School Law For
Guidance Counselors Karen Haase Harding & Shultz (402) 434-3000 434 3000 khaase@hslegalfirm.com H & S School Law @KarenHaase
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
Access to Students at School
A.W. v. School District Lincoln kindergarten g student,, was sexually assaulted in a school restroom Mother sued, alleging negligence District court entered summary judgment for school – assault not foreseeable Supreme Court – remanded for further consideration id ti – foreseeability f bilit is i a matter tt of fact, not of law
A.W. -- Court Analysis y District Court dismissed case – the assault was nott foreseeable f bl Supreme Court remanded - foreseeability is a matter of fact, not law Elements of negligence case – Duty -- of reasonable care – Breach – Causation – Damages
Interviewing Students
Interviewing Students Greene v. Camreta Interview only = school policy Arrest custody, Arrest, custody warrant or subpoena = immediate access HHS ≠ parents Notice to Parents • Abuse/neglect yp parent • Criminal Activityy by • Delay = public safety risk
Interviewingg Students Section Sect o 79 79-294: 9 : Thee school sc oo iss required equ ed to contact parents when student is released to a peace officer “except except when a minor has been taken into custody as a victim of suspected child abuse. abuse.” Release Form
Who’s Your Daddy -Custody Disputes
Parental Access to Children FERPA: Non Non-custodial custodial parents have same rights as custodial P l v. Anchorage Pauley A h Sch. S h Di Dist., t 31 P.3d P 3d 1284 (Ala. 2001) Exceptions • Termination of p parental rights g • Supervised visitation • Schmidt S h idt v. D Des M Moines i
Parental Access to Children
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))
Custody Disputes:
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
Immigration Status
Reporting Abuse
Call the Abuse/Neglect Hotline at 1 800 652 1999 1-800-652-1999
Determining student residence
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.
Foster Children Default rule: no change in residence May attend different school IF “person person in charge charge” make a determination that it is not in the child’s hild’ best b t iinterest t t to t attend tt d th the same school as prior to the foster care placement. Neb. Rev. Stat. 79-215(9) , 43-1311 or 43-1312
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.
Common Cyberbullying Tactics Stealing someone someone’ss online name and using it to write nasty rumors, comment, or spread gossip. i Alteringg someone’s message g or doctoring photographs to say something different or make fun of a person.
Common Cyberbullying Tactics ďƒ˜Secretly recording conversations using a cell phone, then playing the recording i back for f the person being i discussed. ďƒ˜Posting damaging information on blogs or web sites sites. ďƒ˜Creating or taking part in Internet polling or list-making
Cyberbullying y y g Example of cyberbullying b b ll i on iChat (Apple’s instant messaging) i )
Divagirl: Hey, loser, watch your back. t t323 What tmt323: Wh t r u talking about? Divagirl: Why don't you kill yourself while u r ahead? tmt323: Why can't you just leave me alone? Divagirl: Ugly girls like u need to be put in their place.
How Common is Cyberbullying? ďƒ˜ one in four students between the g of 11 and 19 have been the ages victim of cyberbullying. ďƒ˜ Approximately A i t l 65 percentt off kids kid know of someone who has been cyberbullied.
How Common is Cyberbullying? 18% of students in grades 6-8 said they had been cyberbullied at least once in the 2 months 6% said it happened 2 or more times 11% off students iin grades 6-8 6 8 said i y at least once in theyy had cyberbullied the last 2 months 2% said they had done it 2 or more times
So what’s what s the big deal?
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
Kowalski v. Berkeley Co. Schs (4th Cir. Ci 2011) Student created MySpace group harassing another student Creator of the page received • 10 10-day day suspension from school • 90-day “social suspension” Ct speech Ct.: h caused d substantial b t ti l p , therefore discipline p disruption, appropriate
Civil Consequences Student and parents can be sued • Suing for money; no jail time • Homeowners insurance often pays • Judgments can result in hom e f foreclosure l and d other h h hardship d hi Suit can be for: • Intentional I i l infliction i fli i off emotional i l distress • Tortuous interference • Slander
Finkel v. Facebook (N.Y.) High school students created private Facebook page about classmate • Called her a “slut” slut • Said she had AIDs • Said S id she h used dd drugs
She sued Facebook and kids who created page Facebook F b k di dismissed i d ffrom llawsuit; it students initially left in the case
D.C. v. R.S. (Cal. 2010) High school student posted on victim’s website • • •
I want to rip out your f-ing f ing heart and feed it to you. I' wanted I've t d to t kill you. If I ever see yyou I'm ggoing g to pound p your head in with an ice pick.
Family sued; defendant said just a joke Litigation allowed to continue
Fulmer v. Swidler (Pa. 2003) Middle school student created Teacher Sux” website Sux • • •
Compared math teacher to Hitler Had picture of her decapitated Asked for contributions toward hit man
Teacher sued Jury awarded $500,000 Similar suit by principal settled
School Law For
Guidance Counselors Karen Haase Harding & Shultz (402) 434-3000 434 3000 khaase@hslegalfirm.com H & S School Law @KarenHaase