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Sex, Drugs & Honor Roll: Hot topics in Nebraska Education Law

Karen Haase KSB School Law (402) 804-8000 karen@ksbschoollaw.com KSB School Law @KarenHaase

Hot Topics for 2015 • Transgendered Students • First Amendment/Free Speech • Hazing/Locker Room Supervision • Inappropriate Teacher/Student Relationships • Social Media

Social Media

How Common is Sexting? June 2014 survey by Drexel University 80 70 60 50 40 30 20

all teens

12‐14 y/o

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State v. Clemmens  Arrested within a few hours  Charged with making terroristic threats  Sentenced to • 5 months probation • Banned in 4 counties • 2 years of no social media

Snapchat

Snapchat     

New features in the latest updates Snapchat Stories Replay videos (one per day) “Best Friends” Ability to send money

In re Juvenile John Does (Fairfax Co. Va 2013)

Girls Snapchatted video to boy He forwarded screenshots to friends Three boys arrested at school Each charged with 12 counts of distribution of child pornography  Found guilty, appealing sentences    

Nebraska Law Neb. Rev. Stat. 28-813 et. seq. Makes sexting (images) a class IV felony for offenders under 19 Class IIIA felony for 19 and up Both punishable by: • • •

Up to 5 years in prison and/or $10,000 fine Require sex offender registration

Criminal Implications Affirmative Defense: •

the picture is only of the defendant;

• • • • • • •

defendant was younger than 19 picture is of someone at least 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND defendant didn’t coerce taking or sending

Kik Messenger

Kik Messenger  App that blends texting with lots of cool social networking features  The app itself is slick  Secretive -- not overrun with parents.  No character limits, free and quick  Messages not counted against SMS  Tells users when message has been sent, delivered, and read  Fun array of related apps

Managing Kik Messenger  The app itself specifies that users should be over the age of 17  No parental controls few privacy settings  Heavily associated with sexual predators, sextortion, and cyberbullying.  No follow-up options for users who experience problems  Integration with Instagram: “Kik me @ (Kik username)”

Managing Kik Messenger  A privacy “bad guy”  One of the few apps I have forbidden my kids to use  Free texting is appealing to parents but at what other cost?

Ask.fm

Ask.fm  Social media in question and answer format  “The ask.fm service allows for anonymous content which ask.fm does not monitor. You agree to use the ask.fm service at your own risk and that ask.fm shall have no liability to you for content that you may find objectionable, obscene or in poor taste.”

Polk County, Fla. case  Student bullied on ask.fm and Kik Messenger • “Why aren't you dead?” • “You should die.” • “Wait a minute, why are you still alive?” • “Go kill yourself.”  “Yes ik I bullied REBECCA nd she killed her self but IDGAF”

Vine

Vine  Video sharing service similar to Twitter  All videos on 6 second loop  No privacy settings – ALL profiles are public  LOTS of inappropriate content  Also used for cyberbullying and sexting

Yik Yak

Rumor/Confession Accounts

Rumor/Confession Accounts  Anonymous Twitter feeds  Allow other Twitter handles to submit private messages to the owner of the rumor account  Messages are tweeted “anonymously” for anyone to read  Some mention specific people, others are general

Poof

Hide it Pro

Poof/Hide It ď&#x201A;§Allows users to select apps that will be hidden on phone ď&#x201A;§Sometimes appears as innocuous app (e.g. audio player, calculator)

Whisper

Whisper • Users can post confessions anonymously, using images • Searchable by topic • Searchable by location • Lot of photos of scantily clad men and women with a/s/l

Down (Bang with Friends)

Down/BWF Users can look through Facebook friends If any of them also have the app then you can anonymously pick the ones would like hook up with If the other person also picks you then the two of you are notified Then app serves as a chat system

Hazing: Itâ&#x20AC;&#x2122;s Happening

Hazing “any activity by which a person intentionally or recklessly endangers the physical or mental health or safety of an individual for the purpose of initiation into, admission into, affiliation with, or continued membership with any organization…”

Hazing Includes â&#x20AC;&#x153;whipping, beating, branding, forced and prolonged calisthenics, prolonged exposure to the elements, forced consumption of any food, liquor, beverage, drug, or harmful substance not generally intended for human consumption, prolonged sleep deprivationâ&#x20AC;Śâ&#x20AC;?

Hazing Includes “…or any brutal treatment or the performance of any unlawful act which endangers the physical or mental health or safety of any person…”

Craig v. Portage Township Sch. (Ind. 2013)

   

Allegations of sex harassment on bus Driver couldn’t see Student: “can anything be done?” Court Dismissed Suit: • School did not know • When school discovered took action • Failure to train didn’t cause injury

Davis v. Carmel Clay Sch. (7th Cir. 2014)

 Boys basketball team • “gooching” • Dragged freshman into shower • Grabbed and flashed • Bus incident  Court Dismissed Suit: • School did not know • When school discovered took action • Need for training not evident

Mathis v. Wayne Co. BOE (Tenn. 2011)

 Boys basketball team • “lights out” • “blindfolded sit-ups” • “pencil” and “marker” incidents  Court Ruled in Favor of Plaintiffs on Title IX Claim • Coach knew of “horseplay” • School deliberately indifferent through coach’s inaction

C.H. v. Los Lunas Sch. Bd. of Educ., (NM 2012)

 Plaintiff on HS football team • Seniors held down and “physically and sexually battered” him • 2 years prior, another highly publicized incident of hazing in NM involving HS football team  Court: prior incident gave defendants notice of possible hazing

How Common is Hazing? National study commissioned by North American Interfraternal Foundation (NIF) • 48% of college athletes reported that they had been hazed in high school • Male and Female athletes roughly equivalent (Types of hazing differed) • 66% reported they’d observed hazing of others in high school sports

Hazing We’ve Seen in Nebraska  “Paddling” by upper classmen  “Freshmen eat a pepper” day  “Russian dick-lette”  12 cut challenge  “fishhooking”

Locker Room Supervision

Doe v. Rich Central H.S. (Ind. 2012)

    

Boy complained of being bullied in locker room Security camera caught staff talking Boy assaulted by teammates Parents sued Case settled

Creekbaum v. Livingston Parish Sch. Dist. (LA 2011)

 Three football players urinated on freshman’s locker  Victim sued claiming emotional distress and negligent supervision  Coach: never had a problem before

The Legal Tension  U.S. and Nebraska law: “gender” not protected “Disability shall not include homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender-identity disorders not resulting in physical impairments, other sexual behavior disorders, problem gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs”

 OCR/DOJ/EEOC/AG: “gender” is protected “[T]he Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.”

Examples From Nebraska  Dance team  Physical education classes  Makeup and attire

GLSEN Model Policy         

Definitions Bullying, Harassment, and Discrimination Privacy/Confidentiality Student Records and Amendments Names and Pronouns Facility and Program Access Dress Code Student Gender Transitions Training and Professional Development

Policy Consideration  Not legally required  Avoid sex-assigned facility use  Keep accommodation and harassment prevention separate  Your other policies still apply  Benefits: provides clear guidance  Pitfalls: provides clear guidance  Be accommodating without a policy  Consider other lawsuits, such as First Amendment

First Amendment

TN Cheerleaders  School changed school prayer practice • Prayed before games since 1930

 Santa Fe: can’t pray over PA system  Cheerleaders joined hands and prayed, crowd joined in  TX: religious banners okay  TN: student-led still okay

Inappropriate Teacher/Student Relationships

Graham v. Ambridge Area Sch. Dist.  Teacher David Costanza slept with student  Student and family sued School  Ct. denied Summary Judgment; school could be sued

Nebraska Incidents Relationships with recent graduates Relationships with current students • High school • Middle school • Elementary

Extortion for Grades

Sex, Drugs & Honor Roll: Hot topics in Nebraska Education Law

Karen Haase KSB School Law (402) 804-8000 karen@ksbschoollaw.com KSB School Law @KarenHaase