who competed in several sports including lacrosse and wrestling. Cantante testified that she is 4 foot 11 inches and weighs approximately 115 pounds.
Ethan's description of the events differed from Cantante's. He testified that he had "lightly patted [Cantante] on her head in a playful way" at the school basketball game, and had "gently patted her on the head" in her classroom.
Further testimony revealed prior disciplinary issues during Ethan's seventh- and eighth-grade years, as well as his receiving counseling with a social worker during most of eighth grade.
Upon conclusion of the hearing, Smolev found Ethan guilty of all charges and stated that he would "recommend to the Superintendent that this student be suspended from school to and including November 7th, 2009 ... and that he be permitted to come back to school in his 11th grade."
Ultimately, Cicero determined that a suspension through Sept. 2 of this year would be appropriate. The school board upheld the decision, noting that its ruling could be appealed to the state education commissioner.
That appeal would be futile, said Mark L. Lubelsky, whose Manhattan firm represented Ethan until recently.
"By the time you get a decision [on the appeal], the suspension has already been served," Lubelsky said in an interview. "What was done to this kid was unfair."
Smolev, argued Lubelsky, was a "biased" decision maker who had already made up his mind prior to the hearing. Lubelsky pointed to the transcript of the hearing as evidence of what he described as confrontational questioning by Smolev.
According to court documents, Smolev read Ethan his Miranda rights and "forced a waiver of those rights." During the hearing, according to the transcript, Smolev asked Ethan "How many lies have you told me?" and stated, "I already know you are a liar, correct?"
In another exchange, when Ethan asked to be explained the meaning of the word "fathom," Smolev replied: "In 8th grade you got anywhere from 91 to 99 in English and you don't know what the word 'fathom' is?"
Lubelsky argued that Ethan's constitutional due process rights were violated by a "biased decision maker."
Justice Phelan disagreed.
"As submitted by respondents, Ethan was afforded due process having been given adequate notice of the charges against him and having been represented by counsel at the hearing," wrote the judge.
The judge declined to find that there was a predetermination of guilt by Smolev, noting that the record was reviewed by the school superintendent who issued the modified suspension.
"Although the Superintendent acknowledged that the 'teacher's and the student's version of the events are diametrically opposed,' he found 'no motivation for the teacher to fabricate the two separate incidents' and concurred with the Hearing Officer that the 'student's story [w]as simply not credible,'" wrote Phelan.
Smolev declined to comment on the decision.
Florence Frazer of Garden City, N.Y.-based Ehrlich, Frazer & Feldman represented the school district. Frazer said a notice of appeal on the decision has been filed.
Ethan is now enrolled in another school district. ..more.. by Vesselin Mitev, New York Law Journal
