In a recent case in New York, a pro se parent (“Parent”) argued that her child’s school district is legally obligated to reheat her diabetic child’s homemade lunch meal. Parent sued under 504, the Americans with Disabilities Act (“ADA”), the Individuals with Disabilities in Education Act (“IDEA”), and other “statutes” and “regulations” that purportedly form a basis upon which to seek relief (see p. 2 and footnote 1, 2). Parent seemed to try to test the limits of a school district’s obligations under 504 and ADA. Ultimately, the court determined that the school district’s refusal to reheat homemade lunches did not violate 504 or the ADA.

The facts of the case are somewhat confusing. For reasons of brevity, let’s review the pertinent,
undisputed facts of the case and focus on why the court held that the school’s failure to reheat J.M.’s homemade lunches did not violate 504 or ADA.

In 2007, J.M. was diagnosed with Type 1 Diabetes Mellitus when he was 11 years old. On the advice of J.M.’s nutritionist, Parent made homemade lunches for J.M. to take to school. “This was to enable the parent and J.M.’s doctors to monitor his diet–specifically his caloric/carbohydrate intake–at least until J.M. became more accustomed to his ‘new situation.’” (see p. 6). Apparently, there were menu choices available to students with diabetes (see p. 6-7), but J.M. did not like the lunches provided at the school (see p. 31).

When Parent asked whether J.M. could heat his homemade lunch in a microwave, a school staff member agreed to warm up J.M.’s food using the microwave in the teacher’s lounge (see p. 7). For reasons that aren’t clear, however, J.M.’s food was not microwaved on a regular basis; as a result, J.M. did not always eat his lunches. It is not clear whether J.M. was afraid or too self-conscious to ask a staff member to microwave his lunches. It is not even clear if J.M. did not always eat his lunches solely because it was not heated up.

In any event, Parent became concerned about J.M.’s health and access to a microwave. Parent expressed concerns to a number of people, including school personnel and J.M.’s pediatrician, regarding J.M.’s glucose levels and not eating his lunches.

J.M.’s pediatrician signed a Glucose form and a request for a 504 accommodation, which contained very general statements and the importance that staff supervise J.M. to ensure that he “ingests adequate amount[s] of food to prevent hypoglycemia.” Significantly, when J.M.’s pediatrician signed a request form for 504 accommodations, it did not contain an “order or [a] request to heat J.M.’s lunch” (see p.9).

The school superintendent was concerned about “potential liability” associated with microwaving
the lunch meals (see p.10). The superintendent discussed alternative options with the parent, such as “training [the] student to make appropriate menu choices” (see p. 10). When Parent insisted that the school reheat J.M.’s homemade lunches, school personnel repeatedly denied the request (see p. 10).

Parent subsequently filed a petition for a due process hearing, ultimately seeking that the school provide J.M. a microwave so that he can heat up his homemade lunches (see p. 12). The hearing officer appeared sympathetic to the parent, but found against the parent (see p.13). Parent appealed to the State Review Officer and the matter was dismissed for lack of Subject Matter Jurisdiction to review Section 504 claims (see p. 14). Parent then filed a complaint in federal court seeking injunctive relief and damages.

The federal court determined that “Although diabetics must monitor their food intake, there is no medical necessity for them to consume hot food” (see p. 7). The court also determined that since J.M. was diagnosed with diabetes 5 years prior to the federal litigation, and since Parent argued that reheating homemade lunches would only be needed “until such time that [J.M.] was able to adjust to the dietary demands of his newly diagnosed condition,” the request for an injunctive relief was moot (see p. 22).

Parent also argued that the school’s failure to accommodate J.M. to reheat his homemade food and supervise J.M. food intake was discrimination under 504 and ADA. The court disagreed (see p. 27-30). In fact, the court held that the “request to heat up J.M.’s homemade food represents the archetype of a preferential, as opposed to a necessary, accommodation” (see p.30). As for supervising J.M.’s food intake, this, too “represents a preferential, as opposed to a necessary, accommodation” (see p. 32).

The court was unable to evidence of any discrimination (see p. 35). Since school staff had been monitoring J.M.’s glucose levels during lunch for years by this point (see p. 33-35), and since there was no evidence or proof that reheating lunches were medically necessary, summary judgment to the defendants was appropriate.

This case is rather remarkable because it seems to me that if the school had simply provided a microwave in the cafeteria so that students could heat up their own homemade lunches, the school district (and the taxpayers) could have saved an enormous amount of money. Alternatively, Parent could have purchased the microwave and donated it to the school cafeteria. Microwaves can be purchased for less than $100 these days. This litigation probably cost the taxpayers tens of thousands of dollars. Was it worth it? On the other hand, the school district and its attorneys may have been concerned with slippery slope — today, a microwave; tomorrow, a blender. That’s certainly what they might have been thinking. And there are certainly dangers associated with the use of kitchen appliances, especially among young children.

© 2012, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Diabetes, Microwaves, and 504 originally appeared on Matthew Stoloff's Blog on January 30, 2012.

Layshock v. Hermitage School District

In 2005, Justin Layshock, a high school senior at the time, was at his grandmother’s house and created a fake MySpace profile of his principal. The fake profile described the principal as a person who smoked a “big blunt,” was a “big steroid freak,” had stolen a “big keg,” had been drunk a “big number of times,” and had shoplifted “a big bag from Kmart.” (Notice how many times the word “big” comes up.)

Justin intended that the profile to be a parody of his school principal, but the principal was not amused. The school suspended Justin for violating the school’s discipline code, which included “Disruption of the normal school process,” “Disrespect,” “Harassment of a School Administrator,” “Gross Misbehavior,” and using “Obscene, vulgar, and profane language.” Consequently, the school district suspended Justin for 10 days.

In 2007, a federal judge ruled that the school’s suspension was unconstitutional. The school district appealed; and in 2010, a three-judge panel of the Third Circuit of the Appeals ruled that the school district violated Justin’s First Amendment free speech rights. In its June 13, 2011, opinion, the Third Circuit held en banc that it would be a “dangerous precedent” if the state would permitted to “reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school-sponsored activities.” The Court further held:

“We do not think that the First Amendment can tolerate the school district stretching its authority into Justin’s grandmother’s home and reaching Justin while he is sitting at her computer after school in order to punish him for the expressive conduct that he engaged in there.”

J.S. v. Blue Mountain School District

In 2007, a middle school student created a fake MySpace profile of her principal at home using her parent’s computer. The MySpace profile contained a photograph of the principal, but the principal’s name or school was not mentioned. The profile suggested that the principal had such interest as “being a tight ass,” “spending time with my child (who looks like a gorilla),” and “hitting on students and their parents.” The fake profile also described the principal as being a “hairy, expressionless sex addict,” among other things. The student asserted that the fake profile was a parody.

To make a long story short, the school disciplined J.S., and J.S. filed suit, alleging among other things that the school violated J.S.’s First Amendment free speech rights. The case made its rounds in the federal courts. Then, on June 13, 2011, the Third Circuit issued an opinion en banc, holding that the “profile was so outrageous that no one could have taken it seriously, and no one did.” Because the parody “caused no substantial disruption in school and [it] could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.”

Brief Comments

In both of these cases, the court determined that students’ internet activities did not rise to the level of “substantial disruption.” But what if it did? In a concurring opinion, the J.S. court opined on that question for a moment, and even suggested an example:

Suppose a high school student, while at home after school hours, were to write a blog entry defending gay marriage. Suppose further that several of the student‘s classmates got wind of the entry, took issue with it, and caused a significant disturbance at school. While the school could clearly punish the students who acted disruptively, if Tinker were held to apply to off-campus speech, the school could also punish the student whose blog entry brought about the disruption. That cannot be, nor is it, the law.

But this is most likely dictum. Whether Tinker definitively applies to off-campus speech is a question for another day.

To read what other bloggers have commented about these two cases, see here, there, and especially over yonder.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Student Rights in the Internet Era originally appeared on Matthew Stoloff's Blog on June 20, 2011.

The answer to the question, “What are my rights?” cannot be given until the parent has provided sufficient background about the child (age, grade, disability), the child’s current placement (general education, resource, self-contained), the level of services currently being provided to the child (speech therapy, occupational therapy, physical therapy, etc.).

In addition, a special education attorney needs to know if there is an IEP currently in place; how long the child has been classified; and when the child was last evaluated. It does not even end there. Sometimes, attorneys need to know if the child’s placement or services has ever been litigated.

Without knowing the basics, the question “What are my rights” cannot be answered. It is like sealing a leak without the necessary tools. When a client gives a detailed background about what has happened (the tools), it is much easier for a lawyer to explain what rights the client has.

A parent of a classified child has many rights: They have a right to request an IEP meeting. They have a right to request an independent evaluation. They have a right to file a petition for a due process hearing. They have a right to request reimbursement for attorney’s fees and costs if they are a prevailing party. These are but a handful of rights (there are plenty more). That is why it is important to answer each and every question the attorney asks you, so that the attorney can figure out what your rights are right now.

So, when you call or email an attorney for the first time about a legal issue, you can reasonably expect to answer many questions before your lawyer will give you the answer that you’re looking for.

© 2011, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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What Are My Rights? originally appeared on Matthew Stoloff's Blog on March 29, 2011.

Litigation is very expensive. Enacting new legislation that imposes stringent requirements on schools can still cost a chunk of taxpayer money and enormous administrative headaches. Just because the state government passes a new law does not mean that all will end well. In fact, litigation and new legislation may cause new problems and unintended consequences that many did not predict.

In my view, school districts at large haven’t quite figured out how to develop or implement effective anti-cyberbullying programs. Many schools typically show anti-bullying videos and have infrequent class discussions about the dangers of cyberbullying. Occasionally, a special guest will give a presentation. The problem is that this is not terribly effective–it doesn’t stick.

When I was in high school, I remember attending school assemblies where safety videos were screened at the auditorium. I don’t think that many students paid much attention to those videos. We just talked amongst ourselves, passed notes, or took a nap until the lights came back on. I don’t think much has changed over the years. Schools and various TV ads spend too much time teaching students to say “No” or “Think Before You Click.” How much of it really sticks?

Much more is needed than simple 30 second sound bytes.

For an anti-cyberbullying program to be effective, students must be active participants in the classroom. An effective anti-cyberbullying program is one in which students develop an excellent understanding of First Amendment issues and can engage in ethical (or philosophical) debates about free speech. Moreover, an effective anti-cyberbullying program teaches students can clearly define “parody,” “satire,” and “hate speech.”

Children as young as 10 or 12 should be able to clearly define and distinguish “parody” from “hate speech.” A student in junior high is smart enough to understand basic free speech issues and should be able to engage in ethical debates about their right to free speech. High school students can continue expanding their knowledge of free speech issues in History, English, or Social Studies classes. Lawyers who practice First Amendment should be invited to give presentations on a regular basis. State and federal judges may also be willing to talk to students.

If this sounds impossible or unrealistic, it shouldn’t be. One need not be a lawyer to define “hate speech”; one need not attend law school to read case summaries or debate First Amendment issues. There are books about cyberbullying and First Amendment issues that cater to youngsters. One interesting book written by a judge for junior and high school students is Teen Cyberbullying Investigated. You can read a sample chapter here to get an idea of what it looks like.

Finally, schools should offer students the opportunity to exercise their knowledge of First Amendment issues and show their creativity to combat cyberbullying in innovative ways. For example, students can compete with other schools and form teams to debate free speech and cyberbullying. Or perhaps create a Facebook page or website about cyberbullying. Or make a film and post it on YouTube. The possibilities are endless–and these things will have a lot more impact than watching 30 second ads screened at school auditoriums.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Developing Effective Anti-Bullying Programs originally appeared on Matthew Stoloff's Blog on December 8, 2010.

The first decade of 2000 has seen numerous (and challenging) cases involving students who blog and post messages about their classmates, teachers, and principals. With the popularity of MySpace, YouTube, and Facebook, youngsters are using these mediums to express not only their creativity (parodies of their principals) but also to vent in public (denigrating teachers and classmates). Let’s take a quick look at some well known cases involving students who have used the internet to publicly criticize their peers or parody a school employee.

In 2002, Ghyslain Raza, a high school student (in Canada) videotaped himself playing the role of Darth Maul from Star Wars. The videotape was accidentally left in the school’s video camera. Some classmates found the video and uploaded it on YouTube. For one reason or another, the video had gone viral and became an internet sensation. But Ghyslain Raza was so traumatized that he had dropped out of school and was treated for depression at a psychiatric hospital. He and his parents sued the students who distributed the videos for $250,000. The Business Insider has an update on what Ghyslain Raza is doing now.

In 2006, Justin Layshock, a high school senior created a fake MySpace profile of his school principal. The profile was created off-campus. The school district suspended Justin for 10 days. In 2007, a federal judge ruled that the Justin’s suspension was unconstitutional. In 2010, the Third Circuit of Appeals ruled that the school district violated Justin’s First Amendment rights.

In 2007, J.S., a middle school student created a fake MySpace profile of her school principal. Like Justin Layshock, J.S. worked on the parody profile using a home computer. J.S. was subsequently given a 10 day suspension. A federal judge ruled in favor of the school district, and the Third Circuit of Appeals agreed. (It is difficult to reconcile this case with Justin Layshock’s case, and the Court has granted an en banc hearing. A new opinion is forthcoming.)

In 2007, Avery Doninger, a high school junior blogged that she was angry that the school had cancelled a music event and called school personnel “douchebags.” In retaliation, school personnel prohibited Avery from running for student government in her senior year. Avery and her mother sued for injunctive relief alleged violations of Connecticut free speech laws, intentional infliction of emotional distress, and violations of Avery’s constitutional rights to free speech, due process, and equal protection under the Civil Rights Act. Although Avery has since graduated, this case is still pending.

Also in 2007, high school senior Katherine Evans started a Facebook group page called “Ms. Sarah Phelps is the Worst Teacher I’ve Ever Met.” The Facebook page had a photo of Ms. Phelps and Ms. Evans encouraged her friends to post their opinions about Ms. Phelps. (See the appendix in the complaint.) The school suspended Katherine for “cyberbullying” and “disruptive behavior.” Two years later, Katherine’s case against the school is still on-going.

In 2008, J.C., a middle school student made a video describing a classmate a “spoiled brat” and a “slut” and posted it on YouTube.com. When the school district suspended J.C. the court held that the school went too far. The court’s 57 page opinion is a must read for anyone who is interested in how cyberbullying and free speech intersect.

Attorney Julie Hilden suggests that schools should adopt a simple bright line rule: if off-campus speech violates civil law or criminal law, then the student should be suspended. This is an interesting approach, but is it practical? Hilden’s proposal is probably workable when students criticize or parody school personnel. However, Hilden doesn’t seem to consider the consequences of the emotional damage that youngsters can suffer as a result of peers who say hurtful things about them in the online world. Nor does it consider the educational impact on students who are bullied and harassed.

How we can protect First Amendment free speech while at the same time ensuring that the school is a safe (and comfortable) place for all students? That is a difficult question the courts will tackle more and more in the next few years. It may even be a question that the US Supreme Court will face in the near future.

But litigation is incredibly expensive and there is a risk that First Amendment rights will wither away piece by piece if cyberbullying continues to be a problem in the schools. There is, however, a solution: Schools and parents can take the high road and work together to combat cyberbullying by developing an effective, interactive curriculum for students in junior high and high school. I’ll talk more about that in the next blog post.

An excellent resource to keep up to date on the latest cyberbullying news is The Wired – Threat Level, First Amendment in Higher Education (FIRE), and Citizen Media Law Project.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Cyberbullying and Freedom of Speech originally appeared on Matthew Stoloff's Blog on December 5, 2010.

The New Jersey Anti-Bullying Bill of Rights Act is a step in the right direction, but it is not without problems. For example, what might happen to K-12 schools and teachers that assign books such as Julius Lester’s “From Slave Ship to Freedom Road”? This is a history book that traces the history of slaves in America. According to the publisher, this book encourages

African Americans to examine their own feelings about being descended from slaves, provide Caucasian students with an insight into the African-American experience, and challenge students of all backgrounds to understand what it was in human nature that allowed the terrible institution of slavery to survive for so long. From Slave Ship to Freedom Road insists that students think about history, rather than simply learn the facts.

Even so, the N-word appears in this book six times.

When a fifth grade teacher in Michigan read passages of From Slave Ship to Freedom Road out loud in class, Jala Petree was apparently so offended by when she heard the N-word that she and her parents are suing the school district for racial discrimination, racial harassment, hostile environment, and intentional infliction of emotional distress. Jala and her parents seek “compensation for pain, suffering and emotional distress, humiliation and embarrassment, as well as damages set forth therein but not yet manifested.” The minimum amount of damages sought is $25,000.

If a book containing offensive words is assigned to students or read out loud in class, will students have any rights under the New Jersey Anti-Bullying Bill of Rights? According to the bill,

‘harassment, intimidation or bullying’ means any gesture, any written, verbal or physical act, or any electronic communication that … will have the effect of physically or emotionally harming a student … (Emphasis added.)

It remains to be seen how one can prove that a particular book reading or book assignment has caused “emotional harm” to the affected student. It also remains to be seen whether schools will discipline the teacher for having read aloud a book containing the N-word.

Matthew Heller in OnPoint News suggests that cases like the Jala Petree case will likely be thrown out. To support his argument, Mr. Heller reminds us of a similar case: Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 (9th Cir. 1998). In this case, Mark Twain’s book, “The Adventures of Huckleberry Finn” was assigned reading. The book contains the N-word. A parent had sued a school district for assigning a book containing the N-word, and the 9th Circuit federal court held that it could not “ban books or other literary works from school curricula on the basis of their content . . . even when the works are accused of being racist in whole or in part.”

But even if such cases are thrown out, one or more New Jersey school districts will still have spent a tremendous amount of  taxpayer money in administrative costs determining whether a teacher should be disciplined as well as litigation costs for having litigated the matter.

None of this is to say that the New Jersey Anti-Bullying Bill of Rights Act is unhelpful. I have said many times that it is a step in the right direction, and in the long run, it will most likely help reduce the number of bullying/harassment incidences in school. But this may come at a high cost to the taxpayer — at least in the short term.

It will be interesting to see what happens to Jala Petree case. Keep an eye on it. In the meanwhile, if Governor Christie vetoes the bill, and there are not enough votes to pass the bill into law, the legislature should consider redrafting some of the language so that the bill is more specific and concrete.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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NJ Anti-Bullying Bill of Rights Act – Part II originally appeared on Matthew Stoloff's Blog on November 28, 2010.

Two questions: (1) What does the bill do? and (2) Why did Assemblyman Michael Patrick Carroll (R-Morris) vote against the bill?

Let’s briefly tackle the first question. The Anti-Bullying Bill of Rights Act is a bill that prohibits harassment, intimidation or bullying on school property, school-sponsored functions, or on school buses. The bill’s language is quite strong:

“Harassment, intimidation or bullying” means any gesture, any written, verbal or physical act, or any electronic communication that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic, that takes place on school property, at any school-sponsored function or on a school bus and that:

a. a reasonable person should know, under the circumstances, will have the effect of physically or emotionally harming a student or damaging the student’s property, or placing a student in reasonable fear of physical or emotional harm to his person or damage to his property;

b. has the effect of insulting or demeaning any student or group of students in such a way as to cause disruption in, or interference with, the orderly operation of the school;

c. creates a hostile environment at school for the student; or

d. infringes on the rights of the student at school.

In addition, the bill requires that school personnel be trained to identify and address bullying, intimidation, and harassment. Moreover, schools are required to draft comprehensive anti-bullying policies, develop programs to raise awareness of bullying and harassment and how to address them, as well as to report any such incidences twice a year.

One important part of the bill is that a school administrator will be subject to discipline if she fails to conduct an investigation of a known incident of bullying or failed to take appropriate action to address the incident and remedy the situation.

A brief summary of the bill can be found here.

Now that we understand what the bill is and its aims, let’s move on to the second question: Why did Assemblyman Michael Patrick Carroll (R-Morris) vote against the bill?

Mr. Carroll spoke to the press and gave several reasons why he voted against the bill.

In the Westfield Patch, Mr. Carroll stated that the bill did not cover “all” cases of bullying: “If you are harassed based on being bookish or nerdish you are not covered.”

I do not think that Mr. Carroll is correct. The bill contains a “catch-all” provision that prohibits harassment, intimidation, or bullying on the basis of a “distinguishing characteristic.” There are many characteristics that distinguishes one group from another. The bill does not specifically identify “nerds,” “goths,” “emo,” “metalheads,” or “jocks.” It would be impossible to list every single type of subculture, particularly when new subcultures are born every so often. Nonetheless, these groups will likely be protected under the “other distinguishing characteristic” provision. In any event, it would be very difficult to believe that these various subcultures wouldn’t be protected since it is a known fact that many members of these subcultures have been bullied and harassed in school.

In the Chatham Patch, Mr. Carroll criticized the bill because “Most of this bill is paperwork and reporting.”

Based on my reading, the bill does contain paperwork and reporting; but I don’t think it would be overwhelming. It seems that the amount of paperwork is proportional to the number of incidences that occur. If school personnel are well trained and implement good anti-bullying programs, there will be fewer incidences and, consequently, a smaller amount of paperwork.

Those who voted for the bill obviously felt that some paperwork was a necessary evil to reduce the number of bullying-related incidences. I agree.

Finally, Mr. Carroll also said that the bill increases taxpayer liability by opening up schools and public institutions to lawsuits.

Here, I think Mr. Carroll may actually be on to something.

First, we know that there are already lawsuits against schools that are costing taxpayers an enormous amount of money. For example, there is an ongoing case involving a gay student (“J.C.”) who was harassed and bullied at a New Jersey high school. In that case, the school district faces a $10,000 fine, plus possible compensatory damages and injunctive relief. If the Anti-Bullying Bill of Rights becomes law, it is possible that school districts (and the taxpayers) will be able to save on costs associated with civil litigation brought upon by parents of children who have been bullied and harassed by their teachers and peers.

On the other hand, the New Jersey Anti-Bullying Bill of Rights is not necessarily without problems. The bill may contain language that attorneys and the courts perceive as vague and overbroad. As an practicing lawyer with many years of experience, Mr. Carroll has undoubtedly observed that certain provisions in the bill should be more specific and concrete. Thus, if Governor Christie signs this bill into law, there may be legal battles that the New Jersey legislature may not have anticipated when it drafted the bill — and to that extent, Mr. Carroll may be right in that the bill doesn’t necessarily reduce taxpayer liability.

In the next blog post, I will discuss one potential legal issue that the bill raises.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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NJ Anti-Bullying Bill of Rights Act originally appeared on Matthew Stoloff's Blog on November 26, 2010.

Goth people might look odd to the average person, but they are intelligent, incredibly artistic, expressive, intuitive, and very open-minded. I know this personally — I’ve met a few myself — and they are not strange, or freaks, or zombies.

Fellow blogger, Siouxsie Law, a lawyer who makes goth her lifestyle, recently blogged about Sophie Lancaster, a 20 year goth female who, along with her goth boyfriend, was brutally attacked in 2007 by a group of teenagers in the United Kingdom. Sophie and her boyfriend were viciously punched and kicked simply because they looked “different.” Sophie subsequently died in the hospital as a result of her extensive injuries; her boyfriend barely survived the attack. Below is a haunting rendition of what happened on that terrible night:

(For those who are hearing impaired, click here to read Portishead’s lyrics.)

Since early 2010, Sophie’s mother has been hard at work running the Sophie Lancaster Foundation, a not-for-profit charity dedicated to promoting respect and understanding of subcultures. The Foundation’s acronym is S.O.P.H.I.E.: Stamp Out Prejudice, Hatred (and) Intolerance Everywhere.

I ran a quick search to see if there were any recent attacks against goth people in the United States. The only case I came across was a 2006 case in California (see James Howard’s powerful statement to the Court).

It seems that physical assaults against goth youngsters are far less common than bullycides. Recent cases involving goth youngsters who committed suicide include Brandon Bitner, whom I discussed in an earlier blog article, and Tempest Smith. Both had apparently been bullied in school because of the way they looked.

(A sad, but interesting aside: Nicola Raphael was a 15 year old in Scotland who was bullied because she enjoyed the goth lifestyle and wore black clothes and make-up. The bullies called Nicola a “freak” and “zombie.” In 2001, Nicola committed suicide. Nicola’s heart was frozen and three years later, doctors defrosted her heart and transplanted it into a three year old child.)

Hateful websites such as “God Hates Goths” do nothing to promote diversity and tolerance. Statements such as “The only good goth is a dead goth” or “Goths are the lowest form of human trash that has ever crawled upon this good clean earth” clearly constitute as hateful speech. That website has a distorted view of the goth subculture and makes false accusations against the people who are members of the goth subculture. For a better understanding of goth people, read what Goth Mom has to say.

The goth subculture has a rich and fascinating history. Wikipedia even has entries on goth subculture and goth fashion. Although the goth subculture emerged in the early 1980s post-punk rock music era, goth is also influenced by gothic fiction, penned by such famous authors like Lord Byron, Mary Shelley, Edgar Allen Poe, and Bram Stoker.

I think that when students are assigned to read famous stories like “Frankenstein,” “Dracula,” The Pit and the Pendulum,” and even “Jane Eyre,” school teachers should discuss how these works may have influenced the modern goth subculture. (A 21st century, New York Times Bestseller work of fiction like “Pride, Prejudice and Zombies” might work too.)

Similarly, music teachers should be encouraged to discuss various rock music genres and perhaps teach students to perform accessible songs performed by bands that are famous among the goth community, such as Siouxsie and The Banshees and Peter Murphy.

There are many creative teaching strategies that teachers and school personnel can employ to promote diversity and tolerance. These strategies can also be used to promote peer acceptance of students who are drawn to the goth subculture. We must remember the Sophie Lancaster tragedy and work together to stop the hate. Teachers and school administrators have as much responsibility as parents to teach youngsters that it’s okay to be different and express yourself in different ways.

I’ll close this article with this live performance of a song from 1990 from a famous goth band: The Cure’s “Pictures of You.” (Note: For those who are hearing impaired, click here to read the lyrics.)

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Remembering Sophie Lancaster originally appeared on Matthew Stoloff's Blog on November 19, 2010.

Prior to that blog post, I wrote about the deaths of Ryan Halligan and Phobe Prince, and the bullying/harassment/intimidation issues that many students face in school.

Several significant events have occurred in the last several weeks:

On September 22, 2010, Tyler Clementi, an 18 year old gay student at Rutgers University, committed suicide. It is suspected that Mr. Clementi jumped to his death after learning that his roommate secretly filmed him having sex with another man and broadcasted it on the internet.

Following Mr. Clementi’s death, New Jersey lawmakers have been intent on enacting the country’s toughest anti-bullying law, which would require public K-12 schools to develop and implement anti-bullying programs as well as require colleges to adopt language to address bullying. Interestingly, netizens are debating whether we need more laws to address bullying.

In the weeks following Mr. Clementi’s suicide, the Werther effect shook the nation: several teenagers committed suicide. It is suspected that these suicides may be attributed to peer-on-peer bullying and harassment. These suicides include thirteen year old Asher Brown, thirteen year old Seth Walsh, and fifteen year old Billy Lucas. During this same period, several news outlets reported horrendous peer-on-peer bullying — for a summary of these incidences, see, for instance, The Year in Bullying: A Horrific Timeline.

(Note: Although Billy Lucas was harassed and bullied in school, his mother insists that Billy was not gay. There has been some suggestion that certain advocacy groups are using Billy’s name to further their political and social cause.)

Then, when a Canadian teenager suggested that the world wear purple in memory of those who recently committed suicide, a member of the Midland School Board in Arkansas, Clint McCance, posted hateful, anti-gay remarks on his Facebook account. Rather than copying and pasting Mr. McCance’s comments word for word, I direct the reader to see Mr. McCance’s Facebook page in pdf format (courtesy of HRC Back Story).

Mr. McCance’s Facebook remarks attracted the attention of bloggers everywhere, including Michael A. Jones and Sara Bernard.

While Mr. McCance has an absolute right to freedom of speech, the LGBT community was right to be concerned whether Mr. McCance should serve as a school board member. After all, school board members are obligated to act in the best interest of all children, regardless of sexual orientation, sex, gender, race, disability, or national origin.

On October 27, Anderson Cooper broadcasted a powerful TV report about Mr. McCance.

On the next day, Mr. McCance appeared on CNN and spoke with Anderson Cooper. Mr. McCance stated that he would resign from his position as Board member.

Around the same time Mr. McCance stated that he would resign, the the U.S. Department of Education posted a 10 page public letter on its website reminding school administrators and parents that student misconduct “may trigger responsibilities under one or more of the federal anti-discrimination laws enforced by the Department’s Office of Civil Rights.” To read the letter in its entirety, see Dear Colleague Letter: Harassment and Bullying.

On November 1, 2010, Mr. McCance’s resignation was official.

George Takei of Star Trek fame had this to say about Mr. McCance:

On November 5, Brandon Bitner, a 14 year old from Pennsylvania, committed suicide. Brandon was a freshman at high school and an accomplished violist who could play Evanescence songs (see here) and recently performed at the high school Talent Show in October (see here). It has been reported that for years, Brandon had been verbally abused at school where he was called “gay,” “girly,” and “fag.”

Not all teenage suicides are preventable, but these recent suicides highlight the importance of addressing bullying, harassment, and intimidation in the schools. Parents, teachers, and school administration must also do more to promote diversity and tolerance, and prevent bullying, harassment, and intimidation. Unfortunately, a “culture war” seems to be brewing as school administrators try to develop ways to promote diversity and tolerance. This “culture war” seems to be hampering much needed progress. It is hoped that all sides can reach common ground sooner rather than later.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Six Weeks of Bullying in the News originally appeared on Matthew Stoloff's Blog on November 10, 2010.

Off-campus conduct and student rights in New Jersey. Prior to the start of the 2009-2010 school year, the school Board of Education required that all of its students attending the Ramapo High School sign an off-campus conduct agreement not to use, possess, or distribute drugs and alcohol. This agreement came about in response to four Ramapo High School students who were suspended from school for drug activity (according to this article, it’s five students).

In essence, the regulation stated that if school personnel suspected that a student was allegedly involved in drug activity (including off-campus drug activity), the school would prohibit the student from participating in an extracurricular activity for a specified period of time. The regulation did not require that the student be arrested or convicted by a court of law before the school exercised its punishment. A copy of the regulation is here.

When a senior high school student refused to sign the school’s off-campus conduct agreement, the school threatened to block the student’s parent from accessing the student’s online school records. The student’s parent sued on behalf of the student, alleging that the school’s policy was unlawful. The Administrative Law Judge ruled in favor of the student, holding that the Ramapo Board of Education’s regulation was overly broad and unconstitutional. A few days ago, the N.J. Department of Education upheld the ruling and the school’s regulation must now be overturned.

Nose studs and religious freedom in North Carolina. In North Carolina, 14 year old Ariana Iacono was suspended from school because her nose stud (“nose ring” or “nose piercing”) violates the school’s “dress code.” Ms. Iacono alleges that she wears a nose ring for religious reasons — she belongs to the Church of Body Modification, which

represents a collection of members practicing ancient and modern body modification rites. We believe these rites are essential to our spirituality. Practicing body modification and engaging in body manipulation rituals strengthen the bond between mind, body, and soul. By doing so, we ensure that we live as spiritually complete and healthy individuals.

Ms. Iacono and the American Civil Liberties Union bring up a good point: what if Ms. Iacono was Hindu or Muslim — since Hindu and Muslim women are often seen wearing wear nose jewelry. Interestingly, the Wikipedia entry for nose jewelry cites several Bible passages referencing nose jewelry.

The American Civil Liberties Union of North Carolina has reportedly agreed to take Ms. Iacono’s First Amendment case, and so it remains to be seen how this plays out. In the meanwhile, check out what some interesting commentaries about this case: D.L. Stewart’s “Commentary: Piercing Distracting? Who Nose?,” Alexandra Petri’s “Get me to the church of body modification on time,” and Jessica Samakow and Elizabeth Humphrey’s “Smackdown: Should Body Piercing Be Allowed in School?”

Caption: Students are happily texting on school grounds.

Sexting and privacy rights in Pennslyvania. Sexting occurs when a person sends an explicit message or nude photograph of him- or herself and shares it with another person via cell phone. At a Pennsylvania school district, a student had taken nude photographs of herself on her cell phone. The school’s principal had searched the student’s phone and found the photographs. The ACLU sued on the student’s behalf (copy of complaint), alleging that the student’s right to privacy was violated. Now, a year later, the parties have reportedly agreed to $33,000 to settle the case.

Here, the Pennsylvania school district had apparently implemented a policy to search cell phones without the student or parent’s permission for evidence of cyberbullying and to prevent sexting. Since this case was settled out of court, it remains to be seen how a judge would rule on this sexting issue. Given that a large percentage of the population engage in sexting (apparently it’s about 66%), and since 20% of teenagers engage in sexting, chances are fairly good that a school case involving sexting will make its way up to the court system someday.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Off-campus Conduct, Nose Jewelry, and Sexting originally appeared on Matthew Stoloff's Blog on September 20, 2010.

While I was studying the posters, I was reminded of a blog post that I read earlier in the week about three gay students who committed suicide in the Anoka-Hennepin school district in Minnesota during the 2009-2010 school year. (Although five students in this district committed suicide this past year, it is believed that three of these suicides may be linked to LGBT harassment.)

Disturbed by these suicides, I wanted to learn more about Minnesota’s anti-bullying policies, how the Anoka-Hannepin school district will improve its policies, and what Minnesota’s politicians will do to ensure the safety of all students regardless race, sex, disability, religion, or sexual orientation.

My first stop was the Minnesota Independent, which has published a number of articles about the Anoka suicides. There, I learned that the anti-gay hostility was not limited to students: The Anoka-Hennepin school district had recently agreed to pay $25,000 to a former student who had been subjected to anti-gay harassment by two teachers.

I also read quotes by a former Anoka-Hannepin school district teacher and two LGBT graduates who shared some of their stories and viewpoints here.

One of the most surprising piece of news was that the current governor of Minnesota had recently vetoed a bill (“Safe Schools for All”) that would have improved anti-bullying policies. Moreover, Tom Emmer, the GOP’s endorsed candidate for governor, stated that he would not sign the Safe Schools for All bill.

According to the Minnesota Independent, the Safe Schools for All bill “mandate trainings for teachers and administrators” to help prevent discrimination based on race, color, creed, religion, national origin, sex, marital status, disability, socioeconomic status, sexual orientation, gender identity or expression, age, physical characteristics, and “association with a person or group with one or more of these actual or perceived characteristics.”

What’s wrong with that?

The Minnesota Independent article goes on to say that the bill “has been met with opposition by social conservatives because those workshops would include factors like sexual orientation along with gender, race, religion, and disability.” The Minnesota Family Council, for example, is asking “legislators to reject the bill because it would ‘promote acceptance of homosexuality.’”

Politicians and members of the school Board of Education need to put aside their religious views and focus on strengthening anti-bullying school policies and developing school programs to teach students tolerance and mutual respect for others who are (or appear) different.

There was a time when blacks could not go to the same school as whites. There was a time when school personnel segregated many children with disabilities from the rest of the school population. Those of us who grew up in the 1980s will no doubt remember Ryan White, a teenage child who was expelled from school simply because he had AIDS.

The courts have long recognized that the school environment is a microcosm of society, and many civil rights advancements have been achieved on behalf of school children. But the Anoka-Hennepin suicides remind us that we have a long way to go. Homophobia, bigotry, and hate speech still exist in the schools. For the sake of all school children and the future of healthy society, it’s important that schools proactively develop programs to promote tolerance, understanding, and mutual respect.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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The Anoka-Hennepin Suicides originally appeared on Matthew Stoloff's Blog on September 11, 2010.

To qualify for a 504 plan, a physician must first sign a statement (1) identifying the student’s disability or health need, (2) an explanation why the student has a dietary need or allergy, (3) an explanation how the disability or health need constitutes a major life activity, and (4) an explanation what the school can do to address the matter. The next step will be to share this information with school personnel and schedule a meeting to develop a 504 plan.

What types of 504 accommodations might be available to students who have special dietary needs or food allergies? Consider these examples:

• Diabetes
  • Schools may be obligated to hire a certified school nurse or RN in the building when there are diabetic students in schools.
  • School staff may be required to ensure that a student with diabetes eat snacks throughout the day.
  • School staff may be required to know where insulin and hypoglycemia supplies are stored.
  • School staff may be required to monitor glucose levels.
• Cystic Fibrosis
  • Students with cystic fibrosis may require additional calories, and the school may be required to provide either larger food portions or a high calorie diet.
• Allergies
  • A student is allergic to a specific food ingredient. The school nutrition staff may be required to make food substitution or modifications.
  • The school nurse may be required to be trained to give epinephrine to alleviate allergic reactions.
• Feeding difficulties
  • A student cannot chew solids and must consume liquid diets. The school nutrition staff may be required to provide a liquid diet.
  • School staff may be required to hire a qualified person to assist a student who feeds through a tube.
  • School staff may be required to assist a student who is unable to feed herself.

The United States Department of Agriculture has an excellent primer titled “Accommodating Children with Special Dietary Needs in the School Nutrition Programs.” The entire 59 page manual is available here. (If you want even more information beyond the USDA’s primer, check out this 200 page course manual.) The USDA also has published other resources here.

Guidance to developing a 504 plan for food allergies may be found here. A sample 504 plan for students with diabetes may be found here and there. The American Celiac Disease Alliance has a model 504 plan for students with celiac disease.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Food Allergies and Special Dietary Needs in School originally appeared on Matthew Stoloff's Blog on June 28, 2010.

School bullying, intimidation, and harassment can cause serious harm. Children who have suffered from repeated acts of bullying and harassment become afraid to go to school. In rare cases, students like Ryan Halligan and Phoebe Prince commit suicide because they could no longer withstand the emotional and physical abuse that the bullies had inflicted upon them. In extremely rare cases, bullies will use dangerous weapons; such was the case in the February 2008 fatal shooting of Larry Fobes King.

First things first: No child should be bullied, intimidated, or harassed. Fortunately, most states, including New Jersey, have anti-school bullying laws. (To see which states have anti-bullying laws, see this website.) While there are no federal laws that specifically target school bullying, some attorneys have been successful in utilizing Title IX of the Educational Amendments of 1972, Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act to address bullying, intimidation, and harassment. Depending on the facts of the case, some attorneys have also been successful in applying state-specific anti-discrimination laws as well.

Second, never feel that contacting an attorney early is too rash. Too often, people think of attorneys as the go-to professionals when the situation has escalated to an extremely bad situation. Instead, one should think of attorneys like medical doctors: treat the problem early before it gets worse. To prevent a bad situation from escalating into a worse situation, contact an attorney who can help resolve the bullying and harassment issues. If you don’t have an attorney and don’t know of one, now is the time to look for one and establish a relationship. (Two good starting points are The Yellow Pages for Children with Disabilities and Justia.) Even if you end up not retaining an attorney for a bullying issue, at least you have communicated with an attorney who can help you with other legal matters, such as special education matters, in the future. Thus, if you liked the attorney that you communicated with, you know who to turn the next time there is a possible legal issue.

Third, some states require that schools implement an anti-bullying policy (see New Jersey’s model policy). Furthermore, schools may be required to distribute this policy to parents. If your child’s school has a website, New Jersey law requires that the school post the anti-bullying policy on its website. The anti-bullying policy is always a great starting point. If you can’t find the policy on the school’s website, call the office and have them send you a copy in the mail or via email.

Fourth, document everything. I cannot stress this enough. Document when the incident took place, what happened, who was involved, and where it occurred. For clarity, be sure to write down the What, Who, Where, and When, as well as the How. If you know Why the incident occured, or if your child has a theory, write it down.

Fifth, any time you communicate with school personnel by telephone, follow up the conversation in writing. Write clearly, concisely, and politely. Watch your tone. The purpose of the letter is to reinforce the idea that the bullying/harassment issue is something that needs to be addressed, not forgotten. When you write your letter, do your best to put your emotions aside. Look at the situation objectively. Describe what has happened and how this has affected your child’s self-esteem, social interactions, and academic success.

When all else fails, an attorney can take action on your behalf. How an attorney handles the issue will depend on a number of factors. If the situation is recent, a few letters may be all that are needed. (A letter or three from an attorney can be quite effective.) If the situation has been is pervasive and has been going on for a long period of time, and the parent has sufficient funds to litigate the matter, an attorney can file a lawsuit.Other, less expensive alternatives such as mediation, may help. There may be many roads to consider, and you need to discuss these issues openly with your attorney.

Bullying, intimidation, and harassment in schools are serious issues. Bloggers like Moms Against Bullies recognize how badly children can suffer verbal and physical abuse at the hands of their peers. Attorneys like Jen Laviano, special education law websites like Wrightslaw, and anti-bullying websites like Stop Bullying Now! recognize the necessity of addressing the issue as early as possible, before a bad situation becomes a worse situation. Students, parents, teachers, and school personnel must learn from the Ryan Halligan, Phoebe Prince, and Larry Fobes King tragedies.

Remember, when you help stop school bullying on behalf of your child, everyone in your child’s school will benefit.

© 2010, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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School Bullying, Intimidation, & Harassment originally appeared on Matthew Stoloff's Blog on March 15, 2010.

Caption: A high school student with a mohawk takes notes in class.

In 1969, several high school students, aged 13 to 16, wore black armbands to protest the Vietnam War. Concerned that the black armbands might cause a disturbance among school students, the school administration imposed a ban on wearing these armbands and subsequently suspended five students who chose to ignore the ban. The students’ parents filed a federal lawsuit against the school on the grounds that the school’s policy violated freedom of speech under the First Amendment. The case went all the way up to the Supreme Court of the United States.

This case, commonly referred to as “Tinker,” is a famous and widely-cited constitutional law case: It is mandatory reading in law school. In virtually every lawsuit involving students, schools, and free speech, the parties will cite this case in support of their respective positions.

So what happened in Tinker? Based on the facts presented, the Court could not find any indication that the armbands disrupted the school environment. Unless the armbands would cause a disturbance in the school or violate the rights of others, the Court held that the school could not restrict a student’s right to free speech under the First Amendment. Perhaps the Court’s most famous statement is the following:

“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

None of this is to say that children are free to say or dress what they please. Tinker was about the right of students to express their political views and under what circumstances school administrators may restrict the right of students to express themselves. Over the years, numerous First Amendment cases based on different facts have been litigated. For example, if a student expressed his political views using profane language, the courts have agreed that the school administration may prohibit offensive, vulgar, and obscene speech, and the school may discipline the student (see, e.g., Bethel v. Fraser).

But what about students’ First Amendment rights to wear tattoos (Stephenson v. Davenport Community School District), facial piercings, and unique hair styles (Massie v. Henry; King v. Saddleback) in school? Perhaps not surprisingly, the courts struggle with these issues, and not all courts agree with other courts. Indeed, as fashion changes over time, the courts must adapt and recognize the rights of young people while appreciating the latest fashion trends. The courts are mindful of a particular paragraph in the Tinker decision:

“In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.”

Thus, when attorneys get into an intellectual argument about student freedom of speech, attorneys must choose their words wisely. They must answer hard questions: Is it political speech? Is it obscene? Will the speech disrupt the school environment? Is it speech that will encourage violence? These are not easy questions.

When a student wears a shirt that reads, “Gay Pride,” is it political or offensive? How about a shirt that reads “Be Happy, Not Gay“? Political, offensive, disruptive? When a student wears a shirt that supports the National Rifle Association that contains a photograph of a gun, will this encourage violence? When a student wears a removable tattoo on the back of her exposed neck that says, “I heart Obama,” is it political or obscene? When a student wears an anti-abortion sweatshirt with a photograph of a dead fetus, is it political, obscene, or both? Will a photo of a dead fetus likely to incite anger among students and teachers and cause disruption in the school? Despite all the years that have passed since 1969, we are still struggling with the same questions.

Caption: A young lady with multiple facial piercings.

With regard to First Amendment cases involving students who have tattoos, rainbow-colored hair, mohawks, or multiple facial piercings, I often wonder how the New Jersey courts (or any court in any jurisdiction) will decide. Political? Offensive? Obscene? None of them above? There are so many variables and different ways of looking at the same issues. The outcome of any case will often depend on the particular facts and who is the judge. Sometimes, the court will “punt” the hard questions and decide on the easier questions. For example, rather than determining whether a student may wear tattoos in school under the First Amendment, it may be easier for the court to decide whether the school’s policy is vague. If it is, then the student may win the case — unless, of course, the school appeals or changes its policy. Sometimes, the court never has an opportunity to answer the question because the case is settled out of court.

In Fighting Oppressive School Dress Codes, an attorney writes about how the courts have dealt with tattoos, piercings, and hair color. That article is an excellent starting point for anyone who wants to research these issues further. For a more philosophical and sociological point of view, I highly recommend Gowri Ramachandran’s paper, Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing.

As for the two friends I mentioned at the beginning of this post? I found them again almost eighteen years later. Neither has long hair or a mohawk any longer. And they’ve done very well for themselves. I haven’t asked them if the school administrators requested that they change their hairstyles. Maybe I’ll ask them someday. In the meantime, I thank them for giving me the inspiration to write this article. And to all those who choose to wear unique hair styles for personal, social, or political reasons, I say to them: rock on.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Mohawks, Tattoos, and Facial Piercings… in School originally appeared on Matthew Stoloff's Blog on December 14, 2009.

The importance of extracurricular activities cannot be overemphasized, particularly for students with disabilities who are mainstreamed because it provides an opportunity for them to learn new skills, improve their talents and self-esteem, and develop relationships with their peers. In addition, when students with disabilities participate in extracurricular activities, other “nondisabled” students will look past one’s “disability” and focus more on one’s talents and skills.

Therefore, it is important that parents understand that students with disabilities have the right to participate in extracurricular activities at school.

The federal law known as Section 504 of the Rehabilitation Act requires that public schools provide students with disabilities equal opportunities to participate in extracurricular activities as their non-disabled peers. For those who enjoy reading regulations may refer to 34 CFR Section 104.37.

Many schools must also comply with another applicable federal law that prohibits discrimination on the basis of disability: The Americans with Disabilities Act. Like Section 504, the regulations that public entities (which include schools) must adhere to under the Americans with Disabilities Act are stringent.

Children with disabilities may also be protected by another federal law known as The Individuals with Disabilities in Education Improvement Act. This is a very important law that affords children with disabilities the right to a “free and appropriate education.” A “free and appropriate education” may include gym classes, including physical and occupational therapy, as well as any extracurricular activities that may be available to the general student population.

Under these federal laws, schools must not discriminate against students on the basis of disability and may be required to implement necessary modifications or provide accommodations in order for students with disabilities to participate in extracurricular activities.

Here are a few concrete examples:

1. A student with diabetes who tries out for the cheerleading team may not be excluded because she may need to give herself insulin.
2. A student with autism or Asperger’s Sydrome may not be excluded from participating in Tae Kwon Do classes because he or she is non-verbal.
3. A deaf or hard-of-hearing student may be provided a sign language interpreter to help facilitate communication at a student government club meeting.
4. A student who is blind may be permitted to touch the chess pieces on the board or have someone verbally explain where a piece has been moved to.
5. A school would be required to provide wheelchair accessible mode of transportation for a disabled student who wishes to participate at an off-site, school-sponsored music training program.
6. A student with mobility issues who wants to play golf but cannot walk long distances may ride in a golf cart.
7. A student who is allergic to nuts may join a baseball team and ask the school to implement a policy prohibiting all team players from bringing, eating, or spitting out sunflower seed shells, pumpkin seeds, and peanuts.

Additional examples of modifications and accommodations are provided in this wonderful article titled, “‘I Know I Can Do It’: Sports are for Disabled People Too.”

Over the years, there have been many interesting cases involving students with disabilities who were denied from participating in extracurricular activities. A summary of some of these cases may be found here and there.

The purpose of this article was to inform parents that extracurricular activities play an important role in every child’s life. Children with disabilities who participate in extracurricular activities develop skills and talents and friendships. Children with disabilities have the right not to be discriminated against on the basis of disability. Moreover, schools may not deny children with disabilities the opportunity to participate in extracurricular activities.

If your child has a disability and is interested in participating in an extracurricular activity, but has not been able to do so, your child may be a victim of disability discrimination. It is important that you advocate on behalf of your child and speak with the school to find out why your child has not been afforded an opportunity to participate in an extracurricular activity of his or her choosing. If you are unable to make headway with the school, you may wish to consult with a child advocate or a special education attorney for assistance.

© 2009, Matthew Stoloff, Esq.. All rights reserved.

Matthew Stoloff, Esq.

Matthew Stoloff, Esq. is an attorney in New Jersey. He focuses on special education matters, disability discrimination issues, employment law and animal law throughout northern and central New Jersey. For more information about Mr. Stoloff and his practice, see his website.

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Students with Disabilities and Extracurricular Activities originally appeared on Matthew Stoloff's Blog on November 16, 2009.