School Law for Guidance Counselors

School Law For Guidance Counselors Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law

Counselor Privilege • Legally Legally, there is no school counselor privilege • Bradley T T. vv. Cent.

Cent Catholic High Sch., 264 Neb. 951 (2002)

Counselor’ss Notes Counselor • Confidential?

– Yes – Can be disclosed if counselor believes in best interest of kid. kid

• Discoverable?

– Yes

Sexting?

Sexting, v: (a combination of sex and texting) is the act of sending di sexually ll explicit li i messages or photos electronically, primarily between cell ll phones. h

Sexting? Material can be distributed via:

-Text messages -Downloads onto laptops/computers -E-mail -Downloads D l d onto t ii-pods/mp-3 d/ 3 players l -Social Networking Sites

How Common is Sexting? g  Sexually suggestive photos sent: – 20% overall –22% girls –11% young teen girls (ages 13-16) –18 % boys

How Common is Sexting? g Sexually suggestive messages sent: –39% of all teens –37% girls –40% 40% boys 48% of teens say they have received sexting ti photos h t or messages.

Serious Consequences: Jessica Logan

Criminal Implications Under Nebraska Law  NEB. REV. STAT. 28-813 : Class IV felony to

─ knowingly solicit, coax, entice, or lure ─ a child sixteen years of age or y younger g ─ by means of an electronic communication device ─ to t postt images i that th t would ld qualify lif as child pornography under state law

Criminal Implications Under Nebraska Law  Affirmative Defense:

─ the picture is only of the defendant;

─ ─ ─ ─ ─ ─ ─

or defendant was younger than 19 picture i is i off someone at least l 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND d f d defendant did didn’t ’ coerce taking ki or sending di

Practical Steps in Dealing with i Sexting S i in i Schools S When You Catch Kids Sexting

Custody Disputes: Stay Out of it!

• Refuse to offer opinions • Decline interviews with attorneys • Refuse service of subpoenas during school time • Consider motion to quash • Strictly observe FERPA

Custody Disputes: If you’re in it • Stick to your expertise – As an educator – Not a psychologist/social worker

Non-Custodial Parents and Special Education • Rule 51 defines “parents” broadly: foster parents parents, in loco parentis • Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147 (7th Cir. 2001)

Release of Children • FERPA: Non Non-custodial custodial parents have same rights as custodial – Unless U l th there iis evidence id off a llegally ll binding bi di document that specifically revokes rights.

(34 C.F.R. C F R 99.4) 99 4)

• Pauley v. Anchorage Sch. Dist., 31 P.3d 1284 (Ak (Ak. 2001)

Immigration Status

Reporting Abuse

Call the Abuse/Neglect Hotline at 1 800 652 1999 1-800-652-1999

Rule 19 defines “residence” residence as: …that place in which a person is actually domiciled, which is one’s established home and the place to which one intends to return when absent therefrom therefrom. It is the place where a person is actually living full-time as opposed to vacationing full-time, or visiting.

Out of District Placements (not by school) Is the student a state ward?

• If yes: 79-215(9) • If no: 79-215 (10)

State Wards: State Pays When 1. State ward placed out of district into home that is NOT maintained under ' 83-108.04 2. State ward placed in an institution that maintains an approved SpEd program and is not owned by the district 3 State 3.

St t ward d placed l d iin county t detention

In all other situations, district of residence pays • “District of residence” is district where h student t d t li lived d when h h he/she /h became a state ward.

• Unless HHS “determines” that student will not attend school in prior district, then student becomes resident of foster home.

Non Wards: Non-Wards: 1 Is student in residential placement to 1. receive education? a. If ““yes,” ” parents t pay. b. If “no,” go to question #2.

2 IIs residential 2. id ti l setting tti operated t d by b licensed service provider or enrolled in medical assistance program: a. If “yes” go to next slide. b. If “no,” parents pay.

Non Wards: Non-Wards: 3 If residential placement does NOT 3. operate interim-program school a.

b b.

the resident th id t school h l di district t i t contracts t t with the district in which such residential id ti l setting tti is i located l t d for f the th provision of all educational services, unless nless parent and resident district agree that education will be provided b the resident district by

Non Wards: Non-Wards: 4 If residential setting DOES 4. maintain an interim-program school h l a. b b.

the department pays resident id di district i retains i responsibility ibili for IEP, etc.

Access to Students • By Private providers: we recommend against it • By Parents: – Bio Bi parents t have h absolute b l t right i ht to t kid – Not necessarilyy to stay y in classroom

Release of Information • FERPA: directory information • Non-NDE Agencies g

Cyberbullying?

Cyberbullying, v: the use of technology such as computers and cell phones to engage in i repeated, t d and dh hostile til b behavior h i byy an individual or group, g p that is intended to harm others.

The term "cyberbullying" cyberbullying is used when the victim or bully is a child or teen. The term cyber harassment is used when the victim is an adult.

Duty to Protect/ Practice or Policy < Stevenson v. Martin County Bd. of Ed (4th Cir. Ed. Cir 2001) < Yap v. Oceanside Union Free Sch. Dist., i (E.D. ( N.Y. 2004) < Anibal v. Greenwich Sch. Dist.,, (Conn. 2005) < Dorothy JJ. vv. Little Rock Sch Sch. Dist Dist., (8th Cir. 1993)

J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)  8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b  Principal p suspended p student who uploaded  Court: no disruption to school school, no nexus to education, no basis for punishment

School Law For Guidance Counselors Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law