Supreme Court Leaves Schools Guessing About How To Respond To Off-Campus Cyberbullying

By Marleen Sacks, Senior Counsel
and Chet Quaide, Partner
Pleasanton Office

Last week, the U.S. Supreme Court refused to consider three cases involving cyberbullying. That refusal leaves school districts in a continuing quandary about how to respond to off-campus cyberbullying, and illustrates how reasonable minds can come to very different conclusions on whether school districts have the right to impose discipline, or whether such discipline violates the First Amendment.

In J.S. v. Blue Mountain School District (3rd Cir. 2011) 650 F.3d 915, an eighth grade student was suspended for 10 days after creating a fake MySpace page lampooning her school principal as a sex addict. The student, who accused the principal of having sex in his office and “hitting on students and their parents,” alleged that his wife looked like a man and that his son resembled a gorilla, and claimed the posting was a joke. Notably, the comments were written on a home computer during the weekend and shared with the student’s MySpace “friends.” The lower court ruled in favor of school district, but the Third Circuit Court of Appeals reversed, ruling 8-6 that the page caused “no substantial disruption at school.” So basically, seven judges thought the suspension was appropriate, and eight did not.

Video and Audio Recording of Special Education Students: Potential Teaching Tool and Potential Liability

By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office

Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.

LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.

Clearing the Smoke Surrounding California’s Compassionate Use Act (Medical Marijuana) and Its Effect on Employment and Student Discipline Law

By Amy Estrada, Associate
San Diego Office
and Mark Bresee, Partner
Irvine Office

Since voter approval of Proposition 215 in 1996 (enacting the the Compassionate Use Act ("CUA")), school districts have encountered issues regarding the discipline of students and employees who possess medical marijuana cards. Due to the tumultuous nature of the law, when asked how to proceed in such situations the responses have varied widely over the years. In light of the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, however, it can be stated with greater confidence that the CUA will not insulate employees or students who happen to be qualified medical marijuana patients from discipline under the Education Code.

Under the federal Controlled Substances Act, the possession and use of marijuana is prohibited, even for medical users. (Gonzales v. Raich (2005) 545 U.S. 1, 26–29.) Federal law classifies marijuana as a "Schedule I" drug, meaning it has "no currently accepted medical use." (21 U.S.C. § 812(c).) The federal government therefore does not deem medical marijuana "prescriptions" valid.