Fort Calhoun 2013 14

Fort Calhoun 2013-14 Inservice Karen Haase Harding & Shultz (402) 434-3000

khaase@hslegalfirm.com H & S School Law @KarenHaase

Today!  Reporting Child Abuse and Neglect  Disabled students and extracurricular activities  Custody disputes and subpoenas  Technology update

Reporting Abuse and Neglect

The Penn State Scandal  In Nebraska, every adult IS a mandatory reporter.

What is Child Abuse? 28-710 Knowingly, intentionally, or negligently causing a child to be: (a) Placed in a situation that endangers his or her life or physical or mental health; (b) Cruelly confined or cruelly punished; (c) Deprived of necessary food, clothing, shelter, or care; (d) Left unattended in a motor vehicle if such minor child is six years of age or younger (e) Placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions; or (f) Placed in a situation to be sexually abused.

Educate Yourself About Signs of Abuse  Many good sources  “The Role of Educators in Preventing and Responding to Child Abuse and Neglect” from U.S. Dept. of HHS  http://www.childwelfare.gov/pubs/user manuals/educator/educator.pdf at https://www.childwelfare.gov/

Child Abuse

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Standard for police arrest without a warrant Has knowledge, based on information which is reasonably trustworthy under the circumstances, which justifies the person’s prudent belief that abuse and neglect has or is likely to occur

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 28-711 (1) When any . . . school employee . . . any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect . . . he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number

Neb. Rev. Stat. 79-293 (1) The principal of a school or the principal's designee shall notify as soon as possible the appropriate law enforcement authorities . . . of any act of the student described in section 79267 which the principal or designee knows or suspects is a violation of the Nebraska Criminal Code.

Keep in Mind:  Only 1/3 of abuse gets reported  Reasonable ≠ true  Adult abusers groom adults as well as kids  If in doubt, report!

Cases Prosecuting Educators

Commonwealth v. Allen (Ky. 1998)  Teachers suspected fellow teacher  Told principal, who did not report  Teacher abused third student, assistant principal reported  Teacher charged with failure to report  Kentucky Supreme Court affirmed conviction

Commonwealth v. Allen (Ky. 1998)  What about multiple reports?

“In this world where imperfections abound, it is not illogical or inefficient for the legislature to require every individual entrusted to the care and supervision of children to be required to report crimes against those children”

Pesce v. J. Sterling Morton High Sch. (7th Cir. 1987)  School Psych contacted by student  Referred to private therapist  Decided to maintain student’s confidentiality until student agreed to allow report  Superintendent suspended for 5 days and demoted

Pesce v. J. Sterling Morton High Sch. (7th Cir. 1987)  Psych sued claiming violations of 1st, 4th, and 14th Amendments  Illinois statute: Any . . . school personnel . having reasonable cause to believe a child known to them in their professional or official capacity may be an abused or a neglected child shall immediately report or cause a report to be made to the Department [of Children and Family Services].

Melleady v. Blake (Dist. N.J. 2011)  Parents sued after kids removed from their home; Defendants claimed immunity  Ct: reporters do not have absolute immunity  Ct: Test is whether a reasonable person would have reasonable cause to believe that a child has been abused

Immunity From Liability – 28-716 Any person participating in an investigation or the making of a report of child abuse or neglect required by law or participating in a judicial proceeding resulting therefrom shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements. 

Criminal Penalties In addition to any ethical and social obligations and penalties, the failure to report child abuse or neglect as required by law subjects you to up to 3 months in jail, a $500 fine, or both.

Report from HHS The person in charge of a school making a legally mandated report of child abuse or neglect shall receive a summary of the findings of and actions taken by the department in response to the report upon request. The amount of detail such summary contains shall depend on the source of the report of child abuse or neglect and shall be established by regulations of the department.

Our Recommendations  Reporting peer abuse • If sex assault involved: report • If physical assault on campus: investigate; document; use discretion • If physical assault off campus: document; use discretion  Call before you conduct your investigation  Failure to report not in rule 27

Disabled Students & Extracurriculars

Laws in Effect • • • •

IDEA Section 504 ADA Regulations

OCR’s "Dear Colleague" Letter (1/25/13)

 OCR issued Dear Colleague letter on 1/25/13  Does not change the law or the regulations  Indicates an area of increased attention  Plaintiffs’ lawyers take their cues from OCR

What are we talking about?

“Extracurricular athletics – which include club, intramural, or interscholastic (e.g., freshman, junior varsity, varsity) athletics at all education levels – are an important component of an overall education program”

What are we talking about?  OCR’s focus here is on athletics  Principles apply to all activities • Clubs • Fine arts • Before & after school programs • Field trips  Applies to colleges as well

Maryville City (TN 1996)

 Baseball tryouts ‾ Student has Tourette's ‾ Coach evaluated on speed, balance, coordination, catching, hitting, etc. ‾ Two openings on team, student finished 8/14

Maryville City (TN 1996)

 Parents argued that coach knew of behavioral issues and discriminated against student  OCR ‾ Coach used clear metrics ‾ Student had “equal opportunity” ‾ No evidence of discrimination other than allegations

Ind Sch Dist 12,v. Minn Dep Ed (Minn. 2010)

 5th-grader autism & Tourette syndrome  Parents requested supplementary aids and services for student to participate in extracurricular/nonacademic activities: • adult supervision after the activity until Student could be picked up • access to cell phone during the activity • ability to miss some games/practices to manage health concerns/stress

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Student had panic attacks  Participated in swim team  Parents requested that she be allowed to leave the pool during practice and competitions

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Court: There is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions

S.S. v. Witesboro Cent. Sch. Dist.

(NY 2012)

 Ability to enter and stay in the pool is an essential requirement of being a swim team member  Allowing the student to do otherwise would fundamentally alter the nature of the swim team program

Raytown (MO) C-2 Sch Dist, 53 IDELR 239 (OCR 2009)

 6 year old with autism  Parent wanted him to stay in aftercare program  Program excluded students who required toileting assistance, a separate location due to behavioral issues, and one-to-one assistance

Raytown (MO) C-2 Sch Dist, 53 IDELR 239 (OCR 2009)

 District: having additional assistance available for BD students fundamentally altered the program  OCR district's rationale a pretext for discrimination

Raytown (MO) C-2 Sch Dist, 53 IDELR 239 (OCR 2009)

 Adding “supervision and services does not fundamentally alter the nature of a program designed to provide supervision for children,"  Children with disabilities cannot be categorically excluded from voluntary day care programs run by public school districts

Technology Issues

Stacey the Drunken Pirate

Snyder v. Millersville Univ. ( D. Ct. Penn. 2008)

 Student teacher urged students to visit her MySpace Page • comments criticizing her supervisor • photograph of her wearing a pirate hat and drinking from a plastic cup with the caption “drunken pirate”  School refused to let her complete student teaching; couldn’t graduate without student-teaching practicum

Snyder v. Millersville Univ. ( D. Ct. Penn. 2008)

 First tried to sue school, case dismissed  Then sued university claiming violation of First Amendment  Court: No protection under First Amendment because postings dealt only with purely personal matters, not issues of public concern

Remember the Warnings  Keep Separate Personal and Professional Pages/Feeds/etc.  Do not friend students (unless you have independent relationship with kid)  Think twice, post once  Update only when appropriate  Disable • Tagging and Geo-tagging • Friends of friends accessing photos • Friend Facebook

Fort Calhoun 2013-14 Inservice Karen Haase Harding & Shultz (402) 434-3000

khaase@hslegalfirm.com H & S School Law @KarenHaase