Concussion mechanics. Source: Patrick J. Lynch, medical illustrator. Creative Commons Attribution 2.5 License 2006

A concussion is the most common type of traumatic brain injury that can result in physical, cognitive, and emotional symptoms. A concussion may be caused by impact forces (which the head strikes something) or by impulsive forces (which the head moves as a result of an impact to the body). Such impact fores and impulsive forces frequently occur in contact sports games such as football, hockey, lacrosse, and soccer. But it can also occur in other “non-contact” sports such as volleyball, roller blading, skateboarding, and snowboarding.

If a concussion is not identified and treated appropriately, the individual may develop permanent, life-long symptoms including headaches, dizziness, fatigue, anxiety, memory and attention problems, sleep problems, and irritability. Subsequent concussions can result in psychiatric disorders and loss of long-term memory. Individuals who have had multiple concussions are at risk of developing Alzheimer’s disease and dementia pugilistica.

Thus, the importance of identifying and treating concussions cannot be overemphasized.

In the past, when a high school football player was struck in the head or pounded down hard, a school coach might briefly look at the player in the eye and say “You look fine. Get back out there, champ!”

Under a recently enacted New Jersey law, that can no longer happen.

New Jersey is one of a handful of states that has a concussion law. The law requires that student athletes who are suspected of having a concussion be immediately removed from the game and prohibited from playing additional games until a concussion specialist gives written approval.

Like the NJ Anti-Bullying Law, the concussion law also requires that school districts develop a written policy on concussion prevention and treatment. Additionally, athletic trainers who are licensed by the state are required to take continuing education in concussions.

The Athletic Trainers’ Society of New Jersey has published a helpful checklist that help school districts ensure it is in compliance with the NJ law.

When a student athlete suffers from a concussion, it can have a dramatic effect on the student’s academic performance and behavior. The student can suffer from memory loss; difficulties solving problems; difficulties finding the right words; have difficulties organizing information; exercise poor judgment; and experience depression and anxiety. To learn more about the effects that a concussion can have on a student, I recommend reading Educating Students with Traumatic Brain Injury.

Many experts have recommended academic accommodations to student-athletes with concussions.

Academic accommodations are important because the brain needs time to heal itself; stress and academic overload may hamper the healing process.

What types of accommodations might a student with a concussion receive? It depends. It could involve shortened school days, increased timed tests, and/or reduced homework.

On page 5 of the New Jersey Department of Education’s Model Policy and Guidance for Prevention and Treatment of Sports-Related Concussions and Head Injuries, we find the following:

Temporary Accommodations for Student-Athletes with Sports-Related Head Injuries

• Rest is the best “medicine” for healing concussions or other head injuries. The concussed brain is affected in many functional aspects as a result of the injury. Memory, attention span, concentration and speed of processing significantly impacts learning. Further, exposing the concussed student-athlete to the stimulating school environment may delay the resolution of symptoms needed for recovery.

• Accordingly, consideration of the cognitive effects in returning to the classroom is also an important part of the treatment of sports-related concussions and head injuries.

• Mental exertion increases the symptoms from concussions and affects recovery. To recover, cognitive rest is just as important as physical rest. Reading, studying, computer usage, testing, texting – even watching movies if a student is sensitive to light/sound – can slow a student’s recovery. In accordance with the Centers for Disease Control’s toolkit on managing concussions boards of education may look to address the student’s cognitive needs in the following ways.

• Students who return to school after a concussion may need to:

1. Take rest breaks as needed.

2. Spend fewer hours at school.

3. Be given more time to take tests or complete assignments. (All courses should be considered)

4. Receive help with schoolwork.

5. Reduce time spent on the computer, reading, and writing.

6. Be granted early dismissal to avoid crowded hallways.

A recent survey published in December 2011 revealed that 60% of school districts’ concussion policies do not define specific academic accommodations. This is surprising since the law requires that schools review the model policies and recommendations offered by organizations with expertise in brain injuries. The NJ Department of Education’s Model Policy and Guidance for Prevention and Treatment of Sports-Related Concussions and Head Injuries is quite helpful. However, the NJ concussion law does not specifically require that schools to draft specific academic accommodations that might be available to students with concussions. In fact, the word “accommodations” do not appear anywhere in the NJ concussion law.

Even if your child’s school has a concussion policy that does not list specific academic accommodations, it is important to remember that the NJ concussion law gives your child the right to those accommodations. Be sure to discuss with school personnel what academic accommodations may be appropriate for your child.

When this story broke back in March, it went international.

According to the press, Mr. Blackmore made the comment after witnessing some “unsuitable, physical interaction” between students.

Some of you might be wondering: What, exactly, did Mr. Blackmore see that would rise to the level of “unsuitable, physical interaction”? How could a “hug” rise to the level of “unsuitable, physical interaction”?

Image by Jesslee Cuizon @ http://www.flickr.com/photos/eelssej_/394781835/ Creative Commons 2.0

I don’t know what Mr. Blackmore witnessed, but I have some pretty good ideas. Maybe it was a hug between students that lasted for more than 2 seconds. Maybe it was a hug where both students squeezed each other really, really hard. There are many different kinds of hugs — even unwanted hugs — that might have caused Mr. Blackmore to react the way that he did.

There are countless types of hugs, including “The A-frame Hug,” “The Bear Hug,” and “The Group Hug.” (To learn more about these hugs, check out Juan Mann’s The Illustrated Guide to Free Hugs.)

There’s also “The Unreciprocated Hug” — otherwise known as “The Unwanted Hug.” This type of hug occurs when one person hugs another who does not want to be hugged.

Then there’s another kind of hug that I’m going to coin “The Uncalled-for Hug.” This type of hug occurs when one person receives a hug that is more than what she expected to receive. Perhaps a person expected an “A-frame Hug” and got a “Squeeze Hug” instead.

And then there’s “The One-sided Hug.” The one-sided hug might not be a real hug — it is really more of a sudden, quick grab by one person of another.

Last, but not least, there’s “The Sexual Hug,” which I’ll leave the reader to visualize.

Why is all of this important?

This is all important because context matters, and we have no idea what Mr. Blackmore saw or why he reacted the way he did. I don’t think Mr. Blackmore would have announced that the school was a no-hugging zone if he merely saw students giving each other a friendly “A-frame” hug that lasted 2 seconds.

Maybe it was a “One-sided Hug.” Maybe it was a “Sexual Hug.” Whatever the type of hug he saw, perhaps Mr. Blackmore thought it met the definition of harassment under the New Jersey Anti-Bullying Act.

The New Jersey Anti-Bullying Act contains broad language, and there is a provision that says:

‘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.”

Read it again–this time more slowly:

any gesture … or physical act … that … will have the effect of physically or emotionally harming a student.

This is extremely broad language. Note that the law does not say that such acts must be committed repeatedly. It can be a one-time event. So if a student gives another student a “hard, unwanted” hug, that could potentially  fit the definition of harassment. What does “emotionally harming” mean? Well, the law is so new, we are dealing with uncharted territory, so we don’t really know for sure.

Is it possible that we might see a case down the road involving a student who has been disciplined for giving an “Uncalled-for Hug” or “Unexpected Hug” or a “Sexual Hug”? Yes, it’s possible.

But school personnel and lawyers really need to be careful about regulating social behavior among students. They need to tread carefully on how they’re approaching this issue. Touching and hugging are part of our culture, and if school personnel and lawyers are going to start defining what an “appropriate hug” is, we will likely see artificial rules that will not and cannot be uniformly enforced.

A hug can have many meanings. It can be a form of affection, sympathy, and comfort. It can mean other things too, and it’s going to be very difficult to draw lines between the different types of hugs; and school personnel cannot read their kids’ minds.

Students also need to be careful too. Students should not make false allegations against another student. Often times, though, students say and do things without really thinking about the consequences. What students say and do could have a negative social impact in their schools and beyond.

Maybe Mr. Blackmore’s school announcement was a warning to students not to do anything that resembles a “bear hug” or “sexual hug.” Maybe Mr. Blackmore wasn’t referring to the “A-frame hug” when he made his announcement. Maybe Mr. Blackmore was concerned that the type of hugs he was seeing fell under the definition of harassment according to the NJ Anti-Bullying Act.

So many questions, and unfortunately, we will probably never know what Mr. Blackmore was thinking or what his intent was when he made his announcement. On April 5, Mr. Blackmore resigned from his position as principal. According to the press, Mr. Blackmore’s resignation was a “personnel matter and the reasons were confidential.”

In the meanwhile, the kids at Matawan-Aberdeen Middle School are still free to hug their friends and classmates at school. Let’s hope that never changes.

If you’re not familiar with Juan Mann or the Free Hugs Campaign, check out the video below (music lyrics can be found here).

Eric is a high school student with Down’s Syndrome. He recently turned 19 years old. He will continue his education at his high school next year where he hopes to continue to play in tournaments with his classmates. The problem is that the Michigan High School Athletic Association‘s constitution imposes age restrictions on those who can participate in tournament games. Eric is, to put it mildly, too old to play in state sponsored tournaments.

According to the FAQ on the Michigan High School Athletic Association (MHSAA) website:

To participate in MHSAA tournament sponsored sports a student must be under 19 years of age except that a student who turns 19 on or after Sept. 1 of a current school year is eligible for the balance of that school year.

According to the MHSAA’s History, Rationale, and Application of the Regulations of HS Athletics in Michigan:

the age limitation cannot be waived, regardless of how few days or hours a student exceeds the limit or the circumstances which delay the student’s start of progress through school. . . . [The rule] treats all students equally regardless of race, creed, origin, gender, giftedness, or disability. . . . (p. 15)

The document goes on to state:

Throughout society, absolute age standards are accepted. Sometimes they are minimums (16 to drive, 18 to vote, 21 to drink alcohol). Sometimes the age standards are maximums. . . .

The age limitation has many purposes, among which are that it helps to create equal conditions by limiting competition to participants of approximately the same age, size and maturity. . . . (p. 15)

The document noted that the Michigan Department of Civil Rights upheld the MHSAA’s age rule even to handicapped students (cases cited on p. 16).

The document also cited Sandison v. MHSAA, 64 F.3d 1026 (6th Cir. 1995), a case that involved two high school students with learning disabilities who turned 19 years old and were declared ineligible to participate in running track. The students sought an age waiver, and they alleged that the MHSAA’s age rule violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The students ultimately lost that case. See also Pottgen v. Missouri State High School Activities Association, 40 F.3d 926 (8th Cir. 1994).

Despite the 73,000+ people who signed the petition to support an age waiver to permit Eric to play ball in what might be his final year of high school, the MHSAA rule imposing an age limit does not appear to be discriminatory. The rule was not written to exclude those with disabilities; rather, it is a neutral rule that excludes everyone, not just those with disabilities, who reach a certain age. That is how the Sandison court saw it back in 1995, and that is how it seems to be at the present time.

Yet, none of this has stopped Eric’s father from starting a petition to change the MSHAA constitution. This is, after all, a free country, and positive change is always a good thing.

Eric’s father says that there are 23 states that allow waivers to the maximum age rule. On its face, age waivers sound reasonable, particularly in light of the fact that some students with disabilities may need to continue their secondary education until they reach 21 years of age.

It is important to keep in mind, however, that in those states where age waivers are available, students with a disability who are over 18 years of age do not necessarily have a right to play. Other factors must be taken into consideration, such as

1. The athletic experience of the student;

2. The degree to which the student presents a risk of harm to other competitors due to his or her strength, size, or speed;

3. The nature of the sport;

4. The degree to which fair competition among high school teams would be impacted by the student’s participation; and

5. Whether the student’s individualized education plan, if any, contains a provision requiring sports participation.

See Baisden v. West Virginia Secondary Schools Activities Commission, WV Sup. Ct., 2002. See also Sandison, at 1035.

At this point, the MHSAA is not legally obligated to create an age waiver, though it would be helpful to know the specific reasons why the MHSAA won’t do it. At the time this blog post was published, I was unable to find an official statement on the MHSAA website outlining its reasons why it has rejected to create an age waiver.

In the meanwhile, netizens from both sides of the aisle are debating whether the MHSAA should permit age waivers. Some people say that age is irrelevant–so long as Eric is a student, he should be permitted to play. Others argue that Eric has to learn to appreciate the “rule of law”: Eric has to learn that rules are rules, and the rules cannot always be bent for him.

If you live in Michigan, and you believe that Eric should play ball and that the MHSAA should permit age waivers, you may want to sign the petition.

Most people have never heard of the Council of Local Mandates. This is not surprising, since the Council was created in 1995, which is quite recent.  Another reason why most people have never heard of the Council is because the Council’s powers are very limited and can only be exercised in limited circumstances.

In essence, the Council has the “exclusive constitutional authority” to  strike down a law, rule, or regulation that “imposes an unconstitutional ‘unfunded mandate’ on boards of education, counties, or municipalities.”

On January 27, 2012, the Council of Local Mandates struck down parts of the New Jersey Anti-Bullying Law because it is an “unfunded mandate.”

What is an “unfunded mandate”? In simple terms: When a local government entity is required to comply with or implement a statute, rule, or regulation, but there is no money (other than local property taxes) to enable the entity to comply with the law, it is an “unfunded mandate.”

Unfunded mandates are unconstitutional under the New Jersey Constitution,  Art. VIII, § 2, ¶ 5. When the New Jersey Legislature enacts a new law, it must appropriate funds to local government entities so that these entities can comply with the law.

When the New Jersey Legislature enacted the Anti-Bullying Bill of Rights Act, the Legislature created a special fund called the “Bullying Prevention Fund.” The money in this Fund would be used to offer grants to school districts to  comply with the NJ Anti-Bullying Law, such as training personnel and hiring more staff if necessary.

But there was apparently no money in the Fund.

So, on September 2011, the Allamuchy Township Board of Education filed a complaint, alleging that no funds had been appropriated for the Bullying Prevention Fund in order for school districts to comply with the NJ Anti-Bullying Law. Therefore, the NJ Anti-Bullying Law was an unfunded mandate. See In re Complaint filed by the Allamuchy Township Board of Education.

The State of New Jersey answered the complaint, requesting that the complaint be dismissed. Allumuchy Township moved for summary judgment. Then, the State of New Jersey cross-motioned for summary judgment.

Over the next several weeks, numerous papers were filed by several special interest organizations. The New Jersey State Bar Association, the LGBTQ Cacus of Rutgers School of Law, and the New Jersey Department of Education, all filed amicus curiae briefs in support of the Anti-Bullying Law. Not surprisingly, a number of Board of Educations filed papers in support of Allamuchy’s position to overturn the law.

All of these events (and corresponding documents) are well documented on the Council of Local Mandates’ website.

On January 27, 2012, a hearing was held. On that same day, the Council determined that the New Jersey Anti-Bullying Law was an unfunded mandate.

By law, the Council is required to issue a written opinion explaining its reasons why the Anti-Bullying Law was an unfunded mandate within sixty (60) days after the hearing.

Interestingly, the Council agreed to hold off issuing its written opinion until the New Jersey legislature was able to implement new changes to the NJ Anti-Bullying Law that would correct the problems raised in this case.

According to the press, the NJ legislature would funnel new money, up to $1,000,000, as well as a task force, to keep the Anti-Bullying Law on the books. The bill is referred to as S1789 in the Senate and A2709 in the Assembly. The language in both bills are identical.

On March 11, 2012, the online version of the Star Ledger ran an article that examined whether the New Jersey Anti-Bullying Law actually worked. Not surprisingly, there were some who said that it helped; and there were those who said that it didn’t help at all. It is definitely worth the read.

On March 15, 2012, the New Jersey Legislature in both houses voted in favor of the new bill that would appropriate $1,000,000 to the Bullying Prevention Fund. The bill passed 35-0 in the Senate and 72-2 in the Assembly.

On March 27, 2012, New Jersey Governor Chris Christie signed the new legislation, effectively “resuscitating” the NJ Anti-Bullying Law.

It is important to note that the Council did not strike down the New Jersey Anti-Bullying Law in its entirety. Rather, it only struck down those portions which required that schools comply with the law’s requirement for training and hiring personnel. The Council did not strike down the definition of intimidation, harassment, and bullying as set forth in the Anti-Bullying Law.

The viability of NJ Anti-Bullying Law was certainly in question when the Council determined that it was an unfunded mandate. But it has been saved–at least for now.

Now, there has been some discussion whether $1,000,000 spread over 600+ school districts is even enough money at all. On its face, it seems that $1 million is a paltry sum. After all, that comes out to approximately $1500 per school district.

But it is important to keep in mind that compliance with the NJ Anti-Bullying Law does not require hiring additional staff. It does not require that school districts pay for anti-bullying programming. The law is flexible in the sense that school district personnel can be creative in developing its own anti-bullying programming. In a previous post, I discussed some approaches to developing effective anti-bullying programs.

It is also important to keep in mind that some organizations provide free training in preventing and addressing bullying. For example, the New Jersey State Bar Foundation provides FREE training to school personnel. As part of this training, free materials will be distributed, including the Bar Foundation’s “Anti-Bullying Curriculum Guide” and “Bully-Busting Curriculum: Six Essential Lessons for Grades K-12.” School districts need to take advantage of these free training sessions. In fact, the new legislation requires that school districts seek free alternatives before applying for funding.

Not to be undone with the NJ Anti-Bullying Law, the NJ Legislature recently introduced two additional bills to fight bullying:

A450. Restricts cyberbullying offenders’ access to the Internet.

A749. Nonpublic schools must also adopt a policy prohibiting harassment, intimidation, or bullying of a student.

It will be interesting to see whether these bills pass, and what impact these bills will have on the fight against bullying.

In the meanwhile, bullying continues to be a hot topic. As part of the anti-bullying curriculum, school districts should take advantage of the current climate and talk about the Dharun Ravi trial and the newly released documentary, “Bully.”

L.S. and R.S. o/b/o S.S. v. Mt. Olive Board of Education (D.N.J. Feb. 25, 2011) is one of those cases that I think about from time to time because I spoke with some of the people who were connected with this case on an unrelated special education matter. Now when I think of L.S. v. Mount Olive, I can match some of the names with their faces.

It has now been one year since the court issued an opinion in this case — and this is a good time as any to discuss what happened.

Ms. Strahl is an 11th grade English teacher at Mt. Olive High School in Mt. Olive, New Jersey. In 2009, Ms. Strahl had her 11th grade class read “The Catcher in the Rye.” Also helping the class learn their lessons was Mr. Bosch, a special education instructor.

As an exercise in writing and analytical thinking, Ms. Strahl gave her class an assignment: write a psychological evaluation of Holden Caulfield, the protagonist of “The Catcher in the Rye.” To help the students with their assignment, Mr. Bosch sought to obtain a copy of a psychological evaluation report to distribute to the class and use as a template. Mr. Bosch visited Mr. Johnson, the school’s social worker, to see about obtaining a copy of a sample psychological evaluation report.

“Shockingly,” as the Court put it, Mr. Johnson pulled out a 10th grader’s psychiatric evaluation report and gave it to Mr. Bosch. The 10th grader, named S.S. in the case caption, had diabetes, anxiety, depression, and “a general phobia of attending school.” In fact, S.S. has had years of home instruction. (see p. 4) Mr. Johnson told Mr. Bosch to redact S.S.’s personally identifiable information before distribution. (see p. 5)

Mr. Bosch redacted S.S.’s name and address. But he did not redact S.S.’s age, religion, grade, family members, physical conditions, past medical and psychiatric history, exams, and diagnoses. Also NOT redacted was an indication that S.S. had been on home instruction in the past. (see p. 5)

After Mr. Bosch distributed S.S.’s “redacted” psychiatric evaluation report to the 17 students in Ms. Strahl’s English class, a friend of S.S. read the psychiatric evaluation report and wondered, “Is this S.S.?” The psychiatric evaluation report apparently contained sufficient information for the friend to identify S.S. as the subject of the evaluation report. The friend asked Mr. Bosch if the subject of the evaluation was S.S. (see p. 5)

Mr Bosch denied that it was S.S. (see p. 5)

Ironically, S.S.’s parents were meeting with school officials on the same day S.S.’s psychiatric evaluation was distributed to the class. (see p. 5)

S.S.’s friend happened to see S.S.’s parents after class. He walked up to them and gave them his copy of the redacted psychiatric evaluation he just received in class. (see p. 6)

S.S.’s parents immediately conferred with school personnel, and school personnel subsequently “collected and destroyed” all of the copies that had been distributed to the students in Ms. Strahl’s class. (see p. 6)

On the following day, S.S.’s parents filed a complaint with the New Jersey Department of Education, alleging that Mt. Olive breached S.S.’s confidentiality. The Department issued a report and found that Mt. Olive “district personnel are uninformed of the importance of maintaining the privacy of potentially disabled students and the confidentiality of the records of those students.” (see p. 6)

Several months later, S.S.’s parents filed a complaint in federal court and named as defendants the Board of Education, the superintendent, the principal, the director of special education, Ms. Strahl, Mr. Johnson, and Mr. Bosch, under various legal theories including the 1st Amendment, the 4th Amendment, the Constitutional Right of Privacy, FERPA, HIPPA, IDEA, 1983, and State law.

While the Court dismissed most of the claims, it did find that Mr. Johnson and Mr. Bosch were liable under Section 1983 and the New Jersey Constitution for violating S.S.’s federal and state constitutional right to privacy.

As of this writing, this case is still pending to determine the amount of damages that should be awarded to the plaintiffs.

If anything, this case teaches nothing except the patently obvious: student records are confidential and school personnel shouldn’t distribute student records to the public.

I just conducted a keyword search for psychological evaluation reports on the internet, and there are quite a few sample reports available online that would have been just fine for high school students who need a template. Obtaining an actual psychological evaluation report from the school’s files for class distribution was not only unlawful, it was completely unnecessary given that students could have downloaded sample reports online. I wonder what Holden Caulfield would have said about this.

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.

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.

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.

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.

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.