VASSP School Law Institute June 2007

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2007 School Law Issues VASSP Law Conference: 

2007 School Law Issues VASSP Law Conference

HB 1707 Public school contract employees; requires school boards to obtain data on convictions of crimes. : 

HB 1707 Public school contract employees; requires school boards to obtain data on convictions of crimes. C. As a condition of awarding a contract for the provision of services that require the contractor or his employees to have direct contact with students on school property during regular school hours or during school-sponsored activities, the school board shall require the contractor to provide certification that all persons who will provide such services have not been convicted of a felony or any offense involving the sexual molestation or physical or sexual abuse or rape of a child.

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This subsection shall not apply to a contractor or his employees providing services to a school division in an emergency or exceptional situation, such as when student health or safety is endangered or when repairs are needed on an urgent basis to ensure that school facilities are safe and habitable, when it is reasonably anticipated that the contractor or his employees will have no direct contact with students.

HB 1916 Family life education; requires Bd. of Education to incorporate instruction on dating violence, etc.: 

HB 1916 Family life education; requires Bd. of Education to incorporate instruction on dating violence, etc. § 22.1-207.1. Family life education. The Board of Education shall develop by December 1, 1987, standards of learning and curriculum guidelines for a comprehensive, sequential family life education curriculum in grades K through 12. Such curriculum guidelines shall include instruction as appropriate for the age of the student in family living and community relationships, abstinence education, the value of postponing sexual activity, the benefits of adoption as a positive choice in the event of an unwanted pregnancy, human sexuality, human reproduction, dating violence, the characteristics of abusive relationships, steps to take to avoid sexual assault, and the availability of counseling and legal resources, and, in the event of such sexual assault, the importance of immediate medical attention and advice, as well as the requirements of the law and the etiology, prevention and effects of sexually transmitted diseases.

HB 1962 Students with disabilities; provides due process procedures.: 

HB 1962 Students with disabilities; provides due process procedures. B. The Board of Education shall prescribe procedures to afford due process to children with disabilities and their parents or guardians and to school divisions in resolving disputes as to program placements, individualized education programs, tuition eligibility and other matters as defined in state or federal statutes or regulations. These procedures shall encourage the use of mediation as an informal means of resolving such disputes. Mediation shall not, however, be used to deny or delay the due process rights of parents or guardians. The procedures shall require that all testimony be given under oath or affirmation administered by the hearing officer.

HB 1978 Standards of Quality; school boards to report number of career & technical education completers.: 

HB 1978 Standards of Quality; school boards to report number of career & technical education completers. School boards shall report annually to the Board of Education the number of industry certifications obtained, state licensure examinations passed, and the number of career and technical education completers that graduated. These numbers shall be reported as categories on the School Performance Report Card. For the purposes of this subdivision, a "career and technical education completer" is a student who has met the requirements for a career and technical concentration or specialization and all requirements for high school graduation or an approved alternative education program.

HB 2039 Diploma, technical; Board of Education to establish requirements: 

HB 2039 Diploma, technical; Board of Education to establish requirements 3. Establish the requirements for a technical diploma. This diploma shall meet or exceed the requirements of a standard diploma and will include a concentration in career and technical education, as established in Board regulations. The Board may develop or designate assessments in career and technical education for the purposes of awarding verified credit pursuant to subdivision 6

HB 2214 Childhood obesity; Sup. of Public Instruction & Health Commissioner to work together to combat.: 

HB 2214 Childhood obesity; Sup. of Public Instruction & Health Commissioner to work together to combat. § 22.1-23. Duties in general. The Superintendent of Public Instruction shall: 1. Serve as secretary of the Board of Education; 2. Provide such assistance in his office as shall be necessary for the proper and uniform enforcement of the provisions of the school laws in cooperation with the local school authorities; 3. Prepare and furnish such forms for attendance officers, teachers and other school officials as are required by law; 4. (Expires July 1, 2010) At least annually, survey all local school divisions to identify critical shortages of teachers and administrative personnel by geographic area, by school division, or by subject matter, and report such critical shortages to each local school division and to the Virginia Retirement System; and 5. Along with the State Health Commissioner, work to combat childhood obesity and other chronic health conditions that affect school-age children; and 6. Perform such other duties as the Board of Education may prescribe.

HB 2271 School boards; required to annually review school crisis, emergency management, etc. response plans.: 

HB 2271 School boards; required to annually review school crisis, emergency management, etc. response plans. D. Each school board shall ensure that every school that it supervises shall develop a written school crisis, emergency management, and medical emergency response plan, consistent with the definition provided in this section. The Department of Education and the Virginia Center for School Safety shall provide technical assistance to the school divisions of the Commonwealth in the development of the school crisis, emergency management, and medical emergency response plans that describe the components of a medical emergency response plan developed in coordination with local emergency medical services providers, the training of school personnel and students to respond to a life-threatening emergency, and the equipment required for this emergency response. The local school board shall annually review the written school crisis, emergency management, and medical emergency response plans. The local school board shall have the authority to withhold or limit the review of any security plans and specific vulnerability assessment components as provided in subdivision 7 of § 2.2-3705.2. The local school division superintendent shall certify this review in writing to the Virginia Center on School Safety no later than August 31 of each year.

HB 2302 Nonpublic schools; school boards may enter into agreements therewith for transportation services.: 

HB 2302 Nonpublic schools; school boards may enter into agreements therewith for transportation services. § 22.1-176.1. Agreements to provide transportation for nonpublic school pupils. Local school boards may enter into agreements with nonpublic schools within the school division to provide student transportation to and from such schools under such terms and conditions as the local school boards deem appropriate and responsible. [ Such terms may include, but are not limited to, arrangements relating to cost-sharing, fees, insurance, and liability. ]

HB 2344 Sexual offenses; prohibiting entry of those convicted onto school property, penalty.: 

HB 2344 Sexual offenses; prohibiting entry of those convicted onto school property, penalty. § 18.2-370.5. Sex offenses prohibiting entry onto school property; penalty.  A. Every adult who is convicted of a sexually violent offense, as defined in § 9.1-902, shall be prohibited from entering and being present, during school hours, upon any property he knows or has reason to know is a public or private elementary or secondary school or child day center property, unless (i) he is a lawfully registered and qualified voter, and is coming upon such property solely for purposes of casting his vote; (ii) he is a student enrolled at the school; or (iii) he has obtained a court order allowing him to enter and be present upon such property, and is in compliance with terms and conditions of the order. A violation of this section is punishable as a Class 6 felony.

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B. Every adult who is prohibited from entering upon school or child day center property pursuant to subsection A may after notice to the attorney for the Commonwealth and either (i) the proprietor of the child day center, (ii) the superintendent of public instruction of the school division in which the school is located, or (iii) the chief administrator of the school if such school is not a public school, petition the juvenile and domestic relations district court or the circuit court in the county or city where the school or child day center is located for permission to enter such property. For good cause shown, the court may issue an order permitting the petitioner to enter and be present on such property, subject to whatever restrictions of area, reasons for being present, or time limits the court deems appropriate.

What does “during school hours” mean?: 

What does “during school hours” mean? There is no statutory or caselaw guidance that I am aware of, on the definition of "during school hours."  My best guess, based on what I believe to be the legislative intent of protecting our students, would be that the term means at any time, whether between the hours of 8 to 4 or not, that the building is open to students for some school function, whether curriculum or extra-curricular. I have sent an e-mail to the Attorney General's office in Richmond asking them for whatever guidance they can provide.  When I hear something back from them I will forward it to you. Michael Douchette, Lynchburg Commonwealth’s Attorney

HB 2631 Student records; limitations on access: 

HB 2631 Student records; limitations on access 4. The principal or his designee may disclose identifying information from a pupil's scholastic record for the purpose of furthering the ability of the juvenile justice system to effectively serve the pupil prior to adjudication. In addition to those agencies or personnel identified in subdivisions 5 and 7 of subsection A, the principal or his designee may disclose identifying information from a pupil's scholastic record to attorneys for the Commonwealth, court services units, juvenile detention centers or group homes, mental and medical health agencies, state and local children and family service agencies, and the Department of Juvenile Justice and to the staff of such agencies. Prior to disclosure of any such scholastic records, the persons to whom the records are to be disclosed shall certify in writing to the principal or his designee that the information will not be disclosed to any other party, except as provided under state law, without the prior written consent of the parent of the pupil or by such pupil if the pupil is eighteen years of age or older.

HB 2893 Student information; public schools & public institutions of higher education may retain copies : 

HB 2893 Student information; public schools & public institutions of higher education may retain copies § 22.1-3.1. Birth certificates required upon admission; required notice to the local law-enforcement agency. A. Except as otherwise provided in this subsection, no pupil shall be admitted for the first time to any public school in any school division in this Commonwealth unless the person enrolling the pupil shall present, upon admission, a certified copy of the pupil's birth record. The principal or his designee shall record the official state birth number from the pupil's birth record into the pupil's permanent school record and may retain a copy in the pupil's permanent school record. If a certified copy of the pupil's birth record cannot be obtained, the person so enrolling the pupil shall submit an affidavit setting forth the pupil's age and explaining the inability to present a certified copy of the birth record. If the school division cannot ascertain a child's age because of the lack of a birth certificate, the child shall nonetheless be admitted into the public schools if the division superintendent determines that the person submitting the affidavit presents information sufficient to estimate with reasonable certainty the age of such child.

SB 751 Diploma seal; Board of Education to establish criteria for excellence in civics education. : 

SB 751 Diploma seal; Board of Education to establish criteria for excellence in civics education. The Board shall also establish criteria for awarding a diploma seal for excellence in community service for the standard and advanced studies diplomas.  The Board shall consider including criteria for (i) the types of activities that shall qualify as community service; (ii) the number of hours required; and (iii) related requirements as it deems appropriate.

SB 795 Standards of Quality; changes in provisions. : 

SB 795 Standards of Quality; changes in provisions. Provides for the phasing out of the eighth grade cumulative history test in the 2007-2008 school year, and the implementation of the United States History to 1877, United States History: 1877 to the Present, and Civics and Economics tests in the 2008-2009 school year. Adds effective classroom management to the listing of professional development programs to be provided to teachers and principals. Requires local school divisions to post a current copy of the school division policies, including the Student Conduct Policy, on the local division's website while ensuring that printed copies of such policies are available, as needed, to citizens who do not have Internet access. Makes technical changes to Standards 1, 3, 4, 5, 6, and 7 of the Standards of Quality.

HB 1729 Maximum speed limit for school buses. : 

HB 1729 Maximum speed limit for school buses. Increases the maximum speed limit to 60 miles per hour for school buses traveling on interstates and highways where the speed limit is greater than 55 miles per hour.

HB 2035 Human papillomavirus vaccine; added as required vaccination. : 

HB 2035 Human papillomavirus vaccine; added as required vaccination. Requires females to receive three doses of properly spaced human papillomavirus (HPV) vaccine. The first dose shall be administered before the child enters the sixth grade. After having reviewed materials describing the link between the human papillomavirus and cervical cancer approved for such use by the Board of Health, a parent or guardian may elect for his daughter not to receive this vaccine. This bill contains a delayed effective date of October 1, 2008.

HB 2410 Amber Alert Programs; amends definition of an abducted child to include secondary school students.: 

HB 2410 Amber Alert Programs; amends definition of an abducted child to include secondary school students. Amends the definition of an "abducted child" to include a person who is enrolled in a secondary school in the Commonwealth regardless of age.

LEGAL ISSUES: A NATIONAL VIEW: 

LEGAL ISSUES: A NATIONAL VIEW

NCLB: 

NCLB The U. S. Department of Education has selected several states including NC, TN, Delaware, Ark, FL, and Ohio to change the way they measure student progress under NCLB. These states may now track how individual students perform in math and reading over time, known as a “growth model.”

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Most recently on May 25, the US DOE allowed Iowa to use a growth model. Iowa is interesting in that it still uses the norm referenced Iowa Test of Basic Skills as its assessment for NCLB. The change allows Iowa to compare test scores among students in a particular grade all the way through their academic careers. Until the change, 4th graders, for example, were compared to previous year 4th graders.

Off School Grounds and Technology: 

Off School Grounds and Technology Some school Boards have blocked sites such as MySpace and Facebook on school computers A student in Indianapolis was expelled for making explicit comments about a teacher on MySpace. A student in Pittsburgh was dismissed from the volleyball team for an internet message criticizing an art teacher. The student sued and and received $60,000 settlement. A cheerleader in Fort Worth was kicked off the squad for derogatory comments someone posted on her blog about other cheerleaders. She did not write it and was later reinstated to the team. USA Today 10/26/06

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A principal in Pennsylvania has sued students over an unflattering MySpace Profile. An assistant principal in Texas has sued over a MySpace Profile as well. Some teachers have sued students.

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There is some support for punishing students who post admissions of illegal activity (pictures drinking, doing drugs, etc.) or who post racist remarks or some that promote or predict violence, but not as much support to discipline when students vent about teachers. Courts are struggling in trying to find a balance between ensuring a safe environment while giving students their freedoms.

Kimberly Jessie, an associate at the law firm Bracewell Giuliani, made the following observations during a NSBA activity:: 

Kimberly Jessie, an associate at the law firm Bracewell Giuliani, made the following observations during a NSBA activity: Unless there is a “substantial disruption to the educational environment,” school leaders are limited in their ability to take any action if students post offensive or inappropriate material outside of school Recommends letting parents know that while schools may be limited in their ability to discipline such behavior, teachers have been successful in filing individual lawsuits against students and their parents Make sure that acceptable-use policies limit computer access to educational purposes only and prohibit access for personal uses “Policies should inform students [and their parents] that disciplinary action may be taken against them when their off-campus speech causes a substantial disruption to the educational environment or interferes with another student’s rights. Criminal action may be taken against students when their speech constitutes a true threat.”

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Virginia Code Ann. § 18.2-60 concerning threats states that if the threat is written, signed or unsigned, and contains a threat to kill or to do bodily injury to an individual or member of his/her family, it is a Class 6 felony. If the communication is oral and contains a threat to kill or do bodily harm to any elementary, middle, or high school employee and occurs on a school bus, school property, or during a school-sponsored activity, it is a Class 1 misdemeanor.

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Some states are passing or considering laws to crackdown on cyberbulling, behavior that involves students who taunt or insult peers on social Web sites or via instant messages. MySpace response to these efforts was provided by Hemanshu Nigam, chief security officer, who stated that “MySpace prohibits cyber bulling and tells users to report abuse to the company as well as parents and law enforcement.”

Communication Devices: 

Communication Devices  22.1-278.2 provides authority to local school divisions to regulate the use or possession of beepers, laser pointers, or other portable communication devices on school property or at school functions. Check school board policy.

Cellphones: 

Cellphones School officials in some Colorado high schools (Douglas and Jefferson Counties) are searching students’ cellphone messages when they suspect the students of cheating, drug abuse, or other school violations. They argue that school policies that allow them to search lockers, backpacks, and cars based on reasonable suspicion also applies to cellphones. The ACLU disagrees and says the searches go way beyond what the Supreme Court allows.

School Divisions and Cellphone Use: 

School Divisions and Cellphone Use New York City bans cellphones (as does Detroit and Philadelphia) The mayor and the schools chancellor argue that cellphone can’t be allowed on school property because they cause a range of problems that distract students from learning

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New York's 1.1-million-student school system has banned beepers and other communication devices since the late 1980s. But schools have long used an “out-of-sight, out-of-trouble” approach. Then, late last month, city officials began sending portable metal detectors every day to a random but small set of schools to keep out weapons. And the detectors have led to the confiscation of hundreds of cell phones. New York has one of the country's toughest policies on student cell phones. It also bans other electronic devices, such as iPods.

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Detroit bans cell phones, and a two-time violator will not get the phone back. Boston relied on a school-by-school approach until recently, when it changed the policy to let students have a phone, but only if it is turned off and out of sight. Los Angeles lets kids have cell phones, but they can use them only during lunch and breaks.

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A group of parents fighting New-York City's Mayor Bloomberg's ordinance against cell phone use in city schools just lost their case in a State Supreme court (May 2007). But they are willing to appeal to a higher level. "It's not over yet", they told a New York Sun reporter, underscoring their concern for their child's safety.

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A group of parents seeking to overturn Mayor Bloomberg's ban on cell phones in city schools is likely to appeal a state Supreme Court judge's decision yesterday to dismiss their lawsuit against the city. The group's lawyer, Norman Siegel, said he was disappointed, but vowed to continue to fight the city over the ban, which he has argued is unconstitutional.

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In the lawsuit, the plaintiffs had argued that the ban on the possession of cell phones violates the constitutional rights of students, although they had conceded that a ban on the use of phones in schools was justified. They have been supported by dozens of City Council members, along with the teachers union.

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The Court held that the Department of Education had a rational basis to adopt its Cell Phone Policy and that the policy does not violate any constitutional right of students or their parents.

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Students at many schools have said they defy the ban by keeping their phones stowed out of sight in pockets and purses. Others reportedly pay delis and other shops outside their schools to keep their phones while they are in school.

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The city has sought to reach a compromise with opponents of the ban with a proposal to build lockers outside schools where students could pay a small fee to store their phones during the day — an idea that has been criticized by some parents. A department spokesman, David Cantor, said several private vendors had expressed interest in building the lockers and that the department had "an eye toward implementing a pilot program in the next school year."

Florida Law: 

Florida Law Three years after Florida passed a unique law allowing students to carry phones on campus, school districts from the Panhandle to Palm Beach are considering some of the most extreme measures yet: penalties that put misusing a cell phone on par with stealing, devices that scramble phone signals inside the school building and pressure to persuade the Legislature to reverse its decision and allow a ban.

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"This was the worst law passed in my 30 years in education," said Michael Horne, principal of Manatee County's Southeast High School, where a student used a cell phone to snap photos of the Florida Comprehensive Assessment Test last year. "We're trying to educate kids, not trying to be cyber cell phone cops." The 2004 state law allowing cell phones - still the only one of its kind in the nation - was pitched as way to add security in an era of latchkey kids, school shootings and kidnappings.

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Parents and students initiated the campaign to permit cell phones in schools. Sen. Eveyln Lynn, R-Ormond Beach, who took up their cause, said lack of school enforcement is the problem, not the law. "Teachers are supposed to have eyes in the backs of their heads," Lynn said. "That's your responsibility when you're a teacher."

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One principal plans to spend nearly $100 to purchase either a cell phone jammer, a device that blocks all cell phone signals in the school or a single classroom, or a cell phone detector that lights up when a student's cell phone is on. One of his teachers recommended a wall paint that could block calls.

Beyond Cellphones: 

Beyond Cellphones Some schools are also targeting digital media players, such as iPods and Zunes as potential cheating devices Mountain View High School in Meridian, Idaho recently banned them when school officials realized some students were downloading formulas and other material Duke University began providing iPods to students three years ago to see how the devices could enhance learning

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Tim Dodd, director of Duke’s Center for Academic Integrity, said, “Trying to fight technology without a dialogue on values and expectations is a losing battle. I think there’s a kind of backdoor benefit here. As teachers are thinking about how technology has corrupted, they’re also thinking about ways it can be used productively.”

Turnitin.com: 

Turnitin.com A company that many schools use to help them combat plagiarism Students in Fairfax County are required to turn in papers which are checked and then maintained in an electronic archive for future comparisons Two students at McLean High School (two in Arizona) have filed a lawsuit in Virginia federal court saying archiving their papers is a violation of copyright law. Asking for $900,000 for copyright infringement (they registered their work before submitting)

Electronically Stored Information : 

Electronically Stored Information School divisions must have a system to archive email. They must be able to produce “electronically stored information” during the discovery process (the process in which opposing sides of a legal dispute must share evidence before trial). Emails between board members and with the superintendent and their constituents must be made available under FOIA.

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