A New Hampshire school district recently eliminated dodgeball and other “human targeting” activities, citing concerns that such games foster violence and bullying. The Windham school board voted 4-1 in favor of removing the game from the gym class curriculum after parents allegedly complained that their children were being bullied during the game.  In particular, Windham’s superintendent noted that such games where “inconsistent” with the districts efforts to encourage respect among students. The meeting took place March 19^th and marked what is believed to be the first district in New Hampshire to ban such activities.  However, the National Association for Sport and Physical Education (“NASPE”) released a position statement in 2006, finding that dodgeball was not an appropriate game for K-12 students, stating that such activities do not permit complete participation from every student, particularly those who may be less agile then their peers. The NASPE found that “[t]he students who are eliminated first in dodgeball are typically the ones who most need to be active and practice their skills. Many times these students are also the ones with the least amount of confidence in their physical abilities.” An activity encouraging the elimination of “weaker players” first is contrary to the goals of building student self-confidence. However, others have criticized the school board’s decision as overly protective. Many have noted that most kids enjoy playing dodgeball and the use of soft Nerf balls apparently addresses many of the safety concerns originally posed by the game.

In a 2001 article, the New York Times noted the increasing number of schools that were enacting bans against “aggressive games” such as dodgeball. The article stated that an Austin, Texas school district was the first to ban dodgeball finding that it was too violent for school children. Additionally, schools in Florida, New York, Maryland and Massachusetts had enacted bans or some means of discouraging such games.

If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516-357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

Respondent, John Wiley & Sons, Inc., (“Wiley”) a textbook publisher, assigns its publication and print rights to its wholly owned foreign subsidiary in order to sell foreign editions of their textbooks abroad. Petitioner, Kirtsaeng, asked friends and family in Thailand to purchase and ship the foreign editions to him, in the U.S., where he proceeded to sell them at significantly discounted prices, in comparison to same textbooks sold in the U.S. After learning of this, Wiley filed suit alleging violations of §106(3) and §602 of the Copyright Act. Kirtsaeng responded by asserting that because the books were legitimately acquired and lawfully made, the “first sale” doctrine permits their subsequent resale pursuant to §109(a).

The Supreme Court was confronted with determining the extent to which a copyright holder is protected when products that are made and purchased outside the U.S. are resold within the U.S. absent the manufacturer’s permission. In making its determination the Court examined what the language of §109(a) requires when it states “lawfully made under this title.” Wiley asserted that language of §109(a) permits a geographical interpretation, limiting the application of the “first sale” doctrine to copies made in territories subject to the Copyright Act. The Court ultimately held that “lawfully made under this title” simply means “in accordance with” or “in compliance with” the Copyright Act. In particular, the court noted that a geographical interpretation of the language would impose greater linguistic hurdles and in the interest of “simplicity and coherence” a nongeographical reading would be applied.

Construing the language in this manner offers greater advantages to consumers who now benefit from reduced prices and greater options in making purchases. However, the Court’s ruling has received some sharp criticism by those arguing that the decision will invariably harm businesses and consumers globally as there will now be a disincentive for U.S. publishers to manufacture foreign editions of various publications.  Justice Breyer authored the majority opinion, while Justice Ginsburg, Justice Kagan, and Justice Alito dissented.

If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516-357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

Recently a student at Park Elementary School in Baltimore, Maryland, was suspended after munching a pastry snack into a gun-like shape and allegedly saying “bang, bang.” The 7-year-old boy received a two day suspension as a result of the incident and his permanent school record will include a reference to the matter.  This is not the first time that actions, normally considered to be harmless childhood games, have resulted in reprimand and suspension.  In the Washington area two children were suspended after pointing their fingers like a gun and in Pennsylvania a 5-year-old girl was suspended for bragging about shooting her “Hello Kitty” bubble gun.  Another Maryland school recently lifted the suspension of a 6-year-old boy after he said “pow” and shaped his fingers like a gun. The incident was marked in his permanent record but the record has since been cleared.

School Safety has become of paramount concern for both school officials and parents. Heightened awareness of violence in schools, particularly with regard to school bullying, has led many districts to implement professional training for staff members and detailed codes of conduct for students. Such actions are aimed at fostering a school atmosphere encouraging respectful treatment among classmates and a safe learning environment. However, schools are faced with the daunting task of striking an adequate balance between allowing children to engage in imaginary games and ensuring student safety. It can be difficult to explain to a young child why pointing their fingers like a gun is in appropriate when in the child’s mind they were simply trying to save the world from an alien invasion. Educating staff members on how to properly proceed in such situations can prove invaluable in creating a safer and more enjoyable learning environment as well as avoiding potential lawsuits.

If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516-357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

In order to draw attention to the matter and publicize the issues faced by their daughter, Coy’s parents have sought national and local media attention.  A letter from the school to TLDEF expresses the district’s belief that their decision was necessary to address “other students in the building, their parents, and the future impact a boy with male genitals using a girls’ bathroom would have as Coy grew older” fearing that an uncomfortable learning environment would arise as the students matured. Conversely, Coy’s parents are concerned that the policy set forth by the school will only serve to subject Coy to bullying and harassment in the future.

Although some schools have enacted detailed policies to meet the needs of transgendered students others have failed to properly implement changes that effectively address transgender issues.  Much of the case law thus far has focused on challenges to dress code requirements. For instance, in Doe v. Yunits, 2000 WL 33162199 (Mass. Super. Oct. 11, 2000), a fifteen-year old transgender student was prohibited from wearing female attire and was barred from attending school unless she abided by the administration’s demand that she wear male clothing. In response to her school’s position Doe filed a claim asserting that her “Gender Identity Disorder” qualified as a disability and therefore, the school was discriminating against her on that basis. Doe also argued that the school prohibiting a student, who was recognized as a male at birth, from wearing clothing that would otherwise be unobjectionable if worn by a female student, amounted to sex discrimination. Additionally, Doe argued that the school’s requirement unconstitutionally infringed upon her freedom of expression because selecting her attire was a reflection of her identity.  Ultimately, a Massachusetts district court held that the school’s policy unfairly discriminated against Doe as she was treated disproportionately compared to other female students wearing the same attire. However, the court noted that Doe’s disability claim was invalid as it does not fall under the umbrella of the Americans with Disabilities Act. Doe dropped her freedom of expression claim and therefore the Court did not reach the merits of that argument.

In Youngblood v. School Bd. of Hillsborough Cnty, Case No. 8:02-CV-1089-T-24MAP, (M.D. Fla. Sept. 25, 2002), a transgendered student preferring to dress in men’s clothing had been barred from taking her yearbook photo unless she ascribed to the school’s dress-code policy. The school required that female student’s wear a scoopneck drape while male students had to wear a white shirt, tie, and dark jacket. Unfortunately, as a result of the school’s requirement, Youngblood was unable to take her senior portrait and was consequently excluded from the yearbook. Youngblood filed suit claiming that the school district infringed on her freedom of expression and discriminated against her on the basis of her sex. The Court dismissed Youngblood’s discrimination claim finding that the argument set forth by Youngblood could be cured if the school simply permitted female students to wear less feminine attire. Youngblood’s freedom of expression claim was also dismissed but ultimately, the administration agreed that female students would no longer be required to wear the drape for senior portraits.

Transgender youth are often subject to a school day characterized by harassment and discrimination. In response several states have passed laws barring such discrimination in public schools. Title IX of the Education Amendments Act of 1972 may also serve as a means of recourse for transgendered students as the statute prohibits harassment based on gender identity in educational programs that are awarded federal funds.  In order to better address the needs of transgendered students, schools would be well served to develop a detailed policy that adequately addresses issues often faced by transgendered youth.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

In a 2011 case the United States District Court for the Eastern District of Pennsylvania held that the bracelets were merely a means of raising breast cancer awareness among the younger generations and cannot reasonably be considered lewd or vulgar. In making its determination, the Court cited to Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986), a landmark case permitting restrictions on student speech when it is deemed lewd, vulgar or profane. Additionally, the Court found that the bracelet’s message did not create a material or substantial disruption under the Tinker standard, set forth in the seminal case of Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). In Tinker the Supreme Court held that a school district unconstitutionally infringed on the First Amendment rights of students who were suspended for wearing black armbands in silent protest of U.S. involvement in Vietnam.

Recently the U.S. Court of Appeals for the 3^rd Circuit heard oral argument reviewing the decision of the District Court. On Appeal, the Easton Area School District claimed that the slogan inscribed on the bracelet is inappropriate for middle school students and the ban was meant to encourage decorum and civility in the classroom. In particular, those arguing to uphold the ban claimed that middle school boys were simply too immature to handle such a message.

A panel of three judges heard the appeal in April but ultimately a rehearing was ordered before the entire Court. The Court’s decision could have significant implications as to how school officials should interpret student speech when language utilized can be interpreted in a multitude of ways and where the message is tied to political or social issues.

If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516-357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post. 

A concerned parent complained of Ms. Sweet’s electioneering in September alleging that students were forced to sign a pledge card obligating them to vote for President Obama and other Democratic candidates on the ticket for the November election.  The College released a statement detailing the results of the investigation which found that Ms. Sweet strongly encouraged or required that students sign a pledge card stating: “I pledge to vote for President Obama and Democrats up and down the ticket”. Additionally, the investigation revealed that Ms. Sweet’s actions allegedly caused significant discomfort among students as they felt that their Professor’s campaigning amounted to an invasion of privacy. Students also feared that failure or refusal to sign a pledge card would have a detrimental impact on their grade.

Ms. Sweet has been placed on paid leave since September pending the outcome of the case. However, investigators urge that Ms. Sweet be terminated from her position as tenured professor. Ms. Sweet will have the opportunity to respond to the investigator’s conclusions and recommendations.

If your institution has any further questions or concerns about education law related matters, please email Cynthia Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

The school responded by barring Grisham from classroom teaching for one year and requiring that he attend sensitivity training. Grisham, who is also the head football coach, will be assigned “other academic duties” in place of traditional classroom instruction. Grisham will be required to attend monthly meetings with Mark Butler, the school’s personnel director, in order to ensure that he is meeting the obligations set forth by the school. The Board of Education did not address Grisham’s coaching position when determining how to deal with the situation.

The seminal case addressing the First Amendment rights of public school teachers is Pickering v. Board of Education, 391 U.S. 563 (1968). The case involved a teacher who submitted letters to a local newspaper criticizing the school board’s allocation of funds. The Court held that public employee’s do not forfeit their First Amendment rights when commenting on matters of public concern. However, the Court used a balancing test taking into account “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”  The Court ultimately determined that the teacher’s letter did not undermine the operation of the school or interfere with the teacher’s ability to perform his job duties. The holding in Pickering was further elaborated upon in Connick v. Myers,  461 U.S. 138, were the Court noted that a perquisite to performing the Pickering balancing test was the determination of whether the speech in question really involved a matter of public concern. In this respect, the “content, form, and context” of the statement must be considered.

However, lack of further guidance from the Supreme Court has resulted in disparate application of the Pickering and Connick standard among the Circuits. In particular, some courts extended the reasoning of Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) in which the Supreme Court determined that in assessing restrictions on student speech the court must consider whether the district had “legitimate pedagogical concerns” in limiting the speech.  Although, originally applied only to constraints on remarks made by students, courts have further extended the reasoning to statements made by teachers as well.

In 2006, the Supreme Court held that the Pickering balancing test should only be applied when a public employee makes statements as a private citizen.  In Garcetti v. Ceballos, 547 U.S. 410 (2006) the Court stated that “[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” However, Garcetti v. Ceballos involved comments made by a district attorney and the Court explicitly refused to determine whether their holding applied to public school teachers.

Regardless of the standard utilized, it is unlikely that the comments made by Girsham would qualify for First Amendment protection. In particular, the inflammatory comments regarding homosexuals would certainly fall outside the purview of protected speech.

If your institution has any further questions or concerns about education law related matters, please email Cynthia Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

The Pledge is recited once a week on Mondays and previously it has been translated into both French and Spanish. While the school faced a storm of debate after the Spanish version was delivered, the recent translation into Arabic has ignited a firestorm from parents and community members. The school recognized that the decision to allow students to recite the Pledge in Arabic would not be well received by everyone but the bombardment of criticism may have been more than expected.  In particular, an Arabic translation would have substituted “one nation under God” with “one nation under Allah.”  One individual objecting to the clubs actions believes that it was a malicious attempt to stir up controversy by targeting a group that would clearly object. Other community members applauded the translation and one student notes that regardless of the language used the content and meaning of the Pledge remains.  The club also anticipates translating the Pledge into Korean, American Sign Language, and possibly Chinese.

The School may have the option of prohibiting the club from further translation if it deems it necessary to avoid future battles with the community. As we discussed in a previous blog post, Supreme Court precedent demonstrates that school officials may regulate student speech that “members of the public might reasonably perceive to bear the imprimatur of the school.”^[1]  However, school officials may only place reasonable restrictions on speech that is considered to be school-sponsored and the reasonableness of such constraints rests on the schools ability to articulate a legitimate academic concern.

If your institution has any further questions or concerns about education law related matters, please email James G. Ryan at jryan@cullenanddykman.com or call him at (516) 357-3750.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.        

1. ^[1] Hazelwood Sch. Dist. v. Kuhlmeier 484 U.S. 260, 271(1988). ↩

Officials at the Education Department have stated that the directive is not aimed at altering the fundamental aspects of traditional sports but rather seeks to ensure that students who are able to compete with their colleagues are not excluded based on their disability.  Seth Galanter, Acting Assistant Secretary for Civil Rights of the Department of Education, stated that “reasonable modifications” must be implement that would allow disabled students to participate. For instance, a deaf student wishing to join the school’s track and field team will be at a disadvantage as he or she will not be able to hear the starter pistol. However, the school can nevertheless make “reasonable modifications” by simply installing a flashing light that would indicate the start of the race. Schools that fail to take the appropriate steps to accommodate disabled students risk losing federal funding.

Twelve states have already instituted programs aimed at addressing the needs of disabled students in athletic events. In 2008 Maryland passed a law requiring that students with disabilities be given an equal opportunity to engage in sports programs.  Additionally, a 2010 Government Accountability Office (GOA) investigation uncovered disproportionately low participation rates among disabled students. Disability rights advocates have stated that the GOA investigation was of monumental importance as it marked the first time that this gap in participation had been statistically recognized. The Education department has not provided a definite timetable for when schools must comply with guidance and the source of funding to create or modify programs remains uncertain.

If your institution has any further questions or concerns about education law related matters, please email James G. Ryan at jryan@cullenanddykman.com or call him at (516) 357-3750.

A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for help with this post.

Students had been rehearsing the play since September and were eagerly awaiting a February debut. Originally school officials believed they could not change or remove the potentially offensive content due to copyright laws. However, a deal has been worked out with the publisher that would allow them to make changes to satisfy community standards. ^[4]

The issue of students’ rights when engaging in extracurricular activities piggy backs off our earlier post regarding students’ first amendment rights in general. Legal precedent distinguishes between student speech occurring during extracurricular activities and private student expression arising out of non-curricular activity. In Hazelwood Sch. Dist. v. Kuhlmeier, the Supreme Court held that school officials may exercise authority over student speech that “members of the public might reasonably perceive to bear the imprimatur of the school.” ^[5] Specifically, the Court found that student activities such as theatrical productions can be deemed part of the school curriculum if they are supervised by faculty and are intended to instruct students in a particular skill. ^[6] Under Hazelwood, student expression that occurs in the context of activities associated with instruction or curriculum can be considered school-sponsored speech and thus susceptible to reasonable regulation by the school. The reasonableness of the restriction rests on whether the school has articulated a sufficient or legitimate academic concern. The Court stated that “[i]t is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so directly and sharply implicate[d] as to require judicial intervention to protect students’ constitutional rights”^[7]

If your institution has any further questions or concerns about education law related matters, please email Cynthia Augello at caugello@cullenanddykman.com or call her at (516) 357-3753.

A special thanks to Cynthia Thomas a law clerk at Cullen and Dykman LLP, for help with this post.

1. ^[1] Derek Jensen, Elvis Play Generates Controversy at Utah High School, Reuters (Jan. 3, 2013) available at http://www.reuters.com/article/2013/01/04/entertainment-us-usa-elvis-utah-idUSBRE90302720130104 ↩
2. ^[2] Id. ↩
3. ^[3] Ray Parker, ‘All Shook Up’ to Racy for District; Herriman High Show Cancelled, The Salt Lake Tribune (Jan. 2, 2013) available at http://www.sltrib.com/sltrib/news/55560130-78/shook-elvis-musical-policy.html.csp ↩
4. ^[4] Jensen, supra note 1 ↩
5. ^[5] 484 U.S. 260, 271(1988). ↩
6. ^[6] Id. (internal citation marks omitted) ↩
7. ^[7] Id. at 273. ↩