Cyber-bullying can be protected speech

One morning in May 2008, an eighth-grader walked into her school counselor’s office at a Beverly Hills school crying. She was upset and humiliated and couldn’t possibly go to class, the girl told the counselor. The night before, a classmate had posted a video on YouTube with a group of other eighth-graders bad-mouthing her, calling her “spoiled,” a “brat” and a “slut.” Text and instant messages had been flying since.

This incident, according to a story in the Los Angeles Times, is all too familiar to school officials throughout the country. It’s referred to as cyber-bullying, and it highlights the much-debated problem of identifying and limiting the authority that a school has over the online expression of its students. A murky trail of legal cases and decisions have left school officials wondering what to do. But in several cases, the courts have told schools to back off because cyber-bullying, while it may be offensive, constitutes protected speech.

In the Beverly Hills incident, disciplinary action was taken by the school district resulting in the suspension of the girl responsible for posting the offensive video online. The suspended student took the case to federal court, saying her free speech rights were violated.

A United States District judge in Los Angeles sided with the student, saying the school went too far. In a 60 page opinion, Judge Steven V. Wilson wrote:

To allow the school to cast this wide a net and suspend a student simply because another student takes offense to their speech, without any evidence that such speech caused a substantial disruption of the school’s activities, runs afoul (of the law). . . .  The court cannot uphold school discipline of student speech simply because young persons are unpredictable or immature, or because, in general, teenagers are emotionally fragile and may often fight over hurtful comments.

To view the full opinion, click here.

The United States Supreme Court has not yet weighed in on the First Amendment issues at play. But lower courts throughout the country have tackled the issue and protected the speech. In Pennsylvania, a student sued his school district after he was suspended for 10 days and placed in an alternative education program for creating what he claimed was a parody MySpace profile of the school principal. On the Web site, the student referred to the principal as a “big steroid freak,” and a “big whore,” among other things, and stated that he was “too drunk to remember” the date of his birthday.

District Court Judge Terrence McVerry found that even though the profile was unquestionably “lewd, profane and sexually inappropriate,” the school did not have the right to restrict the student’s speech because school officials were not able to establish that the profile caused enough of a disruption on campus. “The mere fact that the Internet may be accessed at school does not authorize school officials to become censors of the world-wide web,” he wrote. That case is pending in the U.S. 3rd Circuit Court of Appeals. To read the lower court opinion, click here.

Administrators barred a Connecticut high school student from running in a student election after the student criticized administrators online for their handling of a student festival. You can read more about this case by clicking here.

In Florida, the ACLU sued a principal on behalf of a student who was suspended and removed from her honors class for “cyber-bullying.” Katie Evans had created a Facebook page criticizing an English teacher as “the worst teacher I’ve ever met,” and invited others to express their “feelings of hatred.” Click here for information on that case.

Closer to home, five Miscoe Hill School (Mendon, MA) students were suspended after officials pegged them as participants in a Facebook group devoted to slapping a school official. You can read the full report from the Milford Daily News by clicking here.

An in-depth article from the Boston College Law Review analyzes recent cases on the issue and argues that courts should apply a “control and supervision” test, derived from the analysis used in negligent supervision cases and Title IX cases for student-on-student sexual harassment, to determine whether a school has the authority to discipline a student for his or her online speech.

While we have not been directly confronted with the issue in Franklin, we did have some policy discussions several months ago concerning the use of social media in the school setting. Our resulting policy attempted to balance the First Amendment with the need to provide a safe environment for students. We also recognized that these are evolving issues, and that we should endeavor to teach students to properly use resources, including online tools. Those policies reflect the spirit of the words of Supreme Court Justice John Paul Stevens in New Jersey v. T.L.O., 469 U.S. 325, 385−86 (1985): “The schoolroom is the first opportunity most citizens have to experience the power of government. Through it passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life.”

Stay tuned as there will certainly be updates as the law continues to evolve in this area.

Testing the limits of pledging allegiance

Pledging allegiance to the flag may seem like a simple act, but it is not immune from controversy or constitutional inquiry. The limits on school systems have been tested over the years, and there have been some recent court decisions on the issue.

Before looking at the decisions, it is important to note that the Pledge of Allegiance, as a ceremonial activity, promotes both civic awareness and patriotism. The Pledge represents an opportunity to reflect on the fact that, although we are a diverse people, we share a national identity as citizens who are committed to the promise of liberty and justice for all. With that being said, we need to be cognizant of the rights of those who may not wish to participate in this ceremony.

A federal district court in New Hampshire has ruled that the state’s statute requiring the recitation of the Pledge of Allegiance in schools does not violate the U.S. Constitution’s Establishment or Free Exercise of Religion Clauses. You can view the full decision by clicking here. It also rejected claims that the state’s pledge law violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In addition, it summarily dismissed the claim that the pledge law was void as against public policy on the ground of failure to state a claim upon which relief could be granted. Lastly, the district court dismissed all state law claims without prejudice, allowing them to be refiled in state court.

In that case, the parents of three public school students objected to their children being subjected to recitation of the Pledge of Allegiance in school. Specifically, the parents, who identify themselves and their children as atheist or agnostic, contended the pledge offended their and their children’s rights under the First Amendment of the U.S. Constitution’s Establishment and Free Exercise of Religion Clauses because of the inclusion of the phrase “under God” in the pledge. They also raised Fourteenth Amendment due process and equal protection claims, along with the claim that the pledge law was void as against public policy. In the aftermath of September 11 attacks, the state legislature passed the New Hampshire Patriot Act, which provided for the daily recitation of the pledge in the state’s schools. The statute made student participation voluntary by providing an opt-out clause. While conceding that the children were not compelled to recite the pledge, the parents sought assurances from the principals at their children’s schools that the pledge would not be recited in their children’s classes. However, no such assurances were given.

After briefly discussing the various approaches federal courts have taken to addressing the constitutionality of recitation of the pledge in school, the district court applied the three-prong Establishment Clause test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). Regarding the secular purpose prong, it concluded that both the express purpose of the New Hampshire statute (continuing “the policy of teaching [the] country’s history to the elementary and secondary pupils of [the] state”) and the legislative history of the statute demonstrated a secular purpose. It pointed out that the record of the legislative discussions made clear that the law was enacted for patriotic, not religious, reasons. It also noted that the fact that when the pledge recitation law was revised by the legislature it was separated from the provision allowing recitation of the “Lord’s prayer” in schools, further supported the view the law had a secular purpose. Turning to the primary effect prong, the district court stressed that the government may not coerce an individual to support or participate in religion or its exercise. However, it found no coercive effect was present under New Hampshire’s law.

In 2008, The U.S. Court of Appeals for the Eleventh Circuit (AL, FL, GA) in Frazier v. Winn struck down a Florida state law that it found requires all students to stand at attention during the Pledge of Allegiance, even those excused from reciting the Pledge. However, the court upheld the law’s requirement that a student obtain parental permission to be excused from participating. You can view the Frazier decision by clicking here.

For a look at more cases under the religion clause of the first amendment, click here.

Supreme Court will only clarify school rules

Don’t look to the Supreme Court to set school rules, only to clarify them when officials have abdicated that responsibility, Chief Justice John Roberts said Saturday according to an AP report (you can view the full report by clicking here).

At a judicial conference, Roberts was asked how school administrators should interpret seemingly conflicting messages from the Court in two recent decisions, including one last week that said Arizona officials conducted an unconstitutional strip-search of a teenage girl. You can view our blog post on that decision by clicking here. In 2007, the justices sided with an Alaska high school principal, ruling that administrators could restrict student speech if it appears to advocate illegal drug use. You can view our blog post on that decision by clicking here. The court’s full decision in the free speech case can be viewed by clicking here.

According to the AP report, Roberts told the audience there was no conflict in the court’s rulings, just clarity intended to deal with narrow issues that surface from government actions. “You can’t expect to get a whole list of regulations from the Supreme Court. That would be bad,” Roberts said. “We wouldn’t do a good job at it.”

You can be the judge of the clarity that emerges from these decisions. From my perspective, the 8-1 decision in the strip search case provided reasonable clarity and was a sound decision based on constitutional principles. The 2007 free speech case, on the other hand, was far less clear and was somewhat disturbing in terms of the curbs on free speech that were articulated. The First Amendment says quite clearly that “Congress shall make no law… abridging the freedom of speech, or of the press….” (emphasis supplied). But the Court’s 2007 decision says that you can have some laws abridging speech when that speech is reasonably viewed as promoting illegal drug use.

BMI indexing in schools is yet another unfunded mandate

Earlier this week, the Massachusetts Public Health Council, a creature of the state which lacks any “administrative or executive functions” announced a new set of unfunded mandates for local school districts. Beginning with the next school year, school districts will be “required” to calculate student heights and weights into a Body Mass Index measuring their overall proportions. The results must be sent home to parents for students in first, fourth, seventh and 10th grades in a package explaining what they mean and how parents can best combat obesity. The new regulations will be phased into schools over the next 18 months. The full text of these regulations can be viewed by clicking here.

The newly-enacted regulations are part of the Mass In Motion anti-obesity initiative announced earlier this year by the Patrick Administration, but no funding to support the program is offered to aid local districts in implementing these measures.

Schools are already required to have students examined under G.L. c. 71, § 57 to determine “defects in sight or hearing, postural and other physical defects tending to prevent his receiving the full benefit of his school work, or requiring a modification of the same in order to prevent injury to the child or to secure the best education results, and to ascertain defects of the feet which might unfavorably influence the child’s health or physical efficiency, or both, during childhood, adolescence and adult years.” But, according to the Council, the purpose of the new regulations is to provide parents with important information on the health status of their child, and to help parents work with health care providers on ways to promote healthier eating and exercise habits for children.

While the goals of the mandate are laudable, there are a number of issues surrounding the implementation of these measures:

• The Council lacks authority over local school committees. By statute (G.L. c. 111, § 3), the Council “shall make and promulgate rules and regulations, take evidence in appeals, consider plans and appointments required by law, hold hearings, and discharge other duties required by law; but it shall have no administrative or executive functions.” This lack of administrative or executive functions calls into question the Council’s ability to tell local school committees what to do. Moreover, the proposed mandates appear to conflict with G.L. c. 71. § 37, which provides that School Committees shall have the power “to establish educational goals and policies for the schools in the district, consistent with the requirements of law and state-wide goals and standards established by the Board of Education.” (emphasis supplied). The Council rules and regulations are not established by the Board of Education and appear to go beyond what is set forth in G.L. c. 71, § 57.
• The proposed regulations will violate students’ rights to privacy, will be embarrassing to children, and represent just one more parental responsibility being laid in the lap of public education.
• The proposed regulations lack funding to implement the program and address the underlying problem of obesity. To make the regulations work districts will need to establish a system (computer software or otherwise) to calculate BMI, and to write and store letters to parents. Then each district will need to pay for printing the letters, the interpretive material, and the postage. For a district like Franklin with over 6,200 students, those are sizable expenses which will take away from other educational needs at a time when budgets are already strained. And once the problem is identified schools lack the resources to do anything about it.
• The regulations duplicate the efforts of pediatric visits. Indeed, the American Academy of Pediatrics has issued a policy statement strongly encouraging pediatricians “to incorporate assessment and anticipatory guidance about diet, weight, and physical activity into routine clinical practice…” And this would include BMI screening in a non-judgmental manner. And since Massachusetts already requires everyone to have health insurance, students can be screened by their own doctors in the privacy of the clinical setting.
• The regulations do not provide means for addressing the problem of obesity. In communities throughout Massachusetts, budget cuts have led to the reduction and/or elimination of health and physical education programs. Thus, it is no surprise that we have an obesity problem. For something truly productive, the Council should provide funds so that the schools can offer more health and PE classes.

For those reasons, I will not support the implementation of this unfunded mandate in Franklin, and I will urge my colleagues across the state to do the same in their districts. We should allow our schools to focus on their education mission and leave this delicate health matter to physicians and families.

For the Boston Globe story on BMI indexing, click here. For the NECN report and video, click here. For more information and a comprehensive list of other unfunded mandates imposed on local school committees, click here.

Case tests how far schools can go with drug searches

A case involving the search of a 13-year-old will require the Supreme Court to consider how far school officials can go to enforce zero-tolerance drug policies. The New York Times reported on the case as follows:

Savana Redding still remembers the clothes she had on — black stretch pants with butterfly patches and a pink T-shirt — the day school officials here forced her to strip six years ago. She was 13 and in eighth grade.

Savana Redding, 19, was strip searched six years ago when teachers suspected she had brought prescription pills to school.

An assistant principal, enforcing the school’s antidrug policies, suspected her of having brought prescription-strength ibuprofen pills to school. One of the pills is as strong as two Advils.

The search by two female school employees was methodical and humiliating, Ms. Redding said. After she had stripped to her underwear, “they asked me to pull out my bra and move it from side to side,” she said. “They made me open my legs and pull out my underwear.”

Ms. Redding, an honors student, had no pills. But she had a furious mother and a lawyer, and now her case has reached the Supreme Court, which will hear arguments on April 21.

Ms. Redding was successful in her pursuit of this case in the lower courts, but her case got off to a rocky start. In 2007, a divided three judge panel from the U.S. Court of Appeals for the Ninth Circuit upheld a motion for summary judgment on behalf of school officials in Redding v. Safford Unified School District #1, while noting that the student did not freely agree to this search. She was “embarrassed and scared, but felt [she] would be in more trouble if [she] did not do what they asked.” In her affidavit, Savana described the experience as the most humiliating experience’ of her short life, and felt “violated by the strip search.”

The student and her mother requested the full Ninth Circuit Court of Appeals to hear their case. In a 6-5 en banc decision, the full Court reversed the earlier panel and found:

On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen year-old honor student Savana Redding. We conclude that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither ‘justified at its inception,’ New Jersey v. T.L.O., 469 U.S. 325, 341 (1985), nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, ‘reasonably related in scope to the circumstances’ giving rise to its initiation. Id.

The opinion writer Judge Kim McLane Wardlaw went on to say: “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights. More than that, it is a violation of any known principle of human dignity.”

Safford United School District appealed to the U.S. Supreme Court, arguing that the Ninth Circuit created a new rule that requires public school officials to have more evidence of illegal possession of drugs or weapons at school than an unproven tip from another student.

The questions presented in the case are:

1. Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy; and

2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U.S.C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.

This will be an interesting case to watch and should provide guidance to school districts in setting policy. Fighting drug abuse is a laudable goal, but we must be careful not to infringe upon the constitutional rights of individuals in the process. This case demonstrates how humiliating it can be when a school district crosses the line.

To view the petition filed with the United States Supreme Court, click here. To view the brief filed by the National School Boards Association, click here. To view the brief filed by the Safford United School District, click here. To view the brief of the United States of America, click here.

US Supreme Court to hear school drug search case

The United States Supreme Court will review whether a strip search for prescription-strength Ibuprofen violated a 13-year-old student’s constitutional rights. The issue before the court is whether the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.

Last year, the federal appeals court in San Francisco ruled 8-3 in favor of Savana Redding, who was subjected to a strip search based on a classmate’s uncorroborated accusation that she was hiding the pills. The court split 6-5 in favor of allowing her to sue the school official who ordered the search.

Redding was an eighth-grade student at the Safford Middle School in Safford, Ariz., when she was ordered to the school nurse’s office and told to strip to her underwear, move her bra to the side and pull her underwear out, exposing her breasts and pelvic area. No pills were found.

The 9th U.S. Circuit Court of Appeals called Redding’s ordeal “a grossly intrusive search of a middle-school girl to locate pills with the potency of two over-the-counter Advil capsules.” The United States Supreme Court will get its chance to weigh in on this issue after it hears oral arguments in April.

To view the petition filed with the United States Supreme Court, click here. To view the brief filed by the National School Boards Association, click here. To view the Boston Globe report on the case, click here.

Readiness report issued by state commission

On New Year’s eve, the Readiness Finance Commission presented a report to Governor Deval Patrick outlining an alleged combination of cost savings, school district restructuring, education reform strategies and potential new investments to help achieve the Governor’s Readiness Project. As you may recall, in June of 2008, Governor Patrick assembled the Readiness Finance Commission and charged it with presenting a variety of alternative means to achieve sustainable education funding for current needs and the sequenced investments necessary for a ten-year Readiness Project implementation plan.

The plan as presented by the Commission can be viewed by clicking here. A list and links to all of the other Readiness Project reports issued to date can be viewed by clicking here.

The goals and intent of the project are lofty, but some of the conclusions must be met with skepticism. The finance report focuses first on cost savings, presenting strategies for reducing employee health insurance and retiree benefit costs, maximizing Federal reimbursements to offset special education costs and promoting greater efficiency through regionalization and procurement and energy reform. Recognizing that cost savings and efficiencies alone will not be sufficient for full implementation of the Readiness Project reform strategies, many Commission members acknowledged that new investment would be required to fund current and future education reforms. In this context, many Commission members called for a balanced, multi-pronged approach requiring cost-cutting and efficiency strategies along with educational reform and revenue measures.

Initial reports on the Commission’s declarations point out that the assumptions of cost savings are noble but overstated. Also, as Glenn Koocher, the Executive Director of the Massachusetts Association of School Committees, noted: “It reflects a real lack of knowledge about what it’s like to be in a community that supports its schools and the real lack of respect for parent empowerment and civic engagement that is the Achilles Heel of national education reformers.”

With regard to supposed enhanced revenues, it is important to point out that on the day before this report was issued, the Governor announced that he was preparing for up to $1 billion in additional mid-year budget cuts, raising the specter of possible reductions in local aid to municipalities and additional layoffs of state employees. This left many of us wondering how these expensive and well-intentioned projects can be pursued in the context of these other budget cutting measures.

We all support the notion that we must provide a public education system that more fully educates all students. Indeed, we have been working at this for many years. The problem is that we have educational theoreticians who produce reports, issue unfunded mandates, and forget that they are not elected lawmakers. Those of us who deal regularly with the real people they seek to control know that there are difficult tasks ahead, but we need collaboration and resources rather than dictates.

We must remember that all the policy recommendations outlined in the Readiness reports are just words on paper until the real policy makers – the state legislature – takes it all up anew. Until then, these reports will remain as untested theories, leaving those of us who are in the trenches to figure out how to manage our educational systems at the local level in the face of further budget cutting proclamations.

Residency decision upheld by court

In November, the Franklin Schools denied admission to a student who lived in Wrentham, but a portion of the property was in Franklin. Relying on residency policies as outlined in Massachusetts law, the Franklin School department could not admit the student because his dwelling was not within the town. The decision gathered much media attention, both newspaper and television.

The family sought legal assistance and challenged Franklin’s decision in Norfolk Superior Court. After hearing all of the evidence, the court sided with Franklin and upheld the decision to deny admission to the Franklin school system. The court decision (which is a matter of public record) is set out below. It provides a good overview of Massachusetts law and the residency requirements for students.

View this document on Scribd

Parents cannot sue over NCLB compliance

A federal appeals court ruled that parents cannot sue school districts to force them to comply with the No Child Left Behind Act. The ruling came in a case filed against the low-performing Newark Public Schools in New Jersey. The 3rd U.S. Circuit Court of Appeals said “enforcement of the act is up to state educational agencies.”

The parents claimed that, in contravention of the Act, they were never notified (or received insufficient notification) of (1) the fact that their children were enrolled in deficient schools, (2) their right to transfer from failing schools to non-failing schools, (3) their right to request supplemental educational services under the Act and to receive certain information about providers of such services, and (4) their right to request information about the professional qualifications of the teachers instructing their children.

The court noted that Congress enacted the Act “to ensure that all children have a fair, equal, and significant opportunity to obtain a high-quality education and reach, at a minimum, proficiency on challenging State academic achievement standards and state academic assessments.” But, it ruled that the Act does not confer a right of action enforceable by individuals or individual providers of supplemental educational services. In the decision, the court reasoned that while the reference to “all children” could ostensibly be read as a proclamation that each and every child shall have certain rights, Congress did not refer to the individual rights of each and every child.

Click here to view a copy of the court’s 26 page decision.

School calendar survey on line

The School Committee has received a flurry of e-mails expressing interest in changing the current School calendar. In response, we have informed residents that the School Committee will not be reviewing or acting upon the calendar until the spring. We have urged community members to check the agendas which are posted online (you can see them by clicking here) at so that you’ll know when this comes up. The calendar typically comes up as an action item and we have a discussion before taking voting. We have urged community members to participate in that discussion so that their feelings may be communicated to the entire committee.

In addition, the Superintendent of Schools is conducting a survey on the issue. You can take the survey by clicking here. In his message, he noted that building the school calendar is always an adventure. Trying to balance the competing needs of parents, students and school professionals while trying to honor various religious, state and federal holidays, is guaranteed to create some controversy. When you add the inevitable problem of school cancellations due to inclement weather and the mandatory 180-day student attendance requirement, it is inevitable that we will not be able to satisfy everyone’s needs.

It has been quite some time since the school department has collected any data from parents on our school calendar. So, we are asking for your input about some of our most common calendar issues. The Superintendent will use the results of the survey to inform his decision-making as he prepares a 2010-2011 school calendar to present to the School Committee for its approval.

This survey is for parents (sorry kids and teachers). Please complete it just once. The survey link will be open until November 24, 2008 at noon.

While we are on this topic, here is a summary of the rules and regulations regarding observance of religious holidays that the School Committee must consider in establishing the calendar:

State and federal laws require schools to make reasonable accommodation to the religious needs of students and employees in observance of holy days. Massachusetts General Laws Chapter 151B, section 4 (1)(A) addresses this issue with respect to employees. With respect to students, Massachusetts General Laws Chapter 151C, section 2B reads in relevant part as follows:

Any student in an educational or vocational training institution…who is unable, because of his religious beliefs, to attend classes or to participate in any examination, study or work requirement on a particular day shall be excused from any such examination or study or work requirement, and shall be provided with an opportunity to make up such examination, study or work requirement which he may have missed because of such absence on any particular day; provided, however, that such makeup examination or work shall not create an unreasonable burden upon such school. No fees of any kind shall be charged by the institution for making available to the said student such opportunity. No adverse or prejudicial effects shall result to any student because of his availing himself of the provisions of this section.

Schools may meet their obligation to accommodate students by excusing individual absences for religious observance, or by adjusting the school calendar to provide a school year of at least 180 school days, while taking into account possible days of low attendance due to religious holidays.

Defining supplement not supplant

Franklin’s proposed policy on donations of non-budgeted funds (policy KCD) is the subject of two prior posts (#1 and #2).  In this post, we address the supplement not supplant langauage.

The proposed policy would encourage and welcome future giving, but only to the extent that the donations supplement rather than supplant – take the place of — the operational budget. The “supplement not supplant” language mirrors federal education laws which dictate that school districts may use federal funds only to supplement and, to the extent practical, increase the level of funds that would, in the absence of the federal funds, be made available from non-Federal sources for the education of participating students.

On the local level, under the proposed policy, once the School Committee has set its budget for operations based on available public funding sources, it would not accept donations targeted to preserve particular academic programs or operations. For instance, if the budget allocations provided by the town, state, and federal governments forced the School Committee to eliminate a foreign language offering at any level, among other programmatic cuts, donations from private sources to reinstate that program would not be accepted. That is, the School Committee would not permit a practice where advocates for particular disciplines can go out and raise money, while other disciplines which are no less worthy don’t get supported because they don’t have wealthy benefactors.

The School Committee has, and will continue to, accept donations for supplemental services such as field trips, cameras, Smart Boards, and other services, items or supplies that are not tied to the core academic responsibilities of the district. These are things that supplement, rather than supplant, the budget.

For further reading on this topic, I urge you to consider the following:

The National Association for the Education of Young Children defines the phrase “supplement not supplant” as follows:

A requirement in law that a grant recipient may not use those grant funds to replace other sources of funding. For example, the statute may state that federal funds may not supplant any local, state or private education funding sources. The NAEYC glossary of financial terms can be viewed by clicking here.

Tennessee published a “supplement/supplant” definition which can be viewed by clicking here. The definition from that document states:

Under the Federal “supplement not supplant” requirement, the Tennessee Department of Education and Tennessee LEAs may use Federal funds only to supplement and, to the extent practical, increase the level of funds that would, in the absence of the Federal funds, be made available from non-Federal sources for the education of participating students. In no case may a school district use Federal program funds to supplant—take the place of—funds from non-Federal sources.

Supplement not supplant provisions generally operate the same way for all programs. Supplanting is presumed to occur in the following instances:

• The local educational agency or school district uses Federal funds to provide services that it is required to make available under other Federal, State or local law.
• The agency or school district uses Federal funds to provide services that it provided with non-Federal funds in the immediate prior years.
• The agency or school district uses Title I funds to provide services for eligible childrenthat it provides with non-Federal funds for other children. The law does permit agencies or districts to exclude State and local funds expended for any school that operates as a schoolwide program school under section 1114, and for any school or school attendance area as part of a State or local program that is very similar to Title I (comparable program provision).

The Federal government requirements for “supplement not supplant” are set out here.

Continuing the dialog on policy KCD

In the continuing debate over the proposed policy on the donation of non-budgeted funds, I thought it would be helpful to provide you with additional resources on the topic. We have assembled a list of articles which discuss the topic, which, at best, can be described as a delicate balancing act. You can get an index of these articles and other documents of interest by clicking here. This is a continuing discussion from the original blog post on the proposed policy which can be viewed by clicking here.

In the article entitled The New Fundraising from the American School Board Journal, the author discusses school foundations, private fundraising, and whether they are compromising equity or saving public schools.

In the article entitled Gathering Storm from the American School Board Journal, the author highlights the soaring costs in school budgets nationwide, driven by increases in fixed costs such as health insurance, pensions, and new regulations. Not to be missed in this discussion is the Massachusetts Department of Education’s (DOE) recent report on fiscal conditions for schools which can be viewed by clicking here. In that report, the DOE noted that:

Over the past decade and a half, the Commonwealth has moved steadily to increase expectations on school districts, schools, teachers, and students to meet the demands of a global economy. It has also added fiscal resources to support reaching these expectations, increasing state aid for education by almost 11 percent per year throughout the 1990s. Recent fiscal challenges at the state level, however, coupled by rising fixed costs and shifting enrollment patterns for districts, have combined to create substantial challenges for districts in sustaining the momentum of education reform.

In the article entitled A Balancing Act from the American School Board Journal, the author discusses how school districts can find the right balance between corporate support and commercial infringement when dealing with the issue of advertising in schools.

Finally, we have included some articles from the Lakeshore Weekly News and Boston Globe which address the issues at stake. In the article entitled Public Schools, Private Donations, the author warns that:

The success of public schools should not rely on private donations. Class divisions already exist in public schools. Communities that cannot rely on parents’ personal income to subsidize their students should not be punished for it. To further stratify success is to go down a road that will rot the public school system.

In an article entitled What Taxes Don’t Cover, the author discusses private fundraising in Massachusetts’ schools, and offers the following:

But some education specialists say public schools’ increasing reliance on private donations dilutes efforts to increase school funding and widens the gap between schools in wealthy and poor communities. Arnold Fege , director of public engagement and advocacy for the Washington, D.C.-based Public Education Network, which tracks private fund-raising efforts for public schools, said budget pressures brought on by the advent of high-stakes testing under the federal No Child Left Behind law has pushed parent groups and education foundations to intensify their fund-raising.

“It’s a surrogate form of tax revenue that creates huge equity problems,” he said. “Schools become a charity rather than a public service,” he said.

You can read another Boston Globe report by clicking here. Also, the New York Times did a report on deep pocketed partners for public schools which can be viewed by clicking here. PTO Today magazine published an article on the topic, raising questions about the equity of private donations. It can be viewed by clicking here.

All of this brings me back to the bottom line purpose of the proposed policy, which is to encourage supplementation of school budgets, but discourage funds to supplant the operations decisions. This type of policy is particularly important in tough fiscal times. In cash-strapped school systems around the state, it is common for parents to raise money for extracurricular activities, equipment, and extra supplies. But when the fundraising turns to an academic, rather than extracurricular, program, many public school educators feel the line has been crossed as to what is acceptable. Without a policy such as this, advocates for particular disciplines can go out and raise money, while other disciplines which are no less worthy don’t get supported because they don’t have wealthy benefactors.

Citizen rights to speak at government meetings

In the past few weeks, there has been talk about restrictions placed on citizen participation on local meetings of government bodies (Town Council, School Committee, etc.). This provides a good opportunity to review the rights and rules surrounding participation in public meetings.

The School Committee values public participation and input from the community on issues related to the education of our children.  Our policy on public participation in meetings can be viewed by clicking here.  In addition, we have a policy directed to community involvement in decisionmaking which can be viewed by clicking here.  Finally, we have a policy on public complaints which can be viewed by clicking here.

Aside from School Committee policy, the Massachusetts Open Meeting Law states that all meetings of a governmental body shall be open to the public and any person shall be permitted to attend any meeting except as otherwise provided by this section. However, the law further states that “[n]o person shall address a public meeting of a governmental body without permission of the presiding officer at such meeting, and all persons shall, at the request of such presiding officer, be silent.” G.L. c. 39, § 23C. In other words, the Open Meeting Law provides no general right for a member of the public to address a governmental body.

A recent case from the United States Appeals Court for the First Circuit in Boston — known as Curnin v. Town of Egremont — considered the issue of a citizen’s right to speak at a meeting of a government body. In that case, the plaintiffs sued defendants, the town, its town meeting moderator, and the town’s selectmen, contending that their First Amendment rights had been violated because they were not allowed to speak at the town meetings called per G.L. c. 39, § 9. The Curnins first argued that Egremont’s town meeting qualifies as a designated public forum for two reasons. First, they argue that Egremont’s town meetings must be public forums because they are open to the public, take place on government property, and involve important matters of public interest. Second, they argue by analogy that other courts have held that municipal-level public meetings are designated public forums and therefore town meetings are as well. They further argue that even if the town meeting is not considered a designated public forum but only a limited public forum, Egremont’s policy cannot satisfy the corresponding level of scrutiny.

The Curnins made a second and separate series of First Amendment arguments under the rubric of viewpoint-related discrimination. They asserted that the categorical preclusion of those who are not town meeting members from the right to speak is a form of viewpoint discrimination. They also argued that Egremont’s policy of letting non-voters speak only at the discretion of the moderator is unconstitutional. They further argued that this discretion raises the prospect of possible viewpoint discrimination by the moderator in his decision to recognize certain people and not others.

In ruling against the plaintiffs, the court ruled that the First Amendment did not give non-legislators the right to speak at meetings of deliberating legislative bodies, regardless of whether they owned property or paid taxes. Moreover, the court of appeals rejected the plaintiffs’ argument that the town engaged in viewpoint discrimination and that the First Amendment was violated by the discretion vested in the town meeting moderator to recognize speakers, including individuals who were not members of the town meeting.

In so ruling, the court cited language from the United States Supreme Court that noted:

The Constitution does not grant to members of the public generally a right to be heard by public bodies making decisions of policy. . . . Policymaking organs in our system of government have never operated under a constitutional constraint requiring them to afford every interested member of the public an opportunity to present testimony before any policy is adopted. . . . Public officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear. To recognize a constitutional right to participate directly in government policymaking would work a revolution in existing government practices.

Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271, 283-84, 104 S. Ct. 1058, 79 L. Ed. 2d 299 (1984). In Knight, the Court rejected First Amendment claims by plaintiffs that they had a right to force officers of the state, acting in an official capacity, to listen to them in a particular formal setting. Id. at 283.

The Franklin School Committee often invites public comment on issues on agenda items, and if not on the agenda, during citizen’s comments. The basic structure of our meetings is described here. However, those comments are subject to some legal constraints which are addressed in the discretion of the Chairman in the role of the moderator. The moderator is charged with facilitating an efficient and orderly meeting. As the Massachusetts Supreme Judicial Court put it: “A moderator must make judgments on the spot. He must deal with disputants without the protective formality of a judicial proceeding, and he must contend with voters who are not necessarily experienced in the law or conversant with town meeting procedures.” MacKeen v. Town of Canton, 379 Mass. 514, 399 N.E.2d 22, 24 (Mass. 1980).

Most importantly, comments at meetings must not address matters that interfere with employee rights, or which are matters for executive session. Personnel matters related to reputation, discipline, character, or complaints against an employee are normally closed, although the employee may insist they be open. G.L. c. 39, § 23B(2). Dismissal proceedings are also normally closed, although the employee may insist they be open. G.L. c. 3 9, § 23B(2). Bartell v. Wellesley Housing Authority, 28 Mass. App. Ct. 306, 550 N.E.2d 883 (1990).

If citizens wish to comment on matters related to reputation, discipline, character, or complaints against an employee(s), those are normally closed to the public, and the speaker would be found out of order and asked to remain silent.

That, in a nutshell, covers the rights and responsibilities surrounding citizen participation in government meetings. Please share any comments you may have by posting below. I have included some links to other cases from around the country on this topic that may be of interest to you:

• Piscottano v. Town of Somers, 396 F. Supp. 2d 187, 193-94 (D. Conn. 2005) (resident concerned about town official’s behavior prevented from speaking during public comment portion of Board of Selectmen meeting);
• Mesa v. White, 197 F.3d 1041, 1043 (10th Cir. 1999) (former county commissioner prevented from speaking during public comment period of county commission meeting);
• Scroggins v. City of Topeka, 2 F. Supp. 2d 1362, 1365-66 (D. Kan. 1998) (resident cut off while attempting to criticize mayoral appointment during public comment portion of city council meeting).

Proposed policy on non-budgeted funds

At the January 22, 2008 School Committee meeting, the proposed policy on Donation of Non-Budgeted Funds (File KCD) was discussed in a first reading. The policy amends the current file KCD entitled Public Gifts – Donations to the School. It has been under review by the Policy Subcommittee over the past year. The Milford Daily News report on this discussion can be viewed by clicking here. There is a discussion of the topic taking place on Towncommon.net which can be viewed by clicking here.

The policy came under close examination following the gift of $27,000 from the Brick School Association in FY07 to finance the operating costs for the Brick School. The acceptance of that gift raised questions about the role of private entities in funding public education. The School Committee agreed to accept the gift in the spring of 2007, with the understanding that it would consider and deliberate on the policy implications of private funding for future budgets. The proposed revisions to KCD are a step in that direction. In designing the policy, the Committee is looking to ensure equity, consistency, and compliance with law in the acceptance and disbursement of donated funds.

This type of policy is particularly important in tough fiscal times. In cash-strapped school systems around the state, it is common for parents to raise money for extracurricular activities, equipment, and extra supplies. But when the fundraising turns to an academic, rather than extracurricular, program, many public school educators feel the line has been crossed as to what is acceptable. Without a policy such as this, advocates for particular disciplines can go out and raise money, while other disciplines which are no less worthy don’t get supported because they don’t have wealthy benefactors.

Franklin’s proposed policy would encourage and welcome future giving, but only to the extent that the donations supplement rather than supplant – take the place of — the operational budget. The “supplement not supplant” language mirrors federal education laws which dictate that school districts may use federal funds only to supplement and, to the extent practical, increase the level of funds that would, in the absence of the federal funds, be made available from non-Federal sources for the education of participating students.

These types of policies came into focus several years ago when the Town of Wellesley rejected $380,000 in private funds to save its Spanish immersion program after a failed override attempt. You can read the Boston Globe report by clicking here. The New York Times did a report on deep pocketed partners for public schools which can be viewed by clicking here. PTO Today magazine published an article on the topic, raising questions about the equity of private donations. It can be viewed by clicking here. These policies also came into play recently in Northbridge and Winchester. Northbridge’s efforts can be reviewed by clicking here. You can view information on Winchester’s Promise fund by clicking here.

The policy is scheduled for a second reading and discussion at the February 12, 2008 School Committee meeting.

School Committee policies on-line

Several years ago, the School Committee talked of the prospect of getting its 3 inch thick policy manual online so that citizens in the community could have easy access to this information. At the beginning, technological limitations prevented an easy transition from paper to Web. With the easing of technology restrictions, budget constraints got in the way. Quotes from professional agencies came in too high and made the project cost prohibitive.

Enter Tri-County Regional Vocational Technical High School in Franklin, Massachusetts. School Committee member Cora Armenio happens work there under a federal grant that resides at the school. She checked with the powers that be at Tri-County, advised them of our plight, and received an offer from the Computer Information Services (CIS) class there to take on the task.

On Wednesday, June 4, 2007, the students at the school presented the fruits of their labor. For two months, Kim Zogalis’ ninth-grade CIS class at Tri-County converted Microsoft Word documents into Web-ready versions, created links to state laws and worked with computer programming languages such as JavaScript to make the “e-Manual” searchable.  You can view the on-line manual by clicking here.

The project was a win-win for the School Committee and the Tri-County school. The students gained real-world experience and community service credits, while the Town of Franklin saved thousands of dollars and gained unfettered access to the policies and procedures in effect in the Franklin schools.

Heartfelt thanks go out to the students and staff at Tri-County. We appreciate the opportunity to have engaged in this partnership, and hope to have the opportunity to work with them again.

The Milford Daily News did a story on the e-Manual project which can be viewed by clicking here.

Free speech tested at Alaska high school

The United States Supreme Court will rule on the free speech rights of public school students by July. The controversy arises out of a prank which tests the limits of free speech in America’s high schools. Not since Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), has the Court had occasion to provide guidance to public schools — and to parents and students — with respect to the delicate balance between students’ constitutional rights, on the one hand, and the solemn duty of school administrators, on the other, to maintain order and instill fundamental values in the challenging context of public education.

On a snowy, January afternoon five years ago when the Olympic Torch Relay was passing through Juneau, Alaska on its way to the 2002 Salt Lake City Winter Games, a high school student, Joseph Frederick, had a plan to get his 15 minutes of fame. The event had attracted a fair amount of press coverage and television crews were out in full force filming the energetic crowd. Frederick and his friends, knowing there would be cameras there, had planned a prank to cause a stir.

That afternoon, Frederick showed up across the street from the school and stood with his friends who were waiting to see the Olympic torch. When television cameras panned by the group, Frederick unfurled a banner that read “Bong Hits 4 Jesus.” JDHS principal, Deborah Morse, quickly crossed the street and ordered Frederick to take down the banner. He refused and she took the banner away and informed Frederick that he would be suspended for 10 days.

Frederick appealed his suspension to the superintendent of the school district. Appeals court documents said that Frederick claimed that the banner had been “designed to be meaningless and funny in order to get on television.” However, the superintendent upheld the punishment, stating that the sign conflicted with the mission of the school and had created a disruption. Frederick appealed to the school board, but on March 19, 2002, the board upheld the punishment.

On April 25, 2002, Frederick filed a lawsuit against Morse and the school board in U.S. District Court for the District of Alaska claiming that his First Amendment right to free speech had been violated. His case also emphasized the fact that he was off school property and thus not subject to school rules. The federal court ruled in favor of the school district finding that it had acted within its rights when it disciplined Frederick for violating the school’s policy on offensive material.

Frederick appealed the case and on March 10, 2006, the 9th U.S. Circuit Court of Appeals reversed the decision of the lower court. The panel of three judges ruled that the school had violated Frederick’s free speech rights by “censor[ing] non-disruptive, off-campus speech.” They also ruled that Morse was not immune from incurring damages in the case.

The case was appealed to the United States Supreme Court, and the arguments were made on March 19, 2007, with a decision expected by July. The issues before the court were:

1. Whether the First Amendment allows public schools to prohibit students from displaying messages promoting the use of illegal substances at school-sponsored, faculty-supervised events.
2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public high school principal was liable in a damages lawsuit under 42 U.S.C. § 1983 when, pursuant to the school district’s policy against displaying messages promoting illegal substances, she disciplined a student for displaying a large banner with a slang marijuana reference at a school-sponsored, faculty-supervised event.

“I thought we wanted our schools to teach something, including something besides just basic elements, including the character formation and not to use drugs,” Chief Justice Roberts said Monday during the argument.

Justice Samuel Alito, who wrote several opinions in favor of student speech rights while a federal appeals court judge, seemed more concerned by the administration’s broad argument in favor of schools than did his fellow conservatives. “I find that a very, a very disturbing argument,” Alito told Justice Department lawyer Edwin Kneedler, “because schools have … defined their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students, under the banner of getting rid of speech that’s inconsistent with educational missions.”

Justice Stephen Breyer, in the court’s liberal wing, said he was troubled a ruling in favor of Frederick, even if he was making a joke, would make it harder to principals to run their schools. “We’ll suddenly see people testing limits all over the place in the high schools,” Breyer said. On the other hand, he said, a decision favorable to the schools “may really limit people’s rights on free speech. That’s what I’m struggling with.”

The National School Board Association (NSBA) filed an amicus brief submitted in support of the school district, which argued that the student’s speech was nonpolitical and properly regulated within the U.S. Supreme Court trilogy of student speech cases. The school district’s response to the ruling, posted on its website criticizes the decision for leaving school administrators with no clear guidance on various issues and, especially, for the court’s “disturbing… determination that Principal Morse is not entitled to qualified immunity from an award of damages.” Noting that the U.S. District Court had concluded that Ms. Morse “was not only entitled to discipline Frederick for his display of the banner, but that she may have been obligated to do so,” the statement says, “we don’t understand how the Ninth Circuit could conclude that a high school principal should have known that it wasn’t.”

The American Civil Liberties Union (ACLU) has a full page of reference materials on the case, including copies of all of the briefs filed. The Juneau, Alaska school district’s web-site also contains updated information on the case.

Lawsuit against Lexington schools dismissed

A federal judge in Massachusetts threw out a lawsuit filed by Lexington parents who objected to discussions of gay couples in their children’s classrooms.

The case and issues which arose highlight some of the sensitive issues that school committees face.

U.S. District Judge Mark Wolf said federal courts have decided in other cases that the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach them. Wolf said those earlier rulings also have held that teachings that contradict a parent’s religious beliefs do not violate their First Amendment right to exercise their religion.

In his decision, the judge stated:

In essence, under the Constitution public schools are entitled to teach anything that is reasonably related to the goals of preparing students to become engaged and productive citizens in our democracy. Diversity is a hallmark of our nation. It is increasingly evident that our diversity includes differences in sexual orientation. Our nation’s history includes a fundamental commitment to promoting mutual respect among citizens in our diverse nation that is manifest in the First Amendment’s prohibitions on establishing an official religion and restricting the free exercise of religious beliefs on which plaintiffs base some of their federal claims. Our history also includes instances of individual and official discrimination against gays and lesbians, among others. It is reasonable for public educators to teach elementary school students about individuals with different sexual orientations and about various forms of families, including those with same-sex parents, in an effort to eradicate the effects of past discrimination, to reduce the risk of future discrimination and, in the process, to reaffirm our nation’s constitutional commitment to promoting mutual respect among members of our diverse society. In addition, it is reasonable for those educators to find that teaching young children to understand and respect differences in sexual orientation will contribute to an academic environment in which students who are gay, lesbian, or the children of same-sex parents will be comfortable and, therefore, better able to learn.

The facts underlying the case involve parents who sued after their 5-year-old son brought home a book from kindergarten that depicted a gay family. Another Lexington couple joined the suit after a second-grade teacher read to the class a fairy tale that tells the story of two princes falling in love. Both couples claimed Lexington school officials violated their parental rights to teach their own morals to their children. They said they did not want to dictate curriculum but wanted to be told ahead of time when gay couples were being discussed so they could remove their young children from classrooms.

You may recall that this case involved a father who was arrested for trespassing as reported in the Boston Globe. He went to the school to object to the book and met with school officials. The meeting ended with the father’s arrest after he refused to leave the school.

Massachusetts law prohibits discrimination in public schools based on sex or sexual orientation. It also requires that public school curricula encourage respect for all individuals regardless of, among other things, sexual orientation. Pursuant to these directives, the Massachusetts Department of Education has issued standards which encourage instruction for pre-kindergarten through fifth grade students concerning different types of people and families.

The families assert that the defendants’ conduct violates their rights under the United States Constitution to raise their children and to the free exercise of their religion. They also contend that the defendants have violated the laws of the Commonwealth of Massachusetts, including the statute that requires that parents be given notice and an opportunity to exempt their children from any curriculum that “primarily involves human sexual education or human sexuality issues.” M.G.L. c. 71, § 32A.

For a copy of the full decision, click here.

Extended field trip policy on January 9 agenda

The School Committee will be discussing the extended field trip policy at the January 9, 2007 meeting. Since the extended field trip policy was put into effect in 2005, the School Committee has received much feedback on the policy as it relates to school sponsorship of private trips. Currently, the policy does not support sponsorship of these trips. In some of the feedback, we were told that such a policy might hinder future trips, which we felt may adversely affect students who may wish to participate. The policy subcommittee has met with a number of people in the school system to address these concerns. In December, they reported to the full committee that they needed some direction on how a sponsorship provision in the policy would be received.

Accordingly, they have asked the full committee to discuss this aspect at the next meeting to provide some guidance. We are seeking community input on this aspect of the policy and would appreciate hearing from you. You can do so by attending and speaking at the January 9 meeting. If you are unable to attend, but would like to provide input, please do so via e-mail, telephone, or letter. You can get contact info for the School Committee by clicking here.

We look forward to hearing from you.

DPH summary report issued on salmonella

The Massachusetts Department of Public Health (MDPH) has issued an Executive Summary of its report on the salmonella outbreak at Jefferson Elementary School last spring. You may read the report by clicking here.

The state found that oul pellets were the likely cause, but school staff “had no indication that the owl pellets might be unsafe (and) all proper handling procedures were followed by teachers during this project based on the information provided.”

The outbreak in Franklin has led to new DPH guidelines on the “safe handling of owl pellets,” which have been posted on the agency’s web site. Click here to see the report.

In addition, Assistant Superintendent, Maureen Sabolinski and Director of Pupil Personnel Services, Linda Waters will now convene a committee of principals, teachers, school nurses and parents to review the MDPH’s Executive Summary and all Franklin public practices related to student illness, communicable diseases, school emergencies of a medical nature, and science experiments that use any biological materials. This committee will recommend any changes in school practices or School Committee Policy that it deems appropriate.

MPDH advisory on mosquito-borne diseases

A message from Superintendent of Schools Wayne R. Ogden:

After a conversation with the Massachusetts Department of Public Health (MDPH), we would like to reinforce their safety recommendations with respect to the risk of mosquito-borne diseases. We encourage all parents to employ the personal protection procedures recommended by MDPH in their Public Health Advisory. Their personal protection procedures include:

· Wearing long sleeves, long pants and socks when outdoors at dusk.

· Apply mosquito repellents containing DEET, Picaridin, or Permethrin.

For additional information, go to the MDPH Advisory: “Recreational Activities and the Risk of Mosquito- Borne Diseases”