More Information Exclusive Interview: Kenneth Starr talks about the Juneau Case.

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Keep Your District Out of Court

The time comes when almost every administrator hears the screeching threat of, “I’ll see you in court!” Here’s how four district leaders dealt with legal entanglements.

By Pamela Wheaton Shorr | September 2006

Normally, the only time you want to see one of your principals at the Supreme Court is on a field trip. On March 19, Juneau (AK) School District and principal Deborah Morse were there to defend themselves. The court is contemplating arguments in what is shaping up to be a landmark ruling on the rights of students and the responsibilities of administrators to uphold them. The media attention surrounding the case became even greater when Kenneth Starr, constitutional law expert and former Whitewater prosecutor, decided to defend Morse and the school district.

As the justices weigh the issues in the Juneau case (a decision is expected in July), school administrators continue to face legal gray areas every day. And not every district has a heavy hitter like Starr in its corner when disputes come up. So what’s an educator to do? We spoke with experts and school leaders who have been navigating legal land mines in their districts for some pointers on how to handle the toughest pitfalls. Better yet, they share tips for avoiding legal battles altogether.

Taking On Teacher
When Jay Bennish, a high school history teacher in Cherry Creek District No. 5, in Aurora, Colorado, compared President Bush to Adolf Hitler and criticized U.S. foreign policy and the invasion of Iraq, his lecture was recorded on a student’s MP3 player.

Of course, the lecture ended up on the Internet, causing student demonstrations and parental uproar. Bennish was suspended and put under investigation for violating a district policy that requires teachers to present divergent viewpoints. Bennish planned to sue to get his job back, but accordterman, internal legal counsel for Cherry Creek, the matter has been settled and Bennish is once again teaching. It was, however, a close call for the district, and almost led to a protracted legal battle. “In this day and age,” Hesterman says, “issues will come up that are controversial. That’s why the board has a policy and an expectation of balance.”

Hesterman says that it’s critical that all teachers be aware of board policies. This may mean giving them a refresher course, especially when big issues like war, presidential elections, and other current events hit the newspapers. Of course, teachers like to use controversial statements to get classes going—and Hesterman says it is always a concern that teachers will feel restricted. It’s important that they feel free to encourage lively—and appropriate—debate in the classroom. She suggests that when you’re reiterating policy to teachers, you advise them to keep the age and maturity level of their audience in mind as they bring up issues that can be volatile. Also, keep the focus not on squelching opinion but on allowing all opinions to be expressed. That’s why, she adds, the policy in place at Cherry Creek includes the word “balance.”

Hesterman says that in addition to making sure all staff members are clear on board policy about what is allowed in the classroom, it’s critical to know how to deal with the press when a legal situation with such huge media exposure occurs. “We sent out updates to the press, we scheduled regular meetings for press briefings, and we updated information on the web site. We even designated parking spaces for the press,” Hesterman says. “Our general practice is to channel communication through one voice. But there is no sense in trying to avoid communication.”

Free Speech for Students

“Bong hits 4 jesus”: That was the banner unfurled by a high school senior on a public sidewalk during an Olympic rally in Juneau, Alaska, in 2002. Students had been let out of school to watch the torch go by, making it a school-sanctioned event. Principal Morse crumpled up the banner and suspended student David Frederick for 10 days. Frederick sued, seeking monetary damages for government infringement of his constitutional rights. He lost, but he took his case to the U.S. Court of Appeals for the Ninth Circuit and won. The panel of judges decided that Morse was not exempt from being held personally accountable for punitive damages. According to them, the law was “so clear and well-settled” that no reasonable school official could have thought that discipline of Frederick was permissible.

Those are pretty tough words for school administrators constantly walking a tightrope between enforcing school policy and respecting the rights of students. Are the lines as clear as the judges of the Ninth Circuit Court ruled? Ken Starr says no.

Starr believes the law is far from “clear and well-settled” and says he’s extremely troubled that Morse has been sued for punitive damages. He contends that Morse was upholding written antidrug policy and that she had a role to play in advancing the educational mission of the school. “Deborah Morse thought she was doing exactly the right thing,” he argues. “This is not student political speech. This is a student advocating illegal activity.”

Continues Starr, “There is simply a lack of clarity in the law as elucidated and developed by the Supreme Court of the United States,” particularly when it comes to the balance between student rights and the “right and prerogative of school boards and educators to carry out the school mission in the public school setting.”

While Juneau School District and Morse wait with bated breath for the Supreme Court’s decision, you can try to avoid a similar entanglement by being as clear as possible about what is and isn’t accepted at school-sponsored events. Make sure that punishments for unacceptable behavior are clearly laid out and that parents and students are aware of these rules from the first day of school.

But Starr also suggests school leaders remember that students do indeed have the right to free speech—to an even greater extent than school leaders do. If, for instance, a student is wearing a T-shirt that reads, Jesus is my lord and savior, “I’d advise the school to leave him alone,” he says.

In fact, religion is one of the areas in which lawsuits are growing, says Perry A. Zirkel, professor of education and law at Lehigh University and a lawyer and educator who has been researching legal issues in schools for 30 years. Here, too, the messages from the courts are mixed. The U.S. Court of Appeals for the Ninth Circuit recently upheld a school’s ban on a student T-shirt that read: Be ashamed, our school embraced what God has condemned. Homosexuality is shameful.
But in an earlier case from the Third Circuit, the courts struck down a Pennsylvania district policy that restricted student speech suggesting that homosexuality is a sin.

Starr asserts that students should be able to wear T-shirts that promote their religious beliefs just as freely as they wear T-shirts for their favorite sports teams. Of course, that doesn’t include every sentiment. “Fighting words and insults are not part of civil discourse,” he says.

The Bully Pulpit
Who is responsible when a student is bullied? It may be you. Former Deputy Superintendent Mary L. Capwell of Greenwich (CT) Public Schools learned this the hard way. She was involved when the district was sued in a bullying case in which the plaintiffs accused the school of negligence and intentional infliction of emotional distress. The problem arose because of two issues. First, although the district had anti-bullying policies in place, each school was responsible for enforcing those policies in its own way. “The schools should be given a certain amount of autonomy,” Capwell says, “but there must be a shared understanding of how we comply with laws and policies.”

Second, the problem was compounded by a recent change in Connecticut law. The new legislation required very strict maintenance of a public log of bullying incidents in school. “One of the issues was that there had been a pattern of ignoring bullying behavior in the school, and these incidents were never written down,” a practice that was now a violation of the law, Capwell relates.

The parents and the district eventually settled the suit, although Capwell says that, under their confidentiality agreement, the terms have not been disclosed. However, the deal is reported to have included a public apology from the district as well as a promise to fix the problems so that no other student would be put in this situation. The district has since changed its approach to bullying, holding frequent meetings about the subject and making sure that everyone understands the importance of being proactive against bullying and of following the law carefully.

The biggest lesson Capwell took from the case is this: “The chain is only as strong as its weakest link.” Therefore, it’s important to make sure that school autonomy isn’t the same thing as noncompliance. Administrators need to check in regularly with each school and ensure that district-wide policy is being uniformly adopted, especially after a related law is enacted or changed.

A Filter for Faculty

Do you know what to do with a teacher who accesses online pornography from a school computer? Daryl Herrick, superintendent of Cedarburg (WI) School District, was pretty confident that he did. But things were more complicated than he thought.

Cedarburg has made the news lately because of a case in which a high school teacher accessed pornographic web sites from school. No one is disputing that the behavior occurred. At the outset, according to Herrick, the teacher, Robert Zellner, admitted to him, the district attorney, and a union representative that he had used the Internet multiple times for porn, although the legal case mentions only one viewing.

Regardless of the number of viewings, Herrick notes that there was a clear, preexisting acceptable-use policy in place before this situation arose and that every district employee, including the man involved, signed the policy. So you might think it would be a pretty cut-and-dried case: If a teacher admits to doing something against school policy, bye-bye. Well, think again.

Outcry by parents made it clear that it would be difficult to place the teacher back in Cedarburg schools, and the board decided to terminate him. At that point, the union sued the district to get him reinstated, saying that the punishment was too harsh. An arbitrator agreed with the union’s position. “The union wanted him suspended for one day—the arbitrator for even less,” Herrick recalls.

The board appealed in circuit court, where the case now sits. “The cost to the district has been substantial,” Herrick says, with published reports putting the figure at more than $100,000 at this point. And it’s still unclear how the situation will be resolved.

So what is the lesson in all this? The district thought it was pretty well protected with its policy against unauthorized use of the Internet, although, Herrick adds, “In my opinion, you don’t need a policy. It’s common sense.” That may be true, but it never hurts to reevaluate even the most straightforward and commonsense rules and policies about once a year. Ask yourself, Does this need to be clearer? Is there anything that can be more specifically spelled out? Which groups—teachers’ union, parents, board—need to be informed if we tweak or clarify this policy? It helps to get a lawyer’s feedback as well. And never assume that because a policy is just plain common sense or has been on the books for a long time that it couldn’t use another look from time to time.

Let’s face it—we live in a pretty litigious society. No matter how many precautions you take, you won’t be able to avoid every lawsuit. Lehigh University’s Zirkel advises districts to keep legal challenges in perspective. Statistically, more schools win lawsuits than lose them, and despite the media hoopla, his research shows there has actually been a decline in lawsuits against schools since the 1970s.

Still, the best way for schools to deal with any crisis is to have good relationships with all constituents and to keep communication flowing. That’s true with lawsuits too. “We’re living in an era where schools are caught in the middle of what we call the culture wars,” says Francisco M. Negron Jr., general counsel of the National School Boards Association (NSBA). “We tell schools to talk about the process, to involve all the local players, and they’ll have a greater chance of coming to an agreement with some civility."

About the Author

Pamela Wheaton Shorr is editor of The Heller Reports' Educational Sales and Marketing Insider, and is a frequent contributor to Scholastic Administr@tor.

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