Connecticut Education Law Blog : Connecticut Education Lawyer & Attorney : Berchem, Moses & Devlin Law Firm : CT Public Schools

This month, the FCC released long awaited Children’s Internet Protection Act (CIPA) rule revisions. CIPA is a federal law enacted by Congress to address concerns about access to offensive, obscene or harmful content by minors over the Internet on school and library computers. In early 2001, the FCC issued rules implementing CIPA.  FCC recently released Order 11-125 containing rule revisions and clarifications; the most notable rule revision is the requirement that schools applying for E-rate discounts on anything more than telecommunications (such as telephone services) must adopt and enforce Internet Safety Policies that require the monitoring of the online activities of minors as well as the education of minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyber bullying. The FCC clarified that although a school’s Internet safety policy may include the development and use of educational materials, the policy itself does not have to include such materials. For CIPA purposes, a "minor" means "any individual who has not attained the age of 17 years." The new requirements are for FY 2012, the E-rate funding year beginning July 1, 2012. 

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The issue in Cox v. Warwick Valley Central School District stemmed from a student assignment to write an essay for English class. The teacher asked students to write about what they would do if they had 24 hours to live. While this sort of creative writing occurs every day in classrooms across the country, teachers sometimes get troubling responses. One student in this class, Raphael, wrote an essay called “Racing Time”, in which he described drinking, smoking, doing drugs and doing other illegal activities, and ended the essay with him taking cyanide and shooting himself in the head in front of his friends. After Principal John Kolesar removed the student from class and later called the Department of Children and Family Services (DCYS) because he felt the parents did not take the essay seriously enough, the parents sued, alleging retaliation against their son in violation of his First Amendment rights, and for deprivation of the parents’ substantive due process rights for calling DCYS.

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On August 2 we posted an article about a new law set to go into effect in Missouri prohibiting on-line communications between teachers and students that seemed to have some potentially problematic language in it. Late last week a Missouri judge issued an injunction preventing the new law from going into effect.  Apparently, the law was challenged by the Misouri State Teachers Association, arguing that the law would violate First Amendment protections afforded to teachers who communicate with students over social networking websites.  In the order, the judge noted that the lawsuit had a good likelihood of success, that social networking websites are used extensively by teachers, and the law seemed to over-reach where it interfered with communications between teachers and their own children who happen to be students.  This is not a final ruling in the case, so stay tuned.

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Here we go again. Only a few days after the 4th Circuit issued its decision Kowalski v. Berkley County Sch., the 8th Circuit has now become the latest court to recently weigh in on the issue of whether a school district’s discipline of off-campus online speech violates a student’s free speech rights under the First Amendment. As discussed in our recent post on July 28, 2011, there has been much activity in the Circuit Courts in the past few months regarding disciplining of students for their off-campus online speech. So, what did the 8th Circuit have to say on the issue?

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As school districts puzzle over what sort of rules and prohibitions should be included in board policies addressing teachers’ use of social networking sites, one state’s legislature has stepped into the breach. In Senate Bill 54, also known as the Amy Hestir Student Protection Act, Missouri effectively became the first state to ban exclusive communications between teachers and students on nonwork-related websites. 

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School districts in Connecticut looking for guidance on how to handle discipline of students engaging in provocative speech on-line at home have been watching with interest the outcome of two cases in the Third Circuit that seemed to reach conflicting results.  Both cases were re-heard by the Third Circuit Court of Appeals, sitting en banc, which recently ruled in favor of the student in both cases.  So, where does that leave us? 

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If you haven't already, be sure to get a copy of Substitute Bill 1138, Public Act 11-232, effective July 1, 2011, which makes sweeping changes to the State's anti-bullying statute applicable to public school districts.  The new law adds specific prohibitions against cyber-bullying, redefines "bullying" for purposes of the statute, and requires school districts to replace their 2009 school bullying "policy" with a "safe school climate plan" (to be approved by the school board and submitted to the Department of Education by January 1, 2012).  The safe school climate plan must include (beginning July 1, 2012) the appointment of a district "safe school climate coordinator" to oversee a "safe school climate specialist" at each school, who shall (beginning July 1, 2012) be the school principal or the principal's designee.  Also beginning July 1, 2012, each school principal must set up a safe school climate committee which shall include at least one parent or guardian of a student enrolled in the school.  The committee is responsible for reviewing completed bullying investigation reports and identifying and addressing patterns of bullying in the school, reviewing and amending school policies relating to bullying, making recommendations on school climate issues, and collaborating with the school climate coordinator regarding the collection of bullying data.  The parent representative should participate in all of this, except the first two items "or any other activity that may compromise the confidentiality of a student".

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This is one of those (rare) moments where, as a school lawyer, you think common sense has prevailed.  We shouldn't need a decision from a State hearing officer to tell us that once a parent has revoked consent for special education services, then the parent cannot come back and claim that the district has denied the child a Free Appropriate Public Education (FAPE).  And yet, we had a four-day hearing in February and March concerning that very issue, resulting in Final Decision and Order 11-0256, Student v. Newtown Board of Education.  The decision will be posted on the State Department of Education website, but until then, you can read a copy of it here.

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The next chapter in the continuing saga of Doninger v. Niehoff, et al. was decided and issued by the United States Court of Appeals for the Second Circuit on April 25, 2011.  You may recall reading about this case in 2008, when the Second Circuit upheld the decision of District Court Judge Mark Kravtiz denying the plaintiff student's motion for a preliminary injunction.  At that point, the student, Avery Doninger, was attempting to force the defendant school district to allow her to run for class office, even though she was being disciplined for her off-campus blog speech as conduct unbecoming a potential class officer. 

Following that decision, the defendant school officials moved for, and were granted, summary judgment on a variety of claims brought by the plaintiff student including a claim that they violated her First Amendment rights.  The case was certified to the Second Circuit on an interlocutory appeal to allow the plaintiff to appeal the dismissal of claims against the defendant school officials on grounds of qualified immunity.  The finding of the Second Circuit?  Essentially, First Amendment law is so confusing that even we judges have trouble sorting it out, and school officials should not be held personally liable under these circumstances when, arguably, a reasonable jury could find that they got it wrong.

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