Beginning a New Era on Kentucky's Highest Court

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Beginning a new era on Kentucky’s highest court Chief Justice John D. Minton, Jr. takes on the challenge of adapting our state courts to a rapidly changing world More than unique policies More than proven protection More than millions in benefits MORE THAN50 YEARS of Solutions for Kentucky Attorneys

For information: 502-425-3232 800-928-6421

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11801 Brinley Avenue Louisville, Kentucky 40243 This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of November.

Communications & Education Law Publications Committee Frances Catron-Malone, Chair, Frankfort Paul Alley, Florence Mindy Barfield, Lexington 10 I’m Going to Beat You Up! – Sandra A. Bolin, Berea Reporting Student Conduct Under “the Bullying Bill” Michael A. Breen, Bowling Green By Robert L. Chenoweth & Grant R. Chenoweth Christopher S. Burnside, Louisville David C. Condon, Owensboro James P. Dady, Newport 14 Why Can’t I Wear That? – Bruce K. Davis, Lexington Student Clothing and Free Speech Judith D. Fischer, Louisville P. Franklin Heaberlin, Prestonsburg By Michael A. Owsley Sheryl E. Heeter, Newport Judith B. Hoge, Louisville 20 From Armbands and MySpace to Cell Phones – Edna M. Lowery, Frankfort Theodore T. Myre, Jr., Louisville Interesting School Law Cases Across the Country Eileen M. O’Brien, Lexington By Susan Hanley Duncan Brian K. Pack, Glasgow Richard M. Rawdon, Jr., Georgetown E.P. Barlow Ropp, Glasgow 25 Education of Gifted Students in Kentucky Candace J. Smith, Covington By Karen Quinn E. Frederick Straub, Jr., Paducah Gerald R. Toner, Louisville John A. West, Covington Michele M. Whittington, Frankfort Departments Publisher James L. Deckard 3 President’s Page Editor By Barbara Dahlenburg Bonar Frances Catron-Malone Managing Editor 5 John D. Minton, Jr. begins role Barbara L. Thomas as fifth Chief Justice of Kentucky The Bench & Bar (ISSN-1521-6497) is By Leigh Anne Hiatt published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. Periodicals Postage paid at 30 Shop Talk By Michael Losavio Frankfort, KY and additional mailing offices. All manuscripts for publication should be sent to the Managing Editor. Permission is 32 Effective Legal Writing By Susan Hanley Duncan granted for reproduction with credit. Publication of any article or statement is not to be deemed an endorsement of the views 34 CLE expressed therein by the Kentucky Bar Association. Subscription Price: $20 per year. Members 35 Kentucky Bar News subscription is included in annual dues and is not less than 50% of the lowest subscription price paid by subscribers. For more informa- 40 Who, What, When & Where tion, call 502-564-3795.

POSTMASTER 49 YLS By Scott D. Laufenberg Send address changes to: Bench & Bar Cover photo by Alan Davis. 514 West Main Street Frankfort, KY 40601-1812 LostLost in in the the shuffle? shuffle?

SetSet yourselfyourself apartapart fromfrom thethe othersothers byby advertisingadvertising inin thethe KentuckyKentucky LegalLegal Directory.Directory. AmongAmong allall thethe legallegal directoriesdirectories onon thethe market,market, thethe BlueBlue BookBookstandsstands out,out, trulytruly thethe mostmost useruser friendlyfriendly handhand heldheld devicedevice onon youryour bookshelf.bookshelf. StandStand out out for for a a change! change! **SmallerSmaller sizesize && distinctivedistinctive blueblue covercover makemake ourour bookbook instantlyinstantly recognizablerecognizable **EachEach volumevolume coverscovers aa singlesingle state,state, andand isis soldsold individually.individually. PurchasePurchase onlyonly thethe onesones thatthat youyou needneed.. **BiographicalBiographical listingslistings appearappear inin single-columnsingle-column pagepage format,format, withwith largerlarger typetype toto makemake themthem easiereasier toto read.read. **ColorColor codedcoded pagespages andand tabtab dividersdividers makemake itit easiereasier toto movemove betweenbetween sectionssections

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What is all this talk about the Rule of Law?

Barbara Dahlenburg Bonar

Simply put, it’s our system of government, “Of the people, by the people, and for the people.” (Abraham Lincoln)

his year, and for an entire year, the The working definition of the Rule Having all the Symposium participants T world is celebrating the 200th of Law, according to the American Bar first agree on a fundamental working birthday of Kentucky’s most famous Association’s World Justice Project definition of the Rule of Law will be son, Abraham Lincoln. initiative, is as follows: paramount to the effectiveness of the The Kentucky Bar Association’s tribute day’s discussions. In other words, to Abe Lincoln will be in the form of a A system of self-government understanding the full scope of the Rule first annual “Rule of Law” Symposium, in which all persons, including the of Law will be the first step toward February 6, 2009, to convene in the government, are accountable under appreciating the important role it plays capital of our Commonwealth. the law. for all Kentuckians in the daily work and With the support of Kentucky State play in which we all partake as a society. A system based on fair, University, the Kentucky Bar Association “Two people can agree on the published, broadly understood and will celebrate our forefathers’ greatest importance of the Rule of Law, but if stable laws. national gift to us – our Constitution, they have not agreed on the definition, and the Rule of Law it represents, on A fair, robust, and accessible they may not have agreed on anything that day. legal process in which rights and much at all,” comments Norman Greene, So what is the Rule of Law? Simply responsibilities based in law are who, with the New York firm of put, it’s the full scope of everything that enforced. Schoeman, Updike, and Kaufman, has we, as a profession, advance in our made the study of the Rule of Law part practice, and all that has been gifted to Diverse, competent and of his lifetime work. Greene is assisting us by our forefathers in the cherished independent lawyers and judges. the Kentucky Bar in formulating the words of our Constitution. As practicing attorneys, we are the The Kentucky Symposium will, in guardians of the Rule of Law for our fact, use this very definition as its profession, for our society, and for starting point. Through presentations and generations to come. Just as Willie focus groups, the initiative will then Stark said “Good is made up by man as engage in a series of multi-disciplinary he goes along,” our task, as attorneys, is discussions addressing controversial to make up “good” rules of law for our issues of justice in our society. Such society for every day we practice. discussions will address how the Rule of Our higher task is not only to uphold Law impacts a broad range of the standards of our constitution, but to disciplines, including architecture, educate the future generations of business, education, engineering, attorneys and our community as to how environment, human rights, labor, our profession upholds our great system media, the military, public health, public of justice. As Thomas Jefferson urged safety, and religion. The concept will be us, we must keep in mind that our to begin a dialogue on everyday social system of Justice will not survive unless justice issues, so as to cultivate a better we “educate the populous” to better understanding of Kentucky’s system of understand our greatest national treasure justice and the role of our profession – our Rule of Law. within.

November 2008 Bench & Bar 3 launch of the Symposium. it is hoped the concept will form the Solutions, Lexington, and numerous “For instance,” Greene points out, a impetus for a comprehensive Rule of other attorney and multi-discipline definition of the Rule of Law which Law education program for our future volunteers have devoted countless hours does little more than require that laws generations in Kentucky. The over the past year in planning this great be enforced “efficiently and equally,” Symposium’s program will be recorded event. It will include key Kentucky would “also be compatible with unjust and video streamed statewide, and will Administrative and Judicial officials, or totalitarian societies.” Any definition be designed for dissemination to and two nationally known keynote discussed, Greene counsels, should Kentucky high school, grade school, speakers on the Rule of Law, Elizabeth include the concepts of consistency Andersen, Executive Director, American with international human rights As practicing attorneys, Society of International Law, and standards, adherence to the principals Norman Greene. The Great Pretender of the supremacy of the law, and we are the guardians Abraham Lincoln himself is scheduled fairness in both procedural and legal of the Rule of Law to make a special appearance. transparency. These are the standards The KBA is also delighted and espoused by the United Nations in its for our profession, honored that The Kentucky Supreme Rule of Law quests. for our society, Court has agreed to play a key role in In addition to the educational and for generations the planning process, as well as Chase qualities of the Symposium to other College of Law, the University of disciplines, the Symposium will also be to come. Louisville School of Law, the University an opportunity for our KBA members of Kentucky College of Law, and, of to themselves problem-solve with other and even college level programs. In this course, Kentucky State University. diverse sectors of our communities. In regard, it will also be a resource for use Ultimately, the Symposium is a that respect, it will increase our in future Law Days. process for establishing our honor as a profession’s statewide awareness of our Chairpersons Norman Harned, Esq., profession, and sharing with our Constitution and the Rule of Law, and Bowling Green, and Charlie Ricketts, community our pride in the Rule of help us as attorneys to promote and Esq., Louisville with assistance from Law. Please let us know if you or advance our system of justice. Bobby Clark, Business Development anyone you know is interested in As a final benefit of the Symposium, Specialist, TiER1 Performance assisting with this important project!

Kentucky Bar Association 2009 Outstanding Service Awards Call for Nominations

The Kentucky Bar Association is accepting nominations for 2009 Outstanding Judge and Lawyer, Donated Legal Services and Bruce K. Davis Bar Service Awards. Nominations must be received by December 31, 2008. If you are aware of a Kentucky judge or lawyer who has provided exceptional service in these areas, please call (502) 564-3795 to request a nominating form or download it from our website at www.kybar.org by choosing “Inside KBA” and clicking on “Public Relations – Outstanding Service Awards.”

Outstanding Judge Award Outstanding Lawyer Award Awards may be given to any judge or lawyer who has distinguished himself or herself through a contribution of outstanding service to the legal profession. The selection process places special emphasis upon community, civic and/or charitable service, which brings honor to the profession.

Donated Legal Services Award Nominees for the Donated Legal Services Award must be members in good standing with the KBA and currently involved in pro bono work. The selection process places special emphasis on the nature of the legal services contributed and the amount of time involved in the provision of free legal services.

Bruce K. Davis Bar Service Award Many lawyers take time from their practices to provide personal, professional and financial support to the KBA. This award expresses the appreciation and respect for such dedicated professional service. All members of the KBA are eligible in any given year except for current officers and members of the Board of Governors.

4 Bench & Bar November 2008

A New Era on the Supreme Court

Kentucky’s new chief justice looks forward to preparing our state courts for the 21st century

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Minton, III, 15 ,Q -XO\ &KLHI -XVWLFH 0LQWRQ :KHQ , VD\ , KDYH PXFK WR OHDUQ LW ZDV DSSRLQWHG WR WKH 6XSUHPH &RXUW E\ LV DERXW WKH DGPLQLVWUDWLYH UROH RI WKH Residence: Bowling Green, Ky. WKHQ*RY (UQLH )OHWFKHU WR ¿OO WKH XQ- FKLHI MXVWLFH DQG DV FKLHI DGYRFDWH DQG H[SLUHG WHUP FUHDWHG E\ WKH UHWLUHPHQW FKLHI OREE\LVW IRU OHJLVODWLRQ DIIHFWLQJ Capitol Chambers: RI -XVWLFH :LOOLDP 6 &RRSHU +H ZDV WKH &RXUW RI -XVWLFH State Capitol, Room 231 VXEVHTXHQWO\ HOHFWHG WR DQ HLJKW\HDU ³, WKLQN LW¶V LPSRUWDQW IRU WKH FKLHI 700 Capitol Avenue WHUP RQ WKH VWDWH¶V KLJKHVW FRXUW LQ 1R- MXVWLFH WR GR D ORW RI OLVWHQLQJ´ KH VDLG Frankfort, Ky. 40601 YHPEHU DIWHU UXQQLQJ XQRSSRVHG ³(DFK RI WKH FRXQWLHV KDV XQLTXH Frankfort 502-564-4162 LQ WKH :HVWHUQ .HQWXFN\ FRXQWLHV LVVXHV EXW P\ UROH LV WR OLVWHQ IRU ZKDW Bowling Green 270-746-7867 WKDW FRPSULVH WKH QG 6XSUHPH &RXUW WKH\ KDYH LQ FRPPRQ 7KH SHRSOH ZKR November 2008 Bench & Bar 7 Bowling Green when he was 6 years ZDV DEVROXWHO\ GHWHUPLQHG WKDW , ZDV ROG +H DQG KLV EURWKHU - (UQHVW 0LQ- JRLQJ WR ¿QG WKH ULJKW ZRPDQ DQG VKH WRQ QRZ D SURIHVVRU LQ WKH 'HSDUW- LQWURGXFHG PH WR 6XVDQ´ PHQW RI $QLPDO 6FLHQFH DQG ,QGXVWU\ &KLHI -XVWLFH 0LQWRQ DWWULEXWHV DW .DQVDV 6WDWH 8QLYHUVLW\ DWWHQGHG PXFK RI KLV VXFFHVV WR KLV ZLIH WKH HOHPHQWDU\ VFKRRO DQG KLJK VFKRRO IRUPHU 6XVDQ / 3DJH ZKR LV D %RZO- DW :HVWHUQ¶V 7UDLQLQJ 6FKRRO ZKHUH LQJ *UHHQ QDWLYH ³,I LW ZHUHQ¶W IRU GHGLFDWHG WHDFKHUV JDYH WKHP D VWURQJ 6XVDQ , ZRXOGQ¶W EH GRLQJ ZKDW ,¶P WUDGLWLRQDO HGXFDWLRQ GRLQJ QRZ 6KH PDUULHG D ODZ\HU VKH ³:HVWHUQ KDV EHHQ D SDUW RI P\ OLIH GLGQ¶W PDUU\ D SROLWLFLDQ :KHQ , WROG VLQFH , ZDV D FKLOG´ KH VDLG ³7R WKLV KHU , ZDV LQWHUHVWHG LQ UXQQLQJ IRU &LU- GD\ ZH OLYH RQ WKH HGJH RI FDPSXV´ FXLW &RXUW KHU TXHVWLRQ ZDV ZK\ LQ WKH +LV WKFHQWXU\ KRPH LV GHVLJQDWHG ZRUOG ZRXOG \RX ZDQW WR GR WKDW" %XW DV D ORFDO KLVWRULF ODQGPDUN DQG VLWV VKH DJUHHG WKDW VKH ZRXOG VXSSRUW PH MXVW DFURVV WKH VWUHHW IURP WKH KRPH DQG ZKHQ VKH GHFLGHV WR VXSSRUW \RX RI 'U *DU\ $ 5DQVGHOO 'U 5DQVGHOO LW¶V ZLWK ZKROHKHDUWHG FRPPLWPHQW ZDV &KLHI -XVWLFH 0LQWRQ¶V URRPPDWH 6KH¶V WKH RQH ZKR KDV XUJHG PH WR EH Photo by Jennifer S. 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WKHLU HIIRUWV´ Collins,both of the Department of Public Information of the Administrative Office of the +LV IDPLO\ PRYHG IURP &DGL] WR Courts. Cover photo by Alan Davis of Bowling Green, Ky. 8 Bench & Bar November 2008 GX_ g_e\T i_e bQdXUb XQfU Q^cgUbY^W dXU `X_Û gXU^ i_e ÛUT XU\`/

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J_uwcpq Ksrs_j Glqsp_lac Amkn_lw md Iclrsaiw U 101 Ucqr K_gl Qr,* Qrc 4.. U Jmsgqtgjjc* IW 2.0.0 3.0,346,4/.. U 6..,6..,4/./ U D_v 3.0,346,4/.1 uuu,jkgai,amk ?nnpmtcb `w8 Jmsgqtgjjc @_p ?qqmag_rgml* Iclrsaiw @_p ?qqmag_rgml* Iclrsaiw Hsqrgac ?qqmag_rgml EDUCATION LAW I’m Going to Beat You Up!: Reporting Student Conduct Under “the Bullying Bill”

By Robert L. Chenoweth & common “bullying bill” misnomer or or neglect, certain delineated mis- Grant R. Chenoweth our suggested “teacher liability cre- demeanors, and all felonies. ation” title for the legislation. You will also find in HB 91 a n 2001, in a little-known provision of What you will find in HB 91 is pri- required specificity of legal knowledge Ithe No Child Left Behind Act marily a reporting requirement, imposed not even tested on the Kentucky Bar (“NCLB”), Congress enacted the Paul on all employees of public school dis- Exam. The reporting requirement in HB D. Coverdell Teacher Protection Act of tricts, from physical plant workers and 91 is triggered by a determination of a 2001 (“Coverdell Act”).1 In 2008, the support personnel up to the district “felony offense specified in KRS Chap- Kentucky General Assembly passed superintendent.3 This is in addition to ter 508” in which a student perpetrator what could fairly be titled the “Teacher KRS §158.154, KRS §158.155, and commits the act against a student vic- Liability Creation Act of 2008.”2 Maybe KRS §620.030, which respectively tim, essentially while under the you know it as “the bullying bill” or impose reporting obligations on “the supervision and control of school per- “the Golden Rule bill,” though you will Principal”; “an administrator, teacher, or sonnel.4 Quick test: without reaching find neither the word “bully” nor the other [school] employee”; and “any per- for your Kentucky Penal Code, define phrase “Golden Rule” in the final ver- son,” on a far broader range of conduct the phrases physical injury, serious sion of House Bill (“HB”) 91, signed than that addressed by HB 91, includ- physical injury, deadly weapon, and into law by the Governor on April 15, ing, inter alia, sexual offenses, assault, dangerous instrument, and apply the 2008. For convenience, reference will weapon-related conduct, drug-related mental states of intentionally, wantonly, be made to HB 91 rather than apply the conduct, property damage, child abuse and recklessly, to distinguish whether

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10 Bench & Bar November 2008 conduct by one child against another Code, with at least the benefit of statu- create a functional definition of bullying amounts to assault in the second tory definitions, a school employee which might justify the use of the degree,5 a Class C felony, or amounts must also determine whether the “bullying bill” title. However, the inci- only to assault in the fourth degree,6 a rumors and gossip and bits of informa- dents of bullying rendered criminal by Class A misdemeanor. Recall the evi- tion floating around among students these amendments to KRS Chapter 525 dence on which this determination is to have coalesced into a sufficient pattern are not covered by the reporting require- be based is largely collected from other to elevate mere hunch and suspicion ment(s) under Section 1 of HB 91, children who may well have taken sides into “reasonable cause to believe” the which relates solely to felony offenses in the dispute based on the clique-of- conduct has occurred and that the con- under KRS Chapter 508. the-day. Now refer to KRS §500.080 duct constitutes a particular crime. Properly understood, “bullying” and KRS §501.020 to check your With the exception of KRS §158.154, consists of a pattern of conduct and is answers. The test does not get any eas- the referenced reporting statutes are also characterized by an imbalance of ier as you move through the rest of the triggered by actual knowledge of the power in favor of the “bully” – epito- offenses in KRS Chapter 508, including covered conduct. But in light of the nec- mized by an older kid’s daily wait at terroristic threatening. Ask school essary reference to the Kentucky Penal the bus stop to confiscate the lunch employees who have never endured a Code, it is doubtful any school money of a younger kid. As such, an single criminal law lecture to apply employee could ever develop actual individual occurrence constituting a these definitions to the myriad of situa- knowledge that a particular criminal felony under KRS Chapter 508 would tions arising among the hundreds of statute had been violated until an adju- not be bullying. Instead, one need only students under their supervision every dication in court. At that point, the to read the news accounts of the vari- day. In addition to worrying about stu- reporting requirement is anachronistic. ous school shootings nationwide to dent test scores for NCLB monitoring, HB 91 has two (2) initial reporting learn that it is most often the “victim” school employees have been saddled by requirements (in addition to data collec- of bullying who is likely to engage in the General Assembly with determining tion and reporting on a statewide, conduct rendered felonious by KRS the mental state motivating student mis- district, school, and grade level). The Chapter 508. conduct and whether the resulting first requires employees to report Section 2 of HB 91 imposes a data injury to another student is merely a “immediately” to “the principal of the collection duty on the Kentucky Depart- “physical injury,” or might be labeled school attended by the victim.”10 The ment of Education (“KDE”).13 The as “serious.”7 By the way, the “threat” second requires the principal, within information to be collected by KDE is included in the title to this article is not forty-eight (48) hours after receiving categorized by particular incidents of believed to constitute terroristic threat- this original report, to make a written student conduct. To comply with the ening in the second degree, which report to the local school board and one apparent intent of the amendment to relates to conduct that may result in of several law enforcement agencies or KRS §158.444, local school districts death or “serious physical injury” ... but the county attorney.11 What of an initial will have to share information on indi- we may be wrong.8 report received on Friday evening? The vidual students with KDE relating to a The reference in HB 91 to “any principal may need to forfeit a much range of student activity far broader felony offense specified in KRS Chapter needed day of rest to prepare a written than the requirements created by HB 91 508” is redundant, as school employees report for transmittal on Sunday after- or the pre-existing reporting statutes. were already obligated to “promptly” noon to a prosecutor’s office which is For example, the report to KDE is not report “any felony offense” occurring not even open for business. The “imme- limited to felony offenses under KRS on school property, on a school bus, at a diately” standard imposed by HB 91 is Chapter 508, but instead includes “any school-sponsored event, or even within shared by KRS §158.154 and KRS offense” under that chapter.14 That is, one thousand (1,000) feet of school §620.030. Relying on the tenet of statu- certain conduct may be required to be premises.9 This existing statute, how- tory construction that the General reported to KDE under Section 2 of HB ever, is not concerned with whether Assembly purposefully chooses its 91 that is not required to be the subject students occupied the roles of perpetra- words, one is left to wonder why the of any report to a law enforcement tor or victim, but addressed all conduct, report required by KRS §158.155 must agency under Section 1 of HB 91. regardless of the actors. be made “promptly” rather than “imme- In addition, the data collection In addition to the substantial over- diately.” required by Section 2 of HB 91 relates lap, even duplication, between the Sections 4 and 5 of HB 91 amend the to specific incidents of conduct, and is existing statutes and HB 91, there is definitions of criminal harassment and not modified by the “reasonable cause another ubiquitous feature of these pro- harassing communications to cover con- to believe” standard. For a given visions. These reporting statutes share duct committed by students against instance of student misconduct, an indian amorphous “reasonable cause to other students.12 These are both defined vidual employee may have made an believe” or “reasonable belief” trigger as Class B misdemeanors under KRS initial report due to “reasonable cause to mechanism. After being provided a Chapter 525. Arguably, the amendments believe” the particular conduct crash course on the Kentucky Penal to these provisions of KRS Chapter 525 occurred, but there may not be a

November 2008 Bench & Bar 11 subsequent determination by the school this reason, the data collected by KDE determinations have been made that par- district that the suspected conduct actu- will not reveal the extent to which ini- ticular incidents occurred. ally occurred so as to constitute an tial reports have been made concerning Consequently, an analysis of the data “incident” for requisite data collection suspected student misconduct, but will collected by KDE will not show the as delineated in HB 91, Section 2. For only reveal the extent to which final extent to which employees make reports on suspected conduct that is not later United States Postal Service Statement of Ownership, Management, and Circulation determined to either be criminal in Publication Title: Bench & Bar. Publication Number: 1521-6497. Filing Date: September 29, 2008. nature or to warrant discipline. The Bench & Bar is published Bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frank- fort, KY 40601-1812, (502) 564-3795. Number of issues Published Annually: Six. Annual Subscription In light of the uncertainty created by Price: $20.00. Contact Person: Barbara Thomas. The General Business Office of the Publisher is at the the statutory language, the inability of Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. The Full Names and Complete KDE to monitor the over-reporting of Mailing Addresses of Publisher, Editor, and Managing Editor are: Publisher, James L. Deckard, Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812; Editor, Frances Catron-Malone, Ken- unfounded suspicions and rumors, and tucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812; Managing Editor, Barbara L. with the benefit of good faith immunity Thomas, Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601-1812. for reports made under three of the four 15 The Owner of the publication is the Kentucky Bar Association, 514 West Main Street, Frankfort, KY 40601- referenced reporting requirements, one 1812. There are no Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 is left to conclude that the best advice to Percent or More of Total Amount of Bonds, Mortgages, or Other Securities. school employees is to report all misconduct occurring at or near a school The Tax Status Has Not Changed During Preceding 12 Months. building, school bus, or school spon- Publication Title: Bench & Bar sored activity, regardless of the identity Issue Date for Circulation Data Below: July 2008 of the perpetrator or victim, and to ______Extent and Nature of Circulation report it early, report it often, and report it in writing. Beyond student safety, Average No. Copies Each Issue During Preceding 12 Months: why might this apparently glib advice a. Total Number of Copies: 16,042 also be good legal advice? b. Paid Circulation (By Mail and Outside the Mail) (1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 15,724 Two words: individual liability. The (2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 0 Supreme Court of Kentucky has deter- (3) Paid Distribution Outside the Mail Including Sales Through Dealers and Carriers, Street Vendors, mined school employees can be held Counter Sales, and Other Paid Distribution Outside USPS: 0 (4) Paid Distribution by Other Classes of Mail Through the USPS: 0 personally liable for injury arising from c. Total Paid Distribution: 15,724 a breach of a ministerial duty, regardless d. Free or Nominal Rate Distribution (By Mail and Outside the Mail) of whether the breach was in good (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541: 0 faith.16 This is in contrast to a breach of (2) Free or Nominal Rate In-County Copies included on PS Form 3541: 0 (3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 73 a discretionary duty, for which good (4) Free or Nominal Rate Distribution Outside the Mail: 55 faith immunity remains available.17 e. Total Free or Nominal Rate Distribution: 128 Loosely translated, school employees f. Total Distribution: 15,852 g. Copies not Distributed: 190 likely have immunity from simple negli- h. Total: 16,042 gence claims, but not from negligence i. Percent Paid: 99% per se claims, in which the duty is defined by reference to a statute, admin- No. Copies of Single Issue Published Nearest to Filing Date a. Total Number of Copies: 16,000 istrative regulation, or local board b. Paid Circulation (By Mail and Outside the Mail) policy. The local board of education (1) Mailed Outside-County Paid Subscriptions Stated on PS Form 3541: 15,795 retains its governmental immunity from (2) Mailed In-County Paid Subscriptions Stated on PS Form 3541: 0 18 (3) Paid Distribution Outside the Mail Including Sales Through Dealers and Carriers, Street Vendors, tort claims. Successive personnel up Counter Sales, and Other Paid Distribution Outside USPS: 0 the chain of command likely also will (4) Paid Distribution by Other Classes of Mail Through the USPS: 0 be immune from damages liability, c. Total Paid Distribution: 15,795 absent evidence they hired or retained d. Free or Nominal Rate Distribution (By Mail and Outside the Mail) (1) Free or Nominal Rate Outside-County Copies included on PS Form 3541: 0 subordinates who are plainly incompe- (2) Free or Nominal Rate In-County Copies included on PS Form 3541: 0 tent.19 As the employees most likely to (3) Free or Nominal Rate Copies Mailed at Other Classes Through the USPS: 48 be in constant contact with students, (4) Free or Nominal Rate Distribution Outside the Mail: 39 e. Total Free or Nominal Rate Distribution: 87 classroom teachers are left to bear the f. Total Distribution: 15,882 brunt of the obligation imposed by the g. Copies not Distributed: 118 various reporting requirements, includ- h. Total: 16,000 ing HB 91. Teachers, then, are the most i. Percent Paid: 99% Publication of Statement of Ownership for a general publication is required and will be printed in the likely school employees to be held indi- November 2008 issue of this publication. vidually liable if a report is not made I certify that all information furnished is true and complete. regarding a minor incident, and a subse- James L. Deckard, Publisher, September 29, 2008 quent serious incident occurs at the

12 Bench & Bar November 2008 hands of the same perpetrator. It is not §158.156 (2008). 13. See KRS §158.444, as amended by hard to imagine a jury (with the benefit 4. Id. §1(1). HB 91 at § 2. of hindsight and the gentle guidance of 5. KRS § 508.020. 14. HB 91 at § 2(2)(b)1.d. the student’s attorney) concluding the 6. KRS § 508.030. 15. KRS §158.155(8); HB 91 at §1(3); information available to the teacher at 7. Compare KRS § 500.080(13) with KRS § 620.050. the time of the first incident was suffi- § 500.080(15). 16. See, e.g., Williams v. Ky. Dep’t of cient to give the teacher “reasonable 8. See KRS § 508.078; KRS § Educ., 113 S.W.3d 145 (Ky. 2003); cause to believe” conduct had occurred 500.080(15) (emphasis added). Yanero v. Davis, 65 S.W.3d 510 for which there existed a duty to report. 9. KRS §158.155(1)(b). (Ky. 2001). Certainly, members of the General 10. HB 91 at §1(1). 17. See Yanero, 65 S.W.3d at 522. Assembly would not welcome being 11. Id. 18. Id. at 527. burdened with the imposition of a liabil- 12. See KRS § 525.070 and § 525.080, 19. Id. at 528. ity-laden ministerial duty with an as amended by HB 91. 20. 20 U.S.C. § 6736. amorphous trigger, dependent on application of hyper-technical statutory definitions that are foreign to their training and education. Yet, this is what has been legislatively imposed on teachers by HB 91. It seems the Golden Rule did Isn’t It Time You not prevent these legislators from doing- unto-others through passage of the Checked Us Out? “bullying bill” that which they would not want done unto themselves. Our users tell us that What of the Coverdell Act? It LawReader is the fastest way excludes any teacher conduct that is not in conformity with state law, and that is to find a case citation, statute, characterized by indifference to the rule or legal doctrine. rights and safety of the individual harmed.20 These are fact-sensitive con- DID YOU KNOW THAT: clusions that may have to be made by a jury. The Act simply does not likely • LawReader can be accessed via your provide any relief from the burden of I-phone. defending a lawsuit. Rather than an apple, perhaps a better gift to Ken- • LawReader has thousands of legal tucky’s over-worked and under-paid forms, pleadings, and motions. teachers this year is an annotated copy • of the Kentucky Penal Code ... and your LawReader’s case law data base allows business card. the searching of the appellate decisions of all 50 states and all federal courts ENDNOTES without any extra charges. 1. 20 U.S.C. §§ 6731-6738. 2. HB 91; Kentucky Acts 2008 Regu- • Our minimum membership is 30 days! lar Session, Chapter 125. 3. Id. §1, to be codified as KRS • LawReader provides a weekly synopsis of all Kentucky Appellate decisions within hours of their release. Robert L. Chenoweth is a 1972 graduate of the University of Kentucky College of Law and is the owner of the While other online Chenoweth Law Office in Frankfort, Kentucky. Grant R. Chenoweth, his son, providers are increasing is a 2007 graduate of the University of their prices - LawReader is Louisville School of Law and joined his still only $34.95 a month. father’s practice in October 2007. The Chenoweth Law Office represents public boards of education throughout the Commonwealth on a variety of issues, www.LawReader.com including student discipline and litiga- 502-732-4617 tion defense.

November 2008 Bench & Bar 13 EDUCATION LAW

Why Can’t I Wear That? Student Clothing and Free Speech

By Michael A. Owsley turbance. The Court found that students Amendment by exercising editorial condo not “shed their constitutional rights trol over the style and content of student t has been over 40 years since John to freedom of speech or expression at speech in school-sponsored expressive ITinker, Chris Eckhardt, and Mary the schoolhouse gate.” activities so long as their actions are rea- Beth Tinker were suspended from In 1986 the Supreme Court upheld sonably related to legitimate pedagogical school when they showed their objec- the suspension of a student for using an concerns.”3 In the Hazelwood case, a tions to the hostilities in Vietnam in elaborate, explicit sexual metaphor in a public high school principal ordered sev- December 1965 by each wearing a nominating speech before a student eral pages deleted from the school black armband to school in Des Moines, assembly when he had been told that the newspaper, which was produced by a Iowa,1 but the topic of dress codes and speech was inappropriate by two teach- journalism class. The articles dealt with free speech at school is still hot today. ers.2 In the Fraser decision, the Court students’ experiences with pregnancy In the Tinker decision, the Supreme determined that the First Amendment and the impact of divorce on students at Court found for the students, holding does not protect students’ use of vulgar the school. The Supreme Court found that regulation of student speech is gen- and offensive language in public dis- that the principal’s actions were not erally permissible only when the speech course and held that school authorities unconstitutional and reasoned that the would “materially and substantially can punish school-related student paper was not a public forum because it interfere with the requirements of speech which they rationally consider to was produced in a journalism class in appropriate discipline in the operation be “inappropriate and inconsistent with which the teacher had final authority of the school.” Tinker requires a specific educational objectives.” over production and publication. and significant fear of disruption, not In 1988 the Supreme Court held that just some remote apprehension of dis- “[E]ducators do not offend the First Effects of Tinker, Fraser, and Hazelwood These three cases have not produced a unified doctrine for students’ free speech rights, but they have carved out three separate standards to be used depending on the facts of the particular situation. If the expression is passive, sym- bolic, and/or political, then, pursuant to Tinker, school officials must determine its disruptive potential, but must act from more than a simple need to avoid an uncomfortable situation and must be uniform in their application. If school officials are displeased with the “manner” of the speech due to its vulgarity or offensiveness, they may regulate such speech according to Fraser. Finally, if the speech or expression is sponsored by the school or in any way bears the school’s endorsement, Hazelwood permits school officials to determine whether the speech is appropriate.

Are Student Dress Codes Constitutional? Dress codes have emerged as a means of reducing and preventing violence. These policies are typically aimed at deterring serious offenses by students, such as possession of

14 Bench & Bar November 2008 weapons, drugs, alcohol, and tobacco. The adoption of a dress code in the Fort Thomas Public School District in Kentucky was challenged in court and the dress code was upheld.4 The court found that the authority provided under KRS 160.345(2)(c)(1) was reasonable and legitimate and that the dress code adopted by a middle school did not violate a student’s First Amendment right to freedom of expression, her substantive due process right to wear the clothes of her choosing, or her parent’s substantive due process right to control the dress of his child. The dress code did not interfere with the father’s right to direct the education of his daughter and there was no due process violation, as the father had ample knowledge of the dress code proposal and had even attended meetings where it was discussed. The complaint did not allege any religious objection to the code or express the desire to convey a particular message through attire. School districts have the constitutional right to utilize a student dress code. The First Amendment only protects student conduct that conveys a particularized message that can be understood by those who view it.

When is Student Clothing Considered Speech? Student clothing is considered speech if it sends a particular message and the message is capable of being understood by others. If clothing is not speech, a school can discipline the student as long as there is a legitimate reason. If clothing is speech, a school can discipline the student only if there is a compelling reason. This continues to be a litigated area involving attempts of various schools to ban certain items of clothing and certain racial symbols. The federal courts continue to define the parameters under the First Amendment.

What Can Be Restricted? Marilyn Manson T-shirts A school is allowed to censor speech that is reasonably viewed as promoting illegal drug use.5 Clothing that is found to be offensive under school dress code policies, such as Marilyn Manson T- shirts, have been successfully restricted under Fraser.6 The court held that the school prohibited the T-shirts because Lexington, Kentucky the musical group promotes “disruptive

November 2008 Bench & Bar 15 and demoralizing values which are Beaubien Elementary School choose a court relied on Karr v. Schmidt,11 which inconsistent with and counter-produc- class T-shirt from designs submitted by held that there is no constitutional right tive to education.” the students. A group of students in the “to wear one’s hair in a public high gifted program voted for one particular school in the length and style that suits Logos T-shirt design. When that T-shirt design the wearer” and rejected the student’s A U.S. District Court held that a Jef- did not win the contest and the teacher claim that his First Amendment rights ferson County school uniform policy is refused to explain her runoff system, the were violated in denying a hairstyle of content neutral even if it prohibits logos “gifties” (as the students in the gifted choice, particularly favored by African- other than that of the school.7 Items of program called themselves) wore T-shirts American males. clothing such as logos, shorts, cargo with the losing design and the words pants, jeans, jewelry worn outside uni- “Gifties 2003” instead of wearing the T- Clothing and Jewelry Requirements forms, and other items, can be banned shirt that was the winner of the contest, The constitutionality of a Nevada by the student dress code policy if the as a form of protest. The vice-principal high school’s mandatory uniform dress policy was reasonably related to the had previously told the students that if code was upheld in a lawsuit that legitimate educational objectives of they wore the “Gifties” shirt, they would claimed it violated the students’ rights to avoiding school disruption, fighting, and violate the school’s uniform discipline free exercise of religion and free speech. gang-related issues. code. The court found that the T-shirts The school adopted a “dress restriction” did not become protected expression requiring students to wear khaki pants Anti-Nazi Patch merely because they were worn in and red, white or blue shirts with no An “anti-Nazi” patch was found to protest. The court also concluded that printed materials.12 A student was sus- likely cause a substantial disruption of even if the T-shirt was speech, school pended for failing to comply with the school activities and the removal of the officials had the authority to ban the restriction when she failed to abide by patch did not violate the student’s First shirts based on the holding in Hazelwood the policy and wore shirts bearing reli- Amendment rights.8 This particular high that “a school need not tolerate student gious messages. The court held that, for school had a history of violent threats speech that is inconsistent with its ‘basic clothing to be considered to be expres- and bullying between two rival cliques. educational mission.’”9 sive, the wearer must have the “intent to convey a particularized message,” and it Clothing Worn as Protest Braids and Hair Style must be very likely that the message The Seventh Circuit ruled that a group A Louisiana school policy barring would be understood by observers. The of students who were disciplined for male students from wearing braids was court held that student attire may indeed wearing a banned T-shirt to protest the determined to deserve further considera- constitute speech on many levels, and outcome of the school’s official T-shirt tion as possible gender discrimination, thereby implicate First Amendment contest were not engaged in expression but a student’s claims of race discrimi- rights. Students who sought to wear reli- protected by the First Amendment. Each nation and First Amendment violations gious articles were entitled to First year the eighth grade students at were found to have no merit.10 The Amendment protection but others, who had no intent to convey any particular message, had no such protection. The Seventh Circuit upheld the student code of conduct and denied a student’s request for a preliminary injunction that would have allowed her to wear body-piercing jewelry to her high school. The code of conduct limited pierced jewelry to the ears while the student wore pierced jewelry on her body and she had piercings on her tongue, nasal septum, lip, navel and chest. The court held that a reasonable person would not interpret the body jewelry as conveying any type of message, whether particularized or less specific.13

What Cannot Be Restricted? Political Speech Some examples of dress that are considered speech are a “Bush stinks” T-shirt, political buttons, or any item that expresses a particularized message capable of being understood. Student

16 Bench & Bar November 2008 religious speech cannot be curtailed where the school officials would not fere with the requirements of appropri- unless the school can show an permit the student to wear a T-shirt to ate discipline in the operations of the absolutely compelling reason to do so, high school with the words “Be schools. In some schools, there may be and that there are no less restrictive Ashamed, Our School Embraced What sufficient history of racial animus to alternatives available. A Vermont school God Has Condemned” on the front and justify banning the Confederate flag on district violated a student’s free speech “Homosexuality Is Shameful. Romans clothing. In others there may not. A fact rights when it disciplined the student for 1:27” on the back. The court held that specific inquiry must be conducted to wearing a T-shirt critical of President public schools could restrict student make that determination. Bush that featured drug and alcohol speech that intruded upon the rights of The U.S. Court of Appeals for the related images and text.14 other students.16 Sixth Circuit held that the decisions of However, the Seventh Circuit held two Kentucky students to wear Hank Views Regarding Abortion that a student was entitled to a prelimi- Williams, Jr. T-shirts, in order to com- A school district in New York could nary injunction as he was likely to memorate the birthday of Hank not ban a T-shirt that proclaimed, succeed on the merits of his claim that Williams, Sr., and to express their “Abortion is Homicide.”15 The court the school would violate his free speech southern heritage constituted free determined that the school district was rights by preventing him from wearing a speech under the First Amendment.18 attempting to regulate the content of the T-shirt with the slogan “Be Happy, Not The T-shirts contained the symbol of the student’s political speech. Since there Gay.”17 Confederate flag, which the school prin- was no evidence of a material or sub- cipal found to be in violation of the stantial disruption in the school, the The Confederate Flag dress code. After the students refused to message met the Tinker standard and There is increasing activity on behalf take off or turn the T-shirts inside out, could not be banned. of the Sons of Confederate Veterans to the principal suspended them. challenge schools that ban the Confed- In determining that the students’ con- What May Sometimes be Restricted erate flag. Schools should not ban the duct qualified as speech protected by Life-Style Comments Confederate flag unless there has been a the First Amendment, the court applied The Ninth Circuit held that the Dis- history of racial conflict and permitting the Supreme Court’s standard in Texas trict Court properly denied the student’s the Confederate flag to be displayed v. Johnson19 and determined that the request for a preliminary injunction would materially and substantially inter- students had an intent to convey a par-

November 2008 Bench & Bar 17 ticular message and that the message school. Blount County Schools had con- A new principal began working in was “easily ascertainable by observers.” cluded that wearing the Confederate flag the school in the 2004-05 school year The court could not determine from the had a significant disruptive effect on the and her experience at three other facts whether school officials had selec- ability of school officials to maintain a schools included serious incidences of tively applied the dress code to some proper education environment. racial violence that involved the use of racially sensitive symbols but not others The Sixth Circuit rejected the plain- the Confederate flags. Shortly there- or whether the school had a history of tiffs’ contention that the lower court’s after, the high school added a ban on racial violence necessitating the ban. finding “requires a presumption that the “the Rebel flag” to the dress code. The The case was remanded for trial with Confederate flag is per se ‘racially divi- student who was subsequently disci- instructions that the district court apply sive’ and in essence rises to the level of plined wore a shirt depicting the Tinker in determining whether the stu- judicially noticed fact.” Noting that Confederate flag to school almost every dents’ speech was protected by the First other courts have taken notice of the day and also had a belt buckle depicting Amendment. inherently racially divisive nature of the the flag that he wore to school each day. However, in 2007, the U.S. Court of Confederate flag, the Sixth Circuit The new principal confronted the stu- Appeals for the Sixth Circuit ruled that stated that “even if some recognition of dent and explained the Confederate officials at a Tennessee high school did the flag’s racially divisive nature is flags were banned from school and not violate students’ free speech rights implicit in the district court’s finding, placed him in detention for violating the by prohibiting clothing that depicts the that finding is not rendered clearly erro- ban. The student sued the District, Confederate battle flag.20 The principal neous thereby,” and, “even assuming school board and principal for First told students wearing clothing with Con- that no students’ wearing of that symbol Amendment violations. federate flags on them that they would had caused a disruptive incident in the The court held that schools may pro- be suspended unless they covered up the past, the district court nonetheless rea- hibit students’ speech or conduct that is symbols or removed the shirts. The sonably could conclude that displays of materially disruptive, involves substantial Blount County Schools’ dress code pro- the Confederate flag would be likely to disorder or invades the rights of others. hibits clothing that “causes disruption to lead to unrest in the future.” However, a school must show a specific the educational process.” The students The court also declined to find that and significant fear of disruption, not just sued, claiming that their free speech the dress code was enforced in a view- a remote apprehension of disturbance, in rights were violated; that the school has point specific manner. The court found order to suppress student speech. permitted other controversial expres- that the U.S. Supreme Court’s decision There was evidence the school did sions, such as foreign flags, Malcolm X in Tinker does not require that “the not enforce its ban on prohibited mes- symbols, and political slogans; and that banned form of expression itself actu- sages related to alcohol and other no disruption has resulted from the flag. ally have been the source of past expressions, such as “Malcolm X” T- School officials responded by reporting disruptions.” Rather, “subsequent appel- shirts. Approximately 75% of the on racial tensions at the school during late court decisions considering school school’s students wore flag parapherna- the 2004-05 and 2005-06 school years bans on expression have focused on lia to school prior to the policy change that required the stationing of county whether the banned conduct would without complaints or racial incidences. sheriff’s department deputies at the likely trigger disturbances such as those The court held that school boards experienced in the past.” During the could ban racially divisive symbols only prior school year, the court noted, where there had been actual racially Michael A. Owsley is a partner of the Blount “had been the scene of racial motivated violence and when a policy Bowling Green law tension, intimidation and violence to was enforced without viewpoint dis- firm of English, such an extent that law enforcement crimination. The court held it was Lucas, Priest & officials were brought in to maintain unnecessary to ban the Confederate flag Owsley, LLP. He received his B.S. order, and the school was defending to maintain school order and discipline from Western Ken- against lawsuits depicting it as a racially and that the policy could not be used to tucky University in hostile educational environment.” bar lawful, non-violent and non-threat- 1964 and earned A West Virginia high school faced a ening symbols. his J.D. from the situation where the high school student Here the court held that the principal University of Louisville School of Law in 1968. Mr. Owsley’s practice is focused population was 98.6% white and had had acted with only a remote apprehen- on education, labor and employment, had only one racial incident early in the sion of disturbance, not a specific and products liability and business litigation. 2004-05 school year, which involved significant threat of disruption, and the He serves as a mediator and as an arbi- the defacing of an African-American applicable prohibition in the dress code trator in matters relating to his areas of 21 practice. Mr. Owsley is a past president student’s notebook with racial slurs. In was invalid. However, the court cau- of the Kentucky Council of School Board prior years, the school board’s dress tioned that its opinion should not be Attorneys. He advises numerous school code did not mention Confederate flags interpreted as a “safe haven” for those boards and school districts on education but did disallow dressing or grooming who would use the flag for disruption or law issues, including student issues, “in a manner that disrupts the educa- intimidation. Should that occur, the very employment disputes and First Amend- ment matters. tional process or is detrimental to the ban that it struck down might then be health, safety or welfare of others.” appropriate.

18 Bench & Bar November 2008 Summary 031 (D.N.H. 2006), dismissed on petition for cert. denied, 127 S.Ct. If a school cannot show that viola- appeal, 201 Fed.Appx. 7, 215 Ed. 3054 (2007). tions of the dress code have had a Law Rep. 651 (1st Cir. 2006). (Not 15. K.D. v. Fillmore Central School disruptive effect on the educational selected for publication in the Fed- District, 2005 WL 2175166 (W.D. process, it will be difficult to prevail if eral Reporter). N.Y. 2005). (Not reported in F. a student challenges the dress code. The 9. Brandt v. Bd. of Educ. of Chi., 480 Supp. 2d). standards set in Tinker, Hazelwood, and F.3d 460 (7th Cir. 2007), rehearing 16. Harper ex rel. Harper v. Poway Fraser are still good today and should and rehearing en banc denied, 480 Unified Sch. Dist., 445 F.3d 1166 be followed when addressing school F.3d 460, 217 Ed. Law Rep. 123 (9th Cir. 2006), vacated as moot, --- dress codes. School officials should (7th Cir. 2007), petition for cert. U.S. ----, 127 S.Ct. 1484, 167 carefully review the factual situation denied, 128 S. Ct. 441, 169 L.Ed.2d 225 (2007). they face to determine if the accepted L.Ed.2d 308, 76 U.S.L.W. 3083, 17. Nuxoll ex rel. Nuxoll v. Indian legal standards have been violated and 76 U.S.L.W. 3197, 76 U.S.L.W. Prairie School Dist. #204, 523 F.3d that those standards are being uni- 3198, 225 Ed. Law Rep. 52 (2007). 668, 231 Ed. Law Rep. 618 (7th formly applied before banning items of 10. Fenceroy v. Morehouse Parish Cir. 2008). clothing. School Board, 2006 WL 39255 18. Castorina v. Madison County Sch. (W.D.La. 2006) (Not reported in F. Bd., 246 F.3d 536, 152 Ed. Law Traci Duff, a paralegal at English, Supp. 2d). Rep. 524, 2001 Fed.App. 0064P Lucas, Priest & Owsley, LLP, is recog- 11. 460 F.2d 609 (5th Cir. 1972). (6th Cir. 2001). nized for her valuable contribution to 12. Jacobs v. Clark County School Dis- 19. 491 U.S. 397, 109 S. Ct. 2533, 105 this article. trict, 373 F. Supp. 2d 1162, 199 Ed. L. Ed. 2d 342 57 U.S.L.W. 4770 Law Rep. 701 (D. Nev. 2005), (1989). ENDNOTES aff’d 526 F.3d 419, 232 Ed. Law 20. D.B. v. Lafon, 217 Fed. Appx. 518, 1. Tinker v. Des Moines Indep. Com- Rep. 578 (9th Cir. 2008). 219 Ed. Law Rep. 484, 2007 munity Sch. Dist., 393 U.S. 503, 89 13. --- F.Supp.2d ----, 2007 WL 121342 Fed.App. 0145N (6th Cir. 2007). S. Ct. 733, 21 L. Ed. 2d 731 (M.D. Fla. 2007). 21. Bragg v. Swanson, 317 F.Supp.2d (1969). 14. 461 F.3d 320 (2d Cir. 2006), 814 (W.D. W. Va. 2005). 2. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549, 4 U.S.L.W. 5054, 32 Ed. Law Rep. 1243 (1986). 3. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592, 56 U.S.L.W. 4079, 43 Ed. Law Rep. 515, 14 Media L. Rep. 2081 (1988). 4. Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 196 Ed. Law Rep. 118, 2005 Fed.App. 0058P (6th Cir. 2005). 5. Depinto v. Bayonne Bd. of Educ., 514 F.Supp.2d 633, 225 Ed. Law Rep. 896 (D.N.J. 2007). 6. Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465, 146 Ed. Law Rep. 629, 2000 Fed.App. 0249P (6th Cir. 2000), petition for cert. denied, 532 U.S. 920, 121 S.Ct. 1355 (U.S. 2001). 7. Long v. Bd. of Educ. of Jefferson County, Kentucky, 121 F.Supp. 2d 621 (W.D.Ky. 2000), aff’d 21 Fed.Appx. 252 (6th Cir. 2001). (Not selected for publication in the Federal Reporter). 8. Gov. Wentworth Regl. Sch. Dist. v. Hendrickson, 421 F. Supp. 2d 410, 208 Ed. Law Rep. 372, 2006 DNH

November 2008 Bench & Bar 19

EDUCATION LAW

From Armbands and MySpace to Cell Phones: Interesting School Law Cases Across the Country

By Susan Hanley Duncan free speech rights. The lower court’s idation, and alcohol use. After admitting issuance of a permanent injunction pro- responsibility for creating the website he last two decades, in particular, hibiting school officials from account, Justin was suspended for 10 T have been characterized by expo- disciplining students for wearing the days, assigned to an alternative educa- nential advances in technology, armbands was upheld. A jury denied tional program, and barred from school especially by personal access to ever plaintiff students either compensatory or social activities. The district court held more sophisticated electronic devices punitive damages, but the court did that Justin’s First Amendment free for information retrieval and communi- award nominal damages of $1.00 per speech rights had been violated by the cation. Concomitant changes in cultural student. Plaintiffs were also awarded punishment. mores relative to the use of such devices $37,500 in attorney fees. Justin’s parents had also asserted a have widened the intergenerational gap, Over thirty junior high and high violation of their right to raise their affecting all institutions, including law school students had worn the armbands child as they see fit, arguing that the and education. These generational dif- to protest Watson Chapel School Dis- school’s punishment precluded their ferences arise in the everyday lives of trict’s dress code, which required right to give their child “the most per- the nation’s school children, their par- student dress of khaki pants with belt sonal and important moral, political, and ents, and their educators. While we can loops and a white polo shirt with two or religious values,” and it should have expect the continuing explosion in tech- three buttons. Many students were pun- been up to them to impose a punish- nology, particularly in hand-held ished for wearing the armbands. The ment. The district court did not agree. personal electronic devices, to pose school district admitted punishment was On appeal, the school district con- heretofore-unimagined legal questions, based upon the armbands’ indication of tends there was no First Amendment even today the changing culture has disagreement with the dress code, even violation because the MySpace page was given rise to some thorny issues, some though the actual wearing of the bands “vulgar, defamatory and plainly offen- of which will be briefly described here did not disrupt any school proceeding. sive school-related speech.” Since Justin as they have arisen in various courts The Eighth Circuit concluded that the downloaded a picture of Mr. Trosch across the country.1 case was governed by the U.S. Supreme from the school’s website, school offi- court’s decision in Tinker v. Des Moines cials argue that his “speech” began on First Amendment Protections for Independent Comm. Sch. Dist., 393 U.S. campus, thus it was not protected as Freedom of Speech 503 (1969), which provided that student “off-campus speech.” This argument, speech may by restricted only when it states the parents’ attorney, Kim M. Wat- Many actions of this nature have causes a material disruption or substan- terson, “advance[s] an unprecedented arisen for decades on high-school and tial interference with the school’s and radical assertion that schools’ sub- college campuses with regard to student operations. stantial authority over students’ publications and the right to free Another case of punishment of stu- in-school expression extends into the speech. While those cases provide little dent speech involves a student’s use of larger community and even students’ guidance for resolution of the more MySpace, a popular social-networking homes.” She further argues, in response exotic issues of the day, they can pro- site. In Layshock v. Hermitage Sch. to the school district’s claim that the vide a framework for analysis. The Dist., 2007 WL 3120192 (W.D.Pa., Oct. speech was directed at the school district following case is neither a technology 23, 2007), a decision from the Western community and the principal, that the issue nor one unique to modern culture; District of Pennsylvania, currently on district sought to justify the need for it is a general case involving a dress appeal pending review by the Third Cir- such far-reaching authority by pointing code, but gives the flavor of matters cuit Court of Appeals, limited school to the responsibility of school districts currently surfacing in the education officials’ authority to discipline students for “imparting upon students lessons of environment. for speech occurring outside of school. civilized behavior,” and “prepar[ing] stu- In Lowery v. Watson Chapel Sch. There, high school student Justin dents for life after graduation ... But, the Dist., Nos. 07-3437/08-1139 (8th Cir. Layshock and his parents sued the future that the School District ... seeks[s] Sept. 2, 2008), the Eighth Circuit Court school district for punishment Justin to prepare students for is one in which of Appeals held that an Arkansas school received for creating a false MySpace they unquestionably accept government district’s ban on armbands worn by stu- account for his principal, Eric Trosh. censorship and restrictions on their con- dents to protest the district’s dress code The website ridiculed Mr. Trosh’s size stitutional rights.” violated the students’ First Amendment and alluded to sexuality, steroids, intim- In another contemporary First

20 Bench & Bar November 2008 Amendment case, Frazier v. Winn, No. speech in this case could reasonably be 06-14462 (11th Cir. July 23, 2008), the expected to harm homosexual students, Attention Legal Eleventh Circuit Court of Appeals the school’s interest in protecting stu- struck down a Florida statute requiring dents from harassment allows the school all students to stand at attention during to prohibit this harmful speech. The stu- Professionals the recital of the Pledge of Allegiance, dent’s claim of a violation of her right to including those students excused from religious freedom failed because the Lower Your Health actually reciting the Pledge. A Palm school had not discriminated against her Beach County High School student, on the basis of her religious beliefs, but Care Costs, Not Cameron Frazier, claimed the law was rather on the harmful expression of those not only invalid on its face, but also as beliefs. Your Expectations. applied to him. The Court upheld the statute’s First Amendment Establishment of requirement for parental permission for Religion and School Prayer a student to be excused from recitation, Another question concerning the Affordable Individual stating that this provision protected par- Establishment Clause arose in the case Coverage Ideal For: ents’ rights to educate their children. of Borden v. E. Brunswick Sch. Dist., The Court struck down the requirement No. 06-3890 (3d Cir. Apr. 15, 2008). Small Businesses for all students to stand at attention as a There, the Third Circuit Court of Independent Contractors violation of plaintiff’s First Amendment Appeals held a New Jersey school dis- right to freedom of speech. If the trict’s policy banning faculty COBRA/Alternative invalid condition was severed, the Court participation in student-initiated prayer held the statute otherwise enforceable. was not unconstitutional on its face or as Self-Employed applied to the high school football coach First Amendment Freedoms of who challenged it. The Court found a Speech and Religion violation of the Establishment Clause In the case of Harper v. Poway Uni- from the coach’s silent acts of bowing fied Sch. Dist., No. 04-1103 (S.D. Cal. his head or kneeling during the football Feb. 11, 2008), a federal district court in team’s prayer. The coach had engaged in California upheld a school’s ban on a the practice for twenty-three years, often student’s T-shirt expressing religious leading the team in prayer. The Court objection to homosexuality. The student therefore concluded that his direct par- brought suit claiming the ban violated ticipation constituted an “endorsement her First Amendment rights of free of religion.” The Court specified that if speech and free exercise of religion. the history of engaging in prayer were Relying on Tinker v. Des Moines Inde- not present—if a coach merely bowed pendent Comm. Sch. Dist., 393 U.S. 503 his head during a moment of silent Call me (1969), the Court concluded that the T- reflection—it would have reached a dif- today for a shirt expression was properly ferent conclusion since there would be characterized as speech that “intrudes no endorsement of religion. free quote! upon ... the rights of other students.” Because the policy forbade only Moreover, the ban was justified because expression amounting to school spon- “harassment on the basis of sexual orien- sorship of prayer, the Court rejected "2)!. .)#(/,3 tation adversely affects the rights of plaintiff’s contention that the policy was Louisville: 502-889-2007 public high school students and because unconstitutionally overbroad, and fur- the T-shirt worn by [the student] fell ther concluded the word “participate” Lexington: 859-226-5390 under the category of T-shirts that flaunt was not unconstitutionally vague. Toll-Free: 866-817-5087 demeaning slogans, phrases or aphorisms Finally, the Court found the policy relating to a core characteristic of partic- properly served the school district’s [email protected] ularly vulnerable students ... that may “legitimate educational interest in www.briannichols-insurance.com cause them significant injury.” That rea- avoiding Establishment Clause viola- soning is also supported by the Supreme tions.” Court’s decision in Morse v. Frederick, 127 S.Ct. 2618 (2007), which found Parents’ Rights to Control Education Anthem Blue Cross and Blue Shield is the trade name of Anthem Health of Children Plans of Kentucky, Inc. Independent licensee of the Blue Cross and Blue speech promoting drug use was harmful Shield Association. ®ANTHEM is a registered trademark. The Blue Cross and Blue Shield names and symbols are registered marks of the Blue Cross and and may be restricted by schools. Since In Combs v. Homer-Center Sch. Blue Shield Association. the demeaning message expressed by the Dist., Nos. 06-3090, 06-3091, 06-3092,

November 2008 Bench & Bar 21 06-3093, 06-3094, 06-3095 (3d Cir. government action to be rationally Since the prohibition of cell phones was Aug. 21, 2008), the Third Circuit Court related to a legitimate governmental pur- a “decision of a school official involv- of Appeals, in a per curiam decision, pose. The Court found “a legitimate ing an inherently administrative process, held that a condition of Pennsylvania’s interest in ensuring children taught which is uniquely part of that official’s compulsory education law compelling under home education programs are function and expertise, [the case] pres- parents of home schooled students to achieving minimum educational stan- ents a nonjusticiable controversy.” submit to certain reporting and review dards and are demonstrating sustained Moreover, if the issue was appropriate requirements does not violate the par- progress in their educational program” for review, the Court stated the ban was ents’ rights under the First and and the statute’s requirements “rationally not arbitrary and had a rational basis for Fourteenth Amendments. The Court further these legitimate state interests.” its inception. Finally, the Court rejected also refused to entertain the parents’ the parents’ constitutional claims, ruling state law claim under the Pennsylvania’s Cell Phones in the Classroom the ban did not affect the parents’ right Religious Freedom Protection Act In the case of Price v. New York City to “raise their children in the manner in (RFPA) and their constitutional right to Bd. of Edu., 2008 NY Slip Op. 03512 which they see fit” because no essential control their children’s education. (N.Y. Sup. Ct., App. Div. Apr. 22, child-rearing function was being denied. The Court concluded that the compul- 2008), the New York Supreme Court, An interesting case regarding, inter sory education law was a neutral law Appellate Division, upheld the New alia, the use of cell phones during that “neither targets religious practice York City school district’s ban on stu- exams was reported by Scott Martindale nor selectively imposes burdens on reli- dent possession of cell phones in in the July 30, 2008 issue of the Orange giously motivated conduct.” Children school. The parents asserted that a ban County Register. An Orange County, home schooled for religious purposes on the use of cell phones is acceptable, California judge denied a student are treated no differently than those but a ban on possession violated the group’s request for a temporary restrain- home schooled for secular reasons—par- parents’ right to communicate with their ing order to stop the Educational ents alike must comply with the children. Testing Service (ETS), administrator of reporting and review requirements. The The appellate division stated the case the Advanced Placement exams, from Pennsylvania law is thus subject to was “wholly a matter of policy and dis- requiring 375 Mission Viejo High rational basis review, which requires crete issues of law are implicated.” School students to retake the exams.

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22 Bench & Bar November 2008 The student coalition sued ETS after it reasonableness.” Even though the stu- second prong, the Court found no spe- invalidated 690 Advanced Placement dents have a lower expectation of cial needs exception permitting a exam scores, arguing the company did privacy in a school setting, it was rea- departure from the warrant requirement. not fully investigate the cheating allega- sonable to conclude that students would Additionally, it found it could not “draw tions and improper proctoring and not expect anyone to videotape them a principled line permitting drug testing demanding a “good faith” investigation. without their knowledge as they [for] only student athletes.” If such test- This investigation would determine undressed. The Court concluded that it ing was allowed, schools could also test whether the testing conditions, includ- was the scope of the video surveillance those participating in any extracurricular ing cell phone use during exams, that violated the students’ reasonable activities or even the entire student body. improper seating arrangements, and expectation of privacy; that privacy unsupervised restroom breaks, affected right is more important than the school’s Assaults Upon Students: the students’ scores. According to Supe- security concerns. A Miscellany of Insult rior Court Judge Jamoa Moberly, since In a similar case, York v. Wahkiakum Several cases of students bullying 266 students planned to retake the tests, Sch. Dist. No. 200, No. 78946-1 (Wash. students have recently arisen in Ken- it was in the best interest of everyone 2008), the Washington State Supreme tucky. One such case involves five girls that the testing go forward. Court held that random drug testing of in Casey County who settled their bully- student athletes violates a state constitu- ing lawsuit during the summer of 2008.2 Fourth Amendment Rights of tional provision that “[n]o person shall The settlement is confidential but it Students be disturbed in his private affairs, or his included monetary damages and In Brannum v. Overton Co. Sch. Bd., home invaded, without authority of requires the school to change proce- No. 06-5931 (6th Cir. Feb. 20, 2008), law.” Even though the Court had previ- dures and rules to better protect their the Sixth Circuit Court of Appeals held ously decided that random drug tests do students. The girls alleged that they that the use of video surveillance in not violate the Fourth Amendment of were verbally and physically abused and middle school boys’ and girls’ locker the U.S. Constitution, it had never con- that school officials discounted or rooms violated their right to privacy templated whether such tests violated downplayed the bullying. In fact, one under the Fourth Amendment’s prohibi- the state constitution. In order to deter- school official purportedly told a victim tion against unreasonable searches. mine whether the state constitution gave she needed to “toughen up.” Relying on long-standing Supreme an individual greater protection than the Bullying suits have been filed on Court precedent, the appeals court Fourth Amendment, the Court estab- behalf of even more children in other found “the ultimate measure of constitu- lished a two-part test: (1) whether Kentucky counties.3 Parents filing one tionality of such searches is one of asking student athletes to proved urine of the suits claim the school is responsi- samples constitutes a “disturbance of ble for their child’s suicide. Suicides as one’s private affairs” and, if so, (2) a result of bullying have become com- Susan Hanley whether the “authority of law” justifies mon enough to earn their own Duncan (formerly the intrusion, which is satisfied by a designation: “bullycide.” Kentucky par- Kosse) received a warrant or “a few jealously guarded ents are not alone in their anger about B.A. from Miami University and a exceptions.” how their children’s schools deal with J.D. from the With respect to the first prong, the bullying as evidenced by the many law- University of Court concluded that a student’s privacy suits filed across the country.4 Louisville. She interest is violated when required to pro- Lexington Herald-Leader reporter joined the University of vide an onsite urine specimen. As to the Steve Lannen wrote an article in the Louisville School of Law faculty as an adjunct in 1997 and full time in 2000. Her teaching and research interests are in lawyering skills and education law. Professor Duncan's scholarship has focused primarily on the issues surrounding children, including C. CLEVELAND GAMBILL the need for anti-bullying laws and laws Retired United States Magistrate Judge protecting children from pornography on the Internet. She is also a frequent pre- senter on legal writing and education law MEDIATION SERVICES topics. Professor Duncan has been a visiting Professor at the University Statewide KwaZulu-Natal, South Africa (April 7- April 18, 2008), as well as at the Louisville • 502.931.7103 Johannes Gutenberg University, in Mainz Germany, at the University of Leeds, Lexington • 859.317.0303 England, and the University of Turku, [email protected] Finland.

November 2008 Bench & Bar 23 April 19, 2008, issue about an “assault 1983 also establishes a claim for sexual NSBA.org website, a useful by peanut butter” case. After putting discrimination in an educational setting. resource for those interested in crumbled peanut butter cookies in the The suit arose when a third grade stu- school law. lunch box of another student with a dent, while riding the school bus, 2. Todd Kleffman, Settlement reached severe peanut allergy, a middle school sexually harassed a kindergarten girl. in Casey bullying lawsuit, student is facing felony charges. Luckily, School officials’ response was to have http://www.kentuckynews.net/Ken- the allergic student did not eat the cook- the kindergartner switch buses, but the tucky/Liberty-News/16211.html. ies and suffered no harmful parents were not pleased with this result. 3. Connie Leonard, Three families file consequences due to their presence. It Plaintiff parents contend that Title IX suit over school bullying, was well known among the student body has strict limitations after the Supreme http://www.wave3.com/Global/stor that the student had a severe peanut Court held that school districts may be y.asp?S=8403871. allergy and even trace amounts of peanut held responsible for sexual harassment 4. Tatiana Zarnowski, Parents sue oil might cause severe reactions or pos- in schools only when school officials over Bullying, http://www.cumber- sibly death. Given this information, the had actual notice of the harassment and link.com/articles/2003/12/23/news/ student was charged with felony wanton reacted with deliberate indifference. On news03.txt; Jeff Holtz, Worth Not- endangerment, because he engaged in the other hand, Section 1983 is the ing; Parents File Lawsuit Over conduct that may cause death or physi- source for sexual harassment claims that bullying of Daughter, cal injury to another person. The student assert a violation of the Equal Protec- http://query.nytimes.com/gst/ is facing charges in the juvenile criminal tion Clause of the Fourteenth fullpage.html?res=9405EED91E39 justice system and in administrative pro- Amendment. Arguments will be held on F93AA35752C0A9639C8B63; ceedings by the school board. December 2, 2008. Martha Neil, Bullied at School for Finally, on the national scene, the Years, Billy Wolfe Brings Suit, U.S. Supreme Court has granted review Special thanks go to Megan Reese, With His Parents’ Help, in the case of Fitzgerald v. Barnstable third year law student at the University http://abajournal.com/news/ Sch. Comm., 128 S.Ct. 2903 (2008), to of Louisville School of Law, for compil- bullied_at_school_for_years_billy_ decide whether Title IX, the federal civil ing case summaries. wolfe_brings_suit_with_his_ rights law, is the exclusive remedy for parents_help/; Raad Cawthorn, Par- sexual harassment cases in public ENDNOTES ents of bullies’ victims fight back schools. There is a split in the federal 1. Substantial information for this by suing schools, http://www.jared appeals courts about whether Section article was obtained from the story.com/bull27.html.

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24 Bench & Bar November 2008 EDUCATION LAW

Education of Gifted Students in Kentucky

By Karen Quinn gifted students was woefully inade- needs of other exceptional children.”2 quate, that teachers were insufficiently However, when the legislature has cre- n 1990, as part of the Kentucky Edu- trained for working with the special ated a system of statutes and rules Icational Reform Act (KERA), the needs of gifted students, gifted students which benefit a group and which are Kentucky legislature defined “gifted” were often not properly identified, and going currently unimplemented, it falls students as exceptional students entitled that adequate services were not pro- to members of the bar and to parents to to specified services to meet their needs. vided to them.1 advocate for these students, to work Sixteen years after KERA’s passage, the The term “gifted” is perhaps unfortu- constructively with school districts, and promise the Legislature made to gifted nate, as it plays into stereotypical to see that the law becomes reality in students by enacting legislation appears notions of this group of students as priv- every school district across Kentucky. to have gone largely unimplemented. ileged and elitist. The reality is that this On November 17, 2005, the Kentucky group of students is one with unique The Statutory Framework Advisory Council for Gifted and Tal- needs, needs that typically go unmet. As While gifted students were histori- ented Education and the Focus Group stated by Dr. Julia Roberts at the Center cally limited by definitions that focused on Gifted Education in Kentucky issued for Gifted Studies at Western Kentucky solely upon academic abilities, current their White Paper, making an Urgent University, “Gifted students don’t look legal definitions recognize a broader Call for Action to address the needs of needy because their needs are created array of giftedness. Pursuant to the fed- Kentucky’s brightest students. The by their strengths. Reality finds these eral definition, “gifted and talented” White Paper found that funding for needs to be every bit as intense as the students are classified as those who

November 2008 Bench & Bar 25 “give evidence of high achievement coordinated program of scientifically ented by “informal selection and diag- capability in areas such as intellectual, based research, demonstration projects, nosis” in the primary school years, and creative, artistic, or leadership capacity, innovative strategies, and similar activi- by “formal identification and continuous or in specific academic fields, and who ties designed to build and enhance the diagnosis” in grades four through need services or activities not ordinarily ability of elementary schools and sec- twelve.15 Identification in the primary provided by the school in order to fulfill ondary schools nationwide to meet the years includes use of at least three of their potential.”3 The Kentucky defini- special educational needs of gifted and the following assessment options: col- tion is similarly wide-ranging, applying talented students.”6 The act establishes a lection of evidence demonstrating to any student who is in possession of National Research Center for the Educa- student performance, inventory check- “demonstrated or potential ability to tion of Gifted and Talented Children lists of behaviors specific to gifted perform at an exceptionally high level and Youth, as well as funding in the categories, diagnostic data, continuous in general intellectual aptitude, specific form of innovative assistance programs progress data, anecdotal records, avail- academic aptitude, creative or divergent to local educational agencies that pro- able formal test data, parent interview thinking, psychosocial or leadership vide programs for the gifted and or questionnaire, primary review com- skills, or in the visual or performing talented.7 mittee recommendation, petition arts.”4 In Kentucky, the Supreme Court has system.16 The regulation is open ended Both definitions focus not only upon held that education is a “fundamental as it concludes the list with “other valid students’ actual performances but upon right.”8 The Legislature has declared and reliable documentation.”17 Identifi- their potential. While much talk has that all students in Kentucky “have a cation for students in grades four been given to “narrowing the gap” in right to an appropriate and quality edu- through twelve is more structured, rely- student performances, the key task cation.”9 Gifted students are classified ing not just on the informal methods as remains to narrow the gap for all stu- as “exceptional children.”10 This charac- used in the primary program, but also dents between their actual performance terization entitles these students to more formal diagnostic criteria for and their potential one. That gap still certain entitlements from the school dis- determining general intellectual ability, remains broad for Kentucky’s gifted stu- trict: programs to serve them must be specific academic aptitude, creativity, dents: 20% of gifted and talented established,11 local districts who lack leadership, and visual and performing children scored novice or apprentice sufficient numbers of children for a pro- arts.18 (the lowest rankings) in their portfolio gram must provide one by contract with Under the regulation, gifted students scorings.5 another public school district or private are mandated to receive differentiated Unlike exceptional students with dis- organization,12 and each student is enti- services that meet their individual abilities, exceptional students who are tled to an individual education plan needs. “A student diagnosed as possess- gifted find that their rights and entitle- (IEP) that will function as the center- ing gifted characteristics, behaviors or ments are nearly exclusively a matter of piece of the student’s education and be talent shall be provided articulated, pri- state rather than federal law. The few used to monitor the student’s progress.13 mary through grade twelve (12) services federal provisions that exist consist of Implementation of the statutory man- which: (a) are qualitatively differenti- funding and grant options for programs date for gifted education is provided by ated to meet his individual needs; (b) working with gifted students, rather regulation, which focuses chiefly upon result in educational experiences com- than creating any statutory entitlements. identification of gifted students and pro- mensurate with his interests, needs and The main federal statute for gifted stu- vision of services to gifted students, as abilities; and (c) facilitate the high level dents is the Jacob K. Javits Gifted and well as different duties and data collec- of attainment goals established in KRS Talented Students Education Act of tion required of the school district.14 158.6451.”19 The key here, and the 2001, whose purpose is to “initiate a Children are identified as gifted and tal- mandate, consists of the entitlement to differentiation, which is defined as “a method through which educators shall establish a specific, well-thought-out- match between learner characteristics in terms of abilities, interests, and needs, and curriculum opportunities in terms of enrichment and acceleration options which maximize learning opportunities.”20 While the school is mandated to dif- ferentiate and to meet the student’s needs, the school can meet those needs through a variety of service options, with the caveat that no single service delivery option existing alone is

26 Bench & Bar November 2008 sufficient.21 Those types of services legislative session, further secured the of what a differentiated curriculum include: acceleration options (early exit academic fast-track for gifted students means and what it requires from the from primary, grade skipping, content in primary school, by clarifying that a school. Differentiation reaches the and curriculum in one or more subjects child who is at least five but less than unique needs of gifted students by rec- from an advanced level); advanced six may be advanced through the pri- ognizing the different ways they learn, placement and honors courses; collabo- mary program if the student is the content of what they learn, and how rative teaching and consultation determined to have acquired the aca- they demonstrate what they have services; differentiated study experi- demic and social skills taught in learned. In concrete terms, differentia- ences for individuals and cluster groups kindergarten as determined by local tion can be achieved in the regular in the regular classroom; distance learn- school board policy. classroom by tiered assignments, learning; enrichment services during the The comprehensive tool for securing ing contracts, curriculum compacting, school day (not extracurricular); inde- services for gifted students is the “gifted and flexible pacing. Tiered assignments pendent study; mentorships; resource and talented student services plan,” (a create “assignments within the same les- services delivered in a pull-out class- GSP), which is the particular form of son plan which are structured at various room or other appropriate instructional the IEP for gifted students. The GSP is levels of complexity, depth and abstract- setting; seminars; travel study options; defined as “an educational plan that ness.”31 Learning contracts give or special schools or self-contained matches a gifted student’s needs to dif- students freedom to plan their time and classrooms for grades four through ferentiated service options and serves as yet provide guidelines for completing twelve only.22 While the regulation does the communication vehicle between the the work responsibly, and flexible pac- permit schools to have some discretion parents and the school.”26 Each school ing permits students to work at their in what services they offer, two types of district is required to establish a proce- own level.32 Parents should be asking services are nonetheless mandated. dure to obtain information from the for as many of these differentiation “Grouping for instructional purposes . . parents about the needs of their gifted options as possible within the GSP, and . shall be utilized.”23 Secondly, differen- students. 27 Further, the parents are enti- at a minimum asking teachers what pro- tiation requirement extends past the tled to annual notification of the visions they have in their lesson plans individual student to the requirement services created in the GSP and how to for providing the needed and required that the school district provide a cur- request a change in services .28 differentiation. riculum which is differentiated (or In order for parents to most effec- Curriculum compacting can provide modified or supplemented) to meet the tively advocate for their gifted children, a real aid to gifted students in the regu- needs of its gifted students.24 parents must become actively involved lar classroom and should be routinely in the creation and the implementation requested in GSPs. Curriculum com- Securing Gifted Services of their children’s GSP. Parents are enti- pacting essentially involves “(1) The advocacy starting point for par- tled to “respect and meaningful defining the goals and outcomes of a ents of gifted students often begins involvement in the decision-making particular unit or segment of instruction, before their young children have even process related to the student’s educa- (2) determining and documenting which entered the educational system, as many tion.”29 Each school district must parents will find that they are seeking “implement a procedure to obtain infor- Karen Quinn received her B.A. from Cor- early enrollment for these students who mation related to the interests, needs, nell University in 1986 and earned her are frequently both ready for and in and abilities of an identified student J.D. from Harvard Law School in 1990. need of a primary program. While Ken- from his parent or guardian for us in She has been in private practice in Ken- tucky law typically foresees children determining appropriate services.”30 tucky and Massachusetts, as well as serving as an attorney in a number of beginning school at age six, children Practically speaking, these rights to Kentucky government agencies, including who are age five by October 1 “may” be involvement and input often mean that the Governor’s Office of Domestic Vio- permitted to enroll in a public school.25 the best approach is for the parents to lence and Child Abuse, the Justice However, the statute does not specifi- begin by proposing a particular GSP, Cabinet, and the Office of the Attorney General. While in private practice with cally address those students who are ideally one which involves as many dif- the firm of Reed Wicker, PLLC, Ms. chronologically younger than age five ferent service delivery options as the Quinn focused on special educational law, by the October 1 deadline but nonethe- students needs. Pull out programs, advising exceptional students and parents less academically qualified for a advanced placement courses, or honors regarding educational issues. She has served as a member of the board of Fami- primary program. As the statute does courses generally function by definition lies for Effective Autism Treatment (FEAT) not prohibit their enrollment, the local to offer material at a higher level and at and as a member of the Kentucky Associ- school district could act within its dis- an advanced pace and therefore well ation for Gifted Education (KAGE). Ms. cretion to permit their enrollment, serve the needs of gifted students. The Quinn also has volunteered in the Shelby County School District for Project Read. although it could well be that the district challenge typically is in the regular She currently serves as the assistant gen- would find that it would not receive classroom. eral counsel for the Kentucky Medical funding for such young enrollees. Sen- When designing (or proposing) a Licensure Board. ate Bill 35, passed during the 2006 particular GSP, parents should be aware

November 2008 Bench & Bar 27 students have already mastered most or An alternative to seeking differentia- at issue is not sufficiently rigorous or all of a specified set of learning out- tion in a regular classroom is for the advanced, is for the student to take the comes and (3) providing replacement parent to seek a change in the curricu- advanced KVHS class outside of strategies for material already mastered lum to offer an advanced or honors school, enrolling as a home schooled through the use of instructional options course in that subject. However, the student. For example, some eighth that enable a more challenging and pro- school’s site based council is responsi- grade students find themselves frus- ductive use of the student’s time.”33 ble for “the determination of trated by their school’s failure to offer Distance learning is another desig- curriculum, including needs assessment an algebra course. Such a student could nated service delivery option, and the and curriculum development.”35 There- enroll at home on KVHS algebra during online courses offered by the Kentucky fore, to change the curriculum involves the eighth grade year. The school dis- Virtual High School (KVHS) naturally going before the local council and gen- trict is required to accept for credit the lend themselves to compacting as the erally involves a team effort among the work done in that course.36 When individual student works at his or her parents and the council. While this enrolling the next year in high school in own pace. When advanced classes are process involves more time and a good ninth grade, that student will have not offered at the school, parents should deal of networking, its advantage is that already placed out of algebra and be request the KVHS option, with the when courses are changed, they imme- able to enroll in more advanced math rationale being that the ability to diately benefit entire classrooms of courses. progress at one’s own speed will pre- gifted students, not just individuals. Finally, the focus of the regulation is vent the debilitating boredom that gifted The disadvantage of this approach is to provide gifted students with services students can experience in a regular that the individual student might find during school hours. “With the excep- classroom with a slower pace. Students that they are not having their needs met tion of an academic competition or who take KVHS courses as part of their during the time period in which the cur- optional extracurricular offering, serv- regular school day coursework are enti- riculum is being changed. One way for ices shall be provided during the regular tled to have their KVHS tuition paid for parents and students to avoid this prob- school hours.”37 However, parents need by the school district.34 lem, when the school district’s subject to be aware that schools are required to excuse students for up to ten school days to pursue an “educational enhance- ment opportunity.”38 Such an Landex Research Inc. educational opportunity is defined as “including, but not limited to participa- PROBATE RESEARCH tion in an educational foreign exchange program or an intensive instructional, experiential, or performance program in one (1) of the core curriculum subjects.”39 The principal is mandated to issue such an excused absence, and if the principal fails to do so, the student may appeal the decision to the superintendent and on to the local board, if necessary.40 Missing and Unknown Heirs Remedies for Parents and Students Located School districts are required to provide a grievance procedure for parents, with No Expense to the Estate guardians, and students to address concerns regarding “the appropriate and Domestic and International Service for: adequate provision of talent pool serv- Courts ices or services addressed in a formally Lawyers identified student’s gifted and talented Trust Officers student services plan.”41 The grievance Administrators/Executors procedure must address: (1) how and by whom the grievance procedure is initiated; (2) the process for determin- Two North La Salle Street, Chicago, Illinois 60602 Telephone: 312-726-6778 Fax: 312-726-6990 ing the need to evaluate or reevaluate Toll-free: 800-844-6778 the child for appropriate services; (3) www.landexresearch.com the criteria for determining if placement of the child needs revision; (4)

28 Bench & Bar November 2008 procedures for ensuring that appropri- Conclusion 31. See Duke Univ. Talent Identification ate services are provided to all The task for students, parents, and Program, http://www.tip.duke.edu/ identified students and (5) procedures our schools is to ensure that all children resources/parents_students/ for ensuring the participation of the reach their full potential. The regula- differentiation.html. parent or guardian, a regular education tions and the statutes here in Kentucky 32. Id. teacher of the student, a gifted educa- aim for gifted and talented students, like 33. Sally M. Reis & Joseph S. Ren- tion teacher or coordinator, other students, to perform at their maxi- zulli, Curriculum Compacting: A administrator, and a counselor in mum ability. In order to close the gap Systematic Procedure for Modify- addressing a grievance.42 between the law’s promise and its cur- ing the Curriculum for Above Like the creation and implementa- rent reality, parents and lawyers must Average Ability Students (The Nat’l tion of the GSP, parents should freely seek all those services to which the law Research Ctr. on the Gifted and avail themselves of all tools available entitles these students. Talented, Univ. of Conn. ed). to secure the needed services for their 34. KRS § 158.622(3)(c). gifted students, including the grievance ENDNOTES 35. KRS § 160.345(2)(i)(1). procedure. Parents should be prepared 1. Ky. Advisory Council for Gifted 36. KRS § 158.622(3)(a). for the grievance to involve as long as a and Talented Educ. & Focus Group 37. 704 KAR 3:285 § 6(6). few months and to be heard at all level on Gifted Educ. in Ky., White 38. KRS §159.035(2). of the school district. One school dis- Paper, Kentucky’s Future: Mining 39. Id. 40. KRS §159.035(2)(c). trict’s grievance procedure, for Untapped Treasure – Children and 41. 704 KAR 3:285 §10. example, provides for a tiered Youth of the Commonwealth Who 42. Id. approach, with the grievance filed with are Gifted and Talented (Nov. 17, 43. See Shelby County, Ky., School the Coordinator of the Gifted and Tal- 2005). The White Paper was District, Grievance Procedure ented Program, and the appeal to then revised in August, 2007, with the 08.132AP.1, at 11 (revised Nov. 16, be heard by the District Gifted Review authors calling for $25 million in 2006). Committee.43 That Committee hears annual state allocations for educating gifted and talented students. 44. Id. appeals only in September and Decem- 45. Id. ber.44 From the Committee, the appeal 2. Id. at 10 (Nov. 17, 2005). would then continue to the district 3. 20 U.S.C. § 7801(22) (2002). superintendent and then on to the 4. KRS §157.200(1)(n). school board.45 5. Kentucky’s Future, supra note 1, at Aside from the statutes, the regula- 2 (citing KDE Video “It’s In Your Need help with a tions, and the school policies, advocates Best Interests”). 6. 20 U.S.C. § 7253a (2002). for gifted students need to be aware of firearms collection? 7. 20 U.S.C. § 7253c (2002). all the resources available for these stu- For 32 years, we have bought, sold 8. Rose v. Council for Better Educ., dents. Various organizations work to and serviced all types of new, used 790 S.W.2d 186, 206 (Ky. 1989). and collectable firearms. We are advocate and to better the environment 9. KRS §157.195. licensed, bonded and insured. for gifted students to see that such stu- 10. KRS §157.200(1)(n). dents, like all students, reach their full We also offer: 11. KRS §157.230. APPRAISAL potential. In Kentucky, the Center for 12. KRS §157.280(1). Gifted Studies at Western Kentucky 13. KRS §157.196(2). AUTHENTICATION University provides enrichment pro- 14. 704 KAR 3:285. EXPERT TESTIMONY grams for students, as does the 15. 704 KAR 3:285 § 3(1)(a) & (b). CONSIGNMENT SALE Governor’s Scholars Program, while the 16. 704 KAR 3:285 § 3(9). ESTATE SETTLEMENT nonprofit Kentucky Association for 17. 704 KAR 3:285 § 3(9)(j). TORAGE AINTENANCE Gifted Education advocates for educa- 18. 704 KAR 3:285 § 3(11) & (12). S /M tional opportunities for gifted students. 19. 704 KAR 3:285 § 6(1). Outside of Kentucky, the Duke Talent 20. 704 KAR 3:285 § 1(11). Charles B. Layson • T. Rees Day Identification Program provides educa- 21. 704 KAR 3:285 § 6(5). 2263 Nicholasville Road tional enrichment and its website offers Lexington, KY 40503 22. Id. 859.276-1419 • 859.278.0838 fax good information. The Davidson Insti- 23. 704 KAR 3:285 § 6(4). www.am-firearms.com tute in Nevada offers both educational 24. 704 KAR 3:285 § 7(2). enrichment and a variety of consulting 25. KRS §158.030. services, many of them free. The 26. 704 KAR 3:285 § 1(18). National Association for Gifted Educa- 27. 704 KAR 3:285 § 3(6). tion works to advocate for and to meet 28. Id. the unique needs of gifted and talented 29. KRS §157.196(1). ANTIQUE & MODERN FIREARMS students. 30. 704 KAR 3:285 § 3(6). “Dealers in Quality Arms Since 1974”

November 2008 Bench & Bar 29

SHOP TALK

Peer To Peer File Sharing Applications – The P2P Experience

Michael Losavio ost of us now use computer net- eduCommons, for the exchange of edu- lawsuits around the country against, M works to access and exchange cational materials, and SETI@home, for among others, individuals found to have information, whether it be in the form the SETI research project that searches made available copyrighted music files of the mail, documents, legal research for extraterrestrial intelligence using the via their computers on peer-to-peer net- or just general information. spare computing power of people’s works. (In one recent case, a U.S. Most of these networks follow a home computers. Given such versatility, District Court judge set aside a jury structure called “client-server” whereby P2P researcher Nick Miles contends finding of liability where he found error the computer we are using (the client) “Peer to Peer rocks!” in instructing the jury that simply mak- sends and receives information from ing a copyrighted file available on the another computer (the server) that Some examples of P2P applications are: network was copyright infringement.) “serves up” information it controls to Acquisition, BearShare, Cabos, those that request it. An analogy is the FilesWire, FrostWire, Gnucleus, Utility and Security in the Office way in which our library system works, Grokster, gtk-gnutella, iMesh, Kiwi Peer-to-peer programs have been sug- whereby we go to a central library to Alpha, LimeWire, MLDonkey, gested as a valuable advertising request information (e.g., a book or Morpheus, MP3 Rocket, Panthera, supplement for law firms. Their effi- manuscript). This configuration has spe- Poisoned, Shareaza, Swapper, cient video sharing techniques would cial advantages for security; the server XoloX, ABC, AllPeers, Vuze allow law firms to offer video detailing computer may be configured to control BitComet, BitLord, BitTornado, the expertise and services of the firm access to server resources and files and BitTorrent, Burst!, Deluge, rather than simple text. Other than that, protect those resources from compro- FlashGet, G3 Torrent, Halite, the primary discussion of peer-to-peer mise to their confidentiality, integrity KTorrent, LimeWire, MLDonkey, networking seems confined to small, and value. Opera, Panthera, QTorrent, cost-effective networks in small law Peer-to-peer networks function some- rTorrent, Shareaza, TorrentFlux, firms. The use of such networks and what differently. In such networks, each Transmission, Tribler, µTorrent, small often sharing arrangements would computer can both access information Thunder also be cost-effective, but special atten- but can also serve up the information it And the list continues to grow! tion would have to be paid to client has to others. In this sense, every com- Source: Wikipedia confidentiality issues and the ability of puter in a peer-to-peer network is both a the peers to access each other’s infor- client and a server computer, an equal mation. “peer” with all the other machines on Peer-to-peer (P2P) file sharing has There is little discussion of peer-to- the network. In peer-to-peer networks been in the news mostly because of the peer usage across the Internet. I suspect that use the Gnutella protocol, the par- use of peer-to-peer file sharing programs that is due to confidentiality and secu- ticipating peer computers are called to establish P2P networks on the Internet rity considerations both in sending “servents,” a portmanteau1 combination and exchange music and videos without information outside of the office net- of the words “server” and “client.” the proper copyright permissions. work and in preventing any incoming Within the advent of the Internet, soft- In the 2005 U.S. Supreme Court Case compromises to the security of client ware writers have developed a variety of MGM v. Grokster the programmers files. In one unfortunate case, a teenager of protocols and file sharing/distribution of Grokster, a popular P2P file sharing set up his home computer with peer-to- programs that operate across the program, were themselves found guilty peer file sharing that was unsecured; Internet and establish ad hoc peer-to- of contributory copyright infringement and external users on the network were peer networks between individuals where they encouraged users of their able to take advantage of that open file willing to share information maintained program to copy and distribute music in sharing capability and turn his com- on their computers. These networks can violation of copyright. The Recording puter, unknown to him, into a be used for file sharing, audio and video Industry Association of America distributor for child pornography. communication and chat/messaging/ (RIAA) has sent cease and desist letters The security of peer-to-peer programs discussion groups. Some examples are and instituted copyright infringement is a justified concern, but not one that is

30 Bench & Bar November 2008 completely solved through a well doing it, it can’t be bad, right? for internal office operations. administered client/server network in This, of course, is yet another exam- The forensic focus here is on the local the office. That is due to the possible ple of the new habits of online computer and evidentiary issues associ- introduction of a peer-to-peer program supervision. We need to protect our ated with it. P2P applications also within the office network by staff that children from the dynamic dangers cov- present special problems in the area of don’t realize the potential dangers. ered in the wild of the Internet world. network forensics. P2P networks over Should a peer-to-peer program be the internet are highly dynamic, chang- installed on one person’s computer but In Court ing even as people turn their computers configured for open file sharing, other Where computer use may be an issue on and off. Some P2P applications use files on that client computer may be in litigation, peer-to-peer application special anonymizer techniques to unintentionally made available and software may pose some special chal- obscure the trail of people using the opened for examination and download lenges. Many of these are connected to application and exchanging files. Thus by others out on the Internet. Depending the security problems noted above. even if a compromise through a P2P on how that computer is itself config- For law enforcement and discovery application is discovered, it may be dif- ured, all network computers to which matters, Brett Shavers, a computer ficult to trace the compromise back to that computer has access may be open examiner in Washington state, notes that the source of the attack and mitigate the to external access over the Internet. It there may be special difficulties in damage done. would be a confidentiality nightmare. establishing knowledge and intent with As always, a grave new world. No, This danger is enhanced where the peer-to-peer file transfers where the no, a brave new world! Even as they are particular P2P application itself contains applications have been misconstrued or demonized by some, P2P applications built-in spyware or is infected with a spyware/malicious software has accom- are finding expanded use for distributive virus. In at least one instance, a computing, permitting the develop- P2P application that explicitly dis- ment of research and engineering claimed any spyware features had, communities with far greater ease in fact, its own internal spyware than the past. Some research appli- monitoring of user activity of the cations with P2P networks are at: P2P program. http://p2p.internet2.edu/apps_ As with the example of the list.html. teenager noted above, a machine in an office may be compromised and Let us know your thoughts on the turned into a computer serving up possibilities for P2P applications other files of which you may have and networks in legal practice at no knowledge. If these files are [email protected]. contraband materials, such as child From left to right: University of Louisville P2P pornography or copyrighted, unli- researchers Vincent Thacker, Dr. Olfa Nasraouri and All applications, tools and proto- censed audio or video files, your Jeff Marean of the Computer Science Department. cols discussed here are or may be office runs the risk of subpoenas the trademarks or registered trade- and search warrants in the possible panied the installation of the P2P marks of their respective holders. seizure of the computer(s) at issue. application (http://www.ctin.org/ “P2P client programs leave a wealth This, of course, is yet another exam- Presentations/P2P%20Presentation.pdf). of forensic artifacts on a computer. ple of unintentional, internal security This may also complicate the efforts of Every P2P client is different, and leaves compromise of your network. It is counsel to preserve electronically stored behind different artifacts, in different remediated both by regular training of information (ESI) possibly relevant to formats, stored in different places. staff on the dangers of independent litigation suit; external actors may con- Clients may have default configuration installation of programs and regular tinue to have access and impact upon rules that specify where to store files or scanning for the presence of such pro- ESI, including metadata, even as an which files to share, but there can also grams as part of network administration. enterprise itself is complying with a liti- be exceptions to the rules, or even gation whole. exceptions to the exceptions. Without At Home Digital forensic software can help understanding each client in detail, this This same potential security compro- with investigation and analysis, such as forensic goldmine can become a land- mise is present for your home computer, ATC’s P2P Marshal. Such software is mine.”—Dr. Frank Adelstein, ATC-NY especially if you have children. (See designed to help automate the process- Corporation “P2P networking - kids know! Do mom ing of identifying the presence of such and dad?”, http://internet-filter- P2P applications as well as locate infor- ENDNOTE review.toptenreviews.com/peer-to-peer- mation relating to their use and 1. “‘slithy’ means ‘lithe and slimy’... file-sharing.html.) This, of course, is a operation of a particular machine. This You see it’s like a portmanteau – double risk, as any work you do may be may be especially important where nec- there are two meanings packed up compromised and the children may be essary to quickly respond to potential into one word” Humpty-Dumpty, exposed or enticed into illegal or dan- breach of information security to a P2P from Lewis Carroll’s Through the gerous activity. But since everyone is application, whether it be for a client or Looking-Glass.

November 2008 Bench & Bar 31 EFFECTIVE LEGAL WRITING

Crafting Analogies and Distinctions That Work

Susan Hanley Duncan, Associate Professor of Law, University of Louisville School of Law

ecause our judicial system revolves case. Finally, the reader needs to under- E: Explanation — include precedent B upon stare decisis, one of the most stand why the comparison matters. case discussions that illustrate the rule important skills I teach my students is Effectively using analogies and dis- and that will later be used as case com- how to use precedent effectively. With tinctions requires the writer to first parisons to the client’s facts. These each first year class (and even in some know where to place all the information illustrations need to include the key rel- attorney work product), I notice com- needed by the reader. Introducing infor- evant facts, as well as the holding and mon errors with analogies and mation too early or too late will confuse the reasoning of the court. distinctions drawn from precedent the reader and dilute the overall impact A: Application — state the thesis and cases. Learning to spot and correct these of the analogy or distinction. To help apply the legal rules to the client’s facts errors in your writing will make your students avoid this problem, I teach a before transitioning to analogies and briefs and memos easier to follow and paradigm known as CREAC. CREAC distinctions with the precedent cases more persuasive. provides an organizational framework you already introduced in “E.” These In order to be useful, analogies and for each disputed element that most case comparisons will support the distinctions must be explicit and obvi- legal readers expect and find useful. writer’s thesis. ous, which requires certain information. C: Conclusion The reader needs to know the key facts, CREAC stands for: the holding, and the reasoning from the C: Conclusion — include a one sen- Problems with analogies and distinc- comparison case. In addition, the writer tence thesis that summarizes the writer’s tions result when students fail to stick to must make the connection for the reader conclusion. this organizational framework for their between the key facts in the comparison R: Rule — include the legal princi- analysis. Let me provide some case and the key facts in the client’s ples that control the issue. examples.

1. Utilizing analogies and distinctions without giving the reader the necessary background of the precedent case, making it difficult for the reader to understand their context This error results from the writer not describing the case in adequate detail in the “E” part of CREAC. The writer may only give the holding or so few facts that a reader cannot follow the comparison. Example: Unlike Cook, here Ms. Murray’s trailer does not share any door with the main residence, even when parked in the driveway.1 A case cannot be compared to facts. Compare like things – facts to facts. What facts in the Cook case are similar or dissimilar to the client’s facts? Most likely few facts were given in the “E” section, and, thus, there are none to compare here.

32 Bench & Bar November 2008 A better attempt at distinguishing employer had a legitimate interest in the was able to be close to Rush and could might look something like this: employee’s relationship with its cus- have touched him, unlike the fenced-in Unlike the attached garage and tomers because it was likely that the dog in Partipilo. No gate or invisible enclosed patio in Cook, which qualified customers would follow the employee fence restricted Jive’s actions. as integral parts of the main house to a competitor.2 Version A begins to compare the because they were akin to additional case before the reader even knows the rooms, here Ms. Murray’s trailer does 3. Including the case comparison thesis and support for the client’s case. not share any door with the main resi- before stating the thesis and In addition, the comparison is very dence, even when parked in the applying the law to your facts vague since it points to no specific driveway. facts from the cases. Version B states Compare the thesis and facts that support the 2. Failing to explain the relevance of thesis in the very first sentence. This the analogy or distinction Version A: gives the reader necessary context to This results when the writer just The Bailey case is similar in that the appreciate the analogies and distinc- compares the facts to each other but court found that the defendant could not tions that follow. does not explain why the comparison collect under the dog statute because Reworking your analysis to avoid the matters. there was no action on the part of the errors described in this article will Example: In addition, Andy has been dog which caused the fall and subse- greatly improve your analogies and dis- meeting with his customers for about quent injuries. Bailey. In the present tinctions resulting in a stronger once a month for six years. This is as case no overt act was committed by the argument for your client. long and regular as the employee in dog to cause an injury to Mr. Rush. Daniels who met his customers a few ENDNOTES times a month for several years and the Version B: 1. Sarah E. Ricks, You Are in the employee in Wilson who met his cus- Jive’s actions of running next to Business of Selling Analogies & tomers monthly for five years. Rush and barking will likely be classi- Distinctions, Perspectives, Vol. 11, This is a good comparison but why fied as overt, dog-like actions satisfying No. 3 (Spring 2003). do these facts matter? The writer needs the attack or injury requirement. Jive 2. Daniel Barnett, Triage in the to complete the thought for the reader to was running next to Rush, not lying Trenches of the Legal Writing show the importance of the comparison. motionless on a step like the dog in Course: The Theory and One more sentence would help – Bailey. He definitely was more active Methodology of Analytical This enduring and frequent relation- than a sleeping dog. He also was next to Critique, 38 U. Toledo L. Rev. ship with the clients shows the Rush and not behind a locked gate. Jive 651(2007).

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November 2008 Bench & Bar 33 16 Time Management for Lawyers Cincinnati Bar Association Kentucky Bar Association CLEvents CLE Office • (502) 564-3795 16 Intellectual Property Brown Bag Following is a list of TENTATIVE upcoming CLE Louisville Bar Association AOC Juvenile Services programs. REMEMBER circumstances may arise Lyn Lee Guarnieri • (502) 573-2350 which result in program changes or cancellations. 17 Professionalism You must contact the listed program sponsor if Louisville Bar Association Cincinnati Bar Association you have questions regarding specific CLE programs Lisa Maddox • (502) 583-5314 and/or registration. ETHICS credits are included in many of these programs. Some programs may not 17 Real Estate Brown Bag KYLAP yet be accredited for CLE credits - please check with Louisville Bar Association the program sponsor or the KBA CLE office for details. Anna Columbia • (502) 564-3795 18 Bankruptcy Update DECEMBER Kentucky Justice Association Cincinnati Bar Association (formerly KATA) 3 Substance Abuse Instruction Ellen Sykes • (502) 339-8890 Cincinnati Bar Association 18 Young Lawyer’s Brown Bag Louisville Bar Association Chase College of Law 4 Health Care Law Bonnie Osborne • [email protected] Cincinnati Bar Association 19 Legal Writing 201 Cincinnati Bar Association Kentucky Department of Public 4-5 Kentucky Law Update – Lexington 29 Video Replay: Bankruptcy Basics; Real Advocacy Kentucky Bar Association Estate Foreclosures; Securities Law Jeff Sherr or Lisa Blevins Cincinnati Bar Association (502) 564-8006 ext. 236 5-6 Southwestern Ohio Tax Institute Cincinnati Bar Association 29 Professionalism, Ethics & AOC Mediation & 30 Substance Abuse Instruction Family Court Services 6 Professionalism, Ethics and Cincinnati Bar Association Malissa Carman-Goode Substance Abuse Instruction (502) 573-2350 ext. 2165 Cincinnati Bar Association 30 DUI Law; Top Tips for Taking a Deposition; Obstruction of Justice UK Office of CLE 9 Great Adverse Depositions: Statutes Melinda Rawlings • (859) 257-2921 Principles & Principal Techniques Cincinnati Bar Association Cincinnati Bar Association Mediation Center of the Institute 31 Professionalism, Ethics & for Violence Prevention 9 Great Adverse Depositions: Attacking Substance Abuse Instruction Louis Siegel • (800) 676-8615 Adverse Deponent’s “I don’t know,” Cincinnati Bar Association “I don’t remember,” and “I do remember” Northern Kentucky Bar Association Cincinnati Bar Association JANUARY Julie L. Jones • (859) 781-4116

9 ADR/Mediation Brown Bag 9 Legislative Law Update Children’s Law Center Louisville Bar Association Cincinnati Bar Association Joshua Crabtree • (859) 431-3313

10 Famous Political Trials: 21 Attorneys Serving on Charitable Boards Fayette County Bar Association Sacco & Vanzetti Cincinnati Bar Association Mary Carr • (859) 225-9897 Cincinnati Bar Association 23 Basics of Domestic Relations Practice CompEd, Inc. Cincinnati Bar Association 10 Ethics Allison Jennings • (502) 238-3378 Cincinnati Bar Association 29- New Lawyers Training Cincinnati Bar Association 30 Cincinnati Bar Association 11 Real Property Law Institute Dimity Orlet • (513) 381-8213 Cincinnati Bar Association Access to Justice Foundation Nan Frazer Hanley • (859) 255-9913 12 Workers’ Compensation 2008 KENTUCKY Cincinnati Bar Association LAW UPDATE Administrative Office of the Courts Dates and Locations Malissa Carman-Goode 12 Criminal Law Brown Bag December 4-5 (TH/F) Lexington (502) 573-2350, Ext. 2165 Louisville Bar Association Lexington Convention Center

34 Bench & Bar November 2008

KENTUCKY BAR NEWS

company’s domestic and international bankruptcy law by the American Board Salmon P. Chase mergers and acquisitions, and affords of Certification, she also devotes a College of Law her the opportunity to significant amount of time to the legal work with business profession and community, including leaders and legal service as current chair of the By David H. MacKnight counsel throughout Cincinnati Bar Association’s Young Associate Dean for Advancement the world. Most Lawyer Section, board member of recently, she led a Cincinnati Bar Association and Chase Alumni Association Presents team of in-house, Cincinnati Bar Foundation, past Alumni Awards domestic and interna- president of the Chase Alumni he Northern Kentucky University Alyson Schlinger tional legal counsel in Association, chapter treasurer of the T Chase College of Law Alumni Barclay the completion of the Federal Bar Association, member Association honored four alumni during acquisition of a company with locations of the St. Elizabeth Medical Center its annual Chase Alumni Luncheon on in the U.S. and five foreign countries. Foundation and several other charitable Friday, October 10, at the Bank of Among her past honors, she was named and non-profit organizations. Kentucky Center on NKU’s campus. as one of St. Louis’ top 25 most influen- More than 325 Chase alumni and Richard D. Lawrence, class of 1971, tial business women by the St. Louis friends attended the luncheon. The was the recipient of the Lifetime Business Journal. alumni association also hosted a CLE Achievement Award. J. David Bender, class of 1979, was program before and after the luncheon He is president of the the recipient of the titled “A View From Across the River: Lawrence Firm and Exceptional Service Nuances Between Kentucky and Ohio has been trying cases Award. He is a sole Practice.” Featured speakers were for over thirty-five practitioner with Stephen J. Schuh ’78, Kelly Farrish ’78, years in Southern offices in Fort Burr J. Travis ’78, Jay R. Vaughn ’02, J. Ohio and Northern Thomas, Kentucky, Robert Linneman ’01, Mary P. Burns Kentucky. His early and his practice ’02, Tracey P. Puthoff ’95, and Henry E. Richard D. years of practice includes civil litiga- Menninger ’77. Lawrence included successful J. David Bender tion, corporate, The luncheon sponsors were The defense of persons accused of serious domestic, estate, probate and criminal Lawrence Firm and Taft, Stettinius & crimes; and since the 1980’s, he has law. Over many years, he has devoted Hollister. The table sponsors were: concentrated on representing those who countless hours in service to Chase, Adams, Stepner, Woltermann & Dusing; have been catastrophically injured. He NKU, the Bar and the community, Arnzen, Wentz, Molloy, Laber & Storm; has served as president and board including service as president and/or Alyson S. Barclay ’85; J. David Bender member for numerous trial practice board member for the Northern ’79; Busald, Funk & Zevely; NKU associations. He has received many Kentucky Bar Association, Children’s Chase College of Law; Cors & Bassett; awards for his noteworthy accomplish- Law Center, Chase Alumni Association, Paige Leigh Ellerman ’99; The Farrish ments as a trial attorney, including the NKU Alumni Association, NKU Law Firm; Freund, Freeze & Arnold; KJA’s Peter Perlman Outstanding Trial Foundation, Norse Athletic Club, Villa Frost Brown Todd; Modlin & Jones; Lawyer of the Year, AAJ’s Wiedemann Madonna Academy and many other Ralph P. Ginocchio ’77; Greenebaum, & Wysocki Medal Award twice for out- organizations. He was recently chosen Doll & McDonald; Keating, Muething standing contribution to civil justice to be included in a soon to be published & Klekamp; Richard D. Lawrence ’71; and AAJ’s Dan Cullen Award for his book, Lessons in Entrepreneurship, The Lawrence Firm; Lerner, Sampson efforts in representing children with by the NKU Entrepreneurship Institute. & Rothfuss; Edward J. McTigue ’78; brain injuries. He has published in Paige Leigh NKU Alumni Programs; NKU legal and medical texts, and has been Ellerman, class of Foundation; NKU University privileged to speak in 20 states and 1999, was the recipi- Advancement; Norse Athletic Club; three foreign countries. ent of the Outstand- O’Hara, Ruberg, Taylor, Sloan & Alyson Schlinger Barclay, class of ing Recent Graduate Sergent; Parry, Deering, Futscher & 1985, was the recipient of the Award. She is an Sparks; Reminger Co.; the Sanders Law Professional Achievement Award. She is attorney in the bank- Firm; Santen & Hughes; Schachter & vice president, secretary and general ruptcy, business Hendy; Schuh & Goldberg; Sutton counsel of ESCO Technologies Inc., Paige Leigh restructuring and Rankin Law; Taft, Stettinius & which is based in St. Louis with opera- Ellerman creditor rights Hollister; Turner Construction tions around the world. Her practice practice group at Taft, Stettinius & Company; Wood & Lamping; and includes legal responsibility for the Hollister. Board-certified in business Ziegler & Schneider.

November 2008 Bench & Bar 35 KENTUCKY BAR NEWS

visible to practitioners and students. District of Kentucky federal courts, On University of Here are some of their recent accom- the Bench. Bill also spoke at the January Kentucky plishments. 2008 workshop of the National Center Two faculty members, Mary Davis for State Courts on judicial campaign College of Law and Richard Ausness, will participate in oversight. Rick Underwood has contin- By Louise E. Graham, Interim Dean a symposium, The Products Liability ued his work in ethics, adding another Restatement: Was it a Success? at the CLE presentation to the two he has done UK Law Pursues Education Outside of Brooklyn School of Law this month. already this year for our own UK/CLE the Classroom This two-day symposium unites practi- and the Kentucky Justice Association’s he fall semester is now well under- tioners and national experts to examine Trial Lawyer’s Ethics Seminar, when he T way. The College of Law’s entering products liability law. Jonathan Cardi presented at the Eastern Mineral Law class is immersed in the details of mens will present a paper at the Texas/Wake Foundation’s October seminar on rea, personal jurisdiction and the finer Forest Symposium on the Restatement Environmental Litigation. Paul points of negligence law. This phenome- Third of Torts in February. Jonathan is Salamanca was the moderator for a non also means that the faculty is also president-elect of the Southeastern forum held on October 22 for Kentucky dedicating many hours to teaching, not Association of Law Schools. Andrea Supreme Court candidates from just in the classroom. Walking down the Dennis has authored an innovative study Louisville which was sponsored by the halls of the law school after classes end, of judicial use of rap music as substan- Federalist Society. Nicole Huberfeld it is not unusual to see a knot of stu- tive evidence in criminal cases. The spoke at the University of Cincinnati dents grouped around a faculty member, article, Poetic (In)Justice? Rap Music School of Law on Spending and who continues to work with students in Lyrics as Art, Life and Criminal Compulsory Maternity. Her talk was part the confines of the hall. Evidence has received national attention of an exchange that will also bring Teaching is a valued effort at the and was cited in the Evidence LawBlog Cincinnati scholars to our school. College of Law and one of this institu- as highly recommended reading. All of us are excited about a new fac- tion’s strong points, but our faculty also Bill Fortune, UK College of Law ‘64, ulty project. We have begun a new does significant work sometimes less has completed his history of the Eastern working group, the UK Law/Energy/

36 Bench & Bar November 2008 KENTUCKY BAR NEWS

Environment Roundtable, to focus dis- climatology, archeology, anthropology, challenges that they may encounter dur- cussions on Kentucky’s energy policy. and paleontology, in a highly ambitious ing a lifetime in this profession. Mike Healy spoke at the Governor’s effort to apply truly timeless lessons to This essay’s title, as it turns out, is a Conference on Energy and Environment contemporary concerns. deliberate double entendre. Most legal in October. We are working with In our domain, I similarly believe educators (and, to be frank, their stu- Secretary Len Peters and the Energy and that the scale on which law should be dents as well) think that “Big Law” Environment Cabinet, as well as the taught, learned, and lived is the entirety refers to a fraction of the market for University of Kentucky’s new of human experience. The proper scope legal services. Many of us in the profes- Environmental Initiative and individual of legal education is the range of all sorial ranks worked in larger law firms, legislators, such as Tanya Pullin, UK things that law governs, informed by all and many law schools have traditionally College of Law ‘86, to provide research other learned disciplines that influence devoted the lion’s share of their career assistance with legal issues related to legal decision makers. counseling efforts on placing as many alternative energy choices for Kentucky. In The Morality of Law, legal graduates as possible in large firms. That As you can see, our faculty remains philosopher Lon Fuller defined law as approach overlooks some stark realities. committed to both teaching and “the enterprise of subjecting human Law school graduates work in a dazzling research. They are an active force for conduct to the governance of rules.” An range of environments and serve diverse engagement in the Commonwealth and even more complete definition extends clients. As much as we appreciate larger the nation. law to all questions of conflict resolu- firms and graduates of ours who work tion and conflict avoidance, of there, we must also appreciate our grad- University of organizations and cooperative solutions uates who work alone, in small firms, in Louisville that no individual can solve alone. government, and in nonprofit settings. Private and public, formal and informal, No individual lawyer, over the course of School of Law entrepreneurial and altruistic – law her career, can reliably predict where By Jim Chen schools should strive to prepare their she’ll work, whom she’ll serve, or the Dean and Professor of Law graduates for all circumstances and tools she will need to bring to bear.

Big Law ow ambitious should a law school Legally Insane by Jim Herrick H be? Should it choose a single spe- cialty or serve the profession more generally? What should be the scale on “Now, every arbitrator handles these things which law is taught, learned, and lived? a little bit differently. With me, it’s always How deep should we reach? How high should we vie? a chili cook-off. Ready?” In answering the strategic questions of law school management, I’ve taken Oliver Wendell Holmes’s advice. A page of history really is worth a volume of logic. I’ve drawn insights from a contemporary historian so innovative that he has reinvented the focus of his discipline. In his magnum opus, Maps of Time: An Introduction to Big History, David Christian argues that the appropriate scale for the study of history is time in its entirety, from the Big Bang to humanity’s end. In stark contrast with historians whose careers focus exclusively on one group, in one location, during a sliver of time, Christian has exhorted historians as a group to seek common themes and patterns across places, cultures, and time periods. The resulting enterprise, “Big History,” draws heavily from other disciplines, such as biology, astronomy, geology,

November 2008 Bench & Bar 37 KENTUCKY BAR NEWS

I hasten to add that to the extent (albeit important) things that we can Futurist Manifesto of 1909 proclaimed larger law firms try to hire exclusively teach in a formal classroom setting. It is nearly a century ago, contemporary from the top of our classes, law school not too much for students to seek, nor is society confronts the challenge of administrators should remind them- it too much for schools to deliver, train- “omnipresent speed” on “the last selves that the graduate at the bottom of ing in skills not tested on any bar exam promontories of the centuries.” Oliver the class pays as much tuition as a grad- but crucial to ultimate success: law firm Wendell Holmes undoubtedly would uate summa cum laude, and that early management, mastery of technology, endorse Big Law’s response to this chal- evaluations of talent often bear no rela- powerful writing, persuasive oral advo- lenge. In showing the next generation tion to ultimate career success. The cacy, even fluency in the foreign the true path of the law, let us embrace traditional definition of “Big Law,” as it languages spoken by a burgeoning part an echo of the infinite, a glimpse of its turns out, is far too cramped. of the American population. Faculty unfathomable process, a hint of the uni- Retraining our law schools’ focus on research, more than ever, must become versal law. “Big Law” – properly redefined as law more rigorous and relevant. Law profes- marshaling the complete arsenal of intel- sors today have become better trained in lectual tools and skills in service of all empirical research and tools already I In Memoriam needs and hopes felt by lawyers and their familiar to our fellow social scientists. clients – affects all aspects of legal edu- We owe our students and the profession Jim Marshal Alexander Lexington cation. We must take our teaching at large an even more considerable push M. Jeannine Clements Louisville beyond the Langdellian classroom and into research that solves real problems the Socratic Method. Today’s students and offers workable solutions. George William Robbins The Village, FL rightfully demand experience-based Natural historians, who are perhaps Bill Clemons Hardshell learning. Clinics, moot courts, intern- the biggest historians in Big History, tell Marvin Cornett Stanford ships and externships, public service us that human civilization has triggered projects, law journals, and interest-based the sixth great extinction spasm of the James Wendell Roberts Venice, FL student organizations all stretch the law Phanerozoic Eon, a stretch of time Othal Smith, Jr. Thompson Station, TN school experience beyond those few exceeding half a billion years. As the

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38 Bench & Bar November 2008 KENTUCKY BAR NEWS GRANTS AWARDED BY IOLTA TOTAL $1,237,500 he Kentucky Supreme Court has LOCAL BAR ASSOCIATION IOLTA PUBLIC SERVICE T approved the 2008-2009 grant rec- PRO BONO PROGRAMS FELLOWSHIPS ommendations made by the IOLTA Board of Trustees for law-related pro- N Bowling Green Lawyers Care N Salmon P. Chase College of Law, grams in the sum of $1,237,500 with Project ($27,500) Northern Kentucky University $1,000,000 of this sum going to the ($15,000) Commonwealth’s four regional Legal N Boyd/Greenup/Lewis County Bar Services Programs. Earlier this year, Associations’ Attorney Access Project Legal Services had received a N UK Student Public Interest Law ($27,500) $1,000,000 decrease in its appropriation Foundation ($15,000) under the budget passed by the Kentucky Legislature. The following N Fayette County Bar Association N grantees are receiving IOLTA grants Pro Bono Program, Inc. (LawCare) U of L Louis D. Brandeis School during fiscal year 2008-2009: ($27,500) of Law Research Foundation ($15,000)

LEGAL SERVICES PROGRAMS N Louisville Pro Bono Consortium Please call the Kentucky IOLTA ($27,500) Fund at 800-874-6582 (KY) for more N Appalachian Research & Defense information. Fund of KY, Inc. ($356,600) N Northern Kentucky Volunteer Lawyers, Inc. ($27,500) N Kentucky Legal Aid ($214,200) Kentucky Bar Foundation N N Legal Aid of the Bluegrass Owensboro Lawyers Care Project 514 West Main Street ($222,600) ($27,500) Frankfort, Kentucky 40601 (502) 564-3795 N Legal Aid Society, Inc., Louisville N Paducah Lawyers Care Project (800) 874-6582 (KY) ($206,600) ($27,500)

IN MEMORIAM

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November 2008 Bench & Bar 39 WHO, WHAT, WHEN & WHERE ON THE MOVE James M. Salmon P. Chase McDonough has College of Law in The Covington law joined the firm. 2005. Zanetti gradu- firm of O’Hara, McDonough earned ated from Indiana Ruberg, Taylor, his law degree from University in 2001 Sloan & Sergent is Emory University and with his bachelor’s pleased to announce his M.B.A. from degree and from that Jennifer L. Georgia State Vanderbilt University Scholl has become James M. University. He also Jason A. Kinser Law School in 2005. associated with the McDonough received a B.S. from Brady received his Jennifer L. Scholl firm. Scholl is a grad- Indiana University. bachelor’s degree uate of Chase College McDonough will continue to practice from the University of Law and will primarily focus her in the areas of creditors’ rights, bank- of Kentucky in 1996, practice on the area of domestic rela- ruptcy, real estate, and construction obtained a degree in tions. She is a certified family law law. secondary education mediator and guardian ad litem. Scholl from Georgetown is admitted to practice in Kentucky and The Louisville law College in 2000, and Ohio. firm of Middleton Matthew J. Zanetti graduated from Reutlinger is pleased Salmon P. Chase The law firm of to announce that Lee College of Law in Dressman Benzinger Garlove has joined 2006. Coolen gradu- LaVelle PSC (DBL) the firm. Garlove, a ated from University is pleased to announce member of the firm’s of Kentucky with his that James K. Rice business commercial bachelor’s degree in has joined the firm as Lee Garlove tax practice group, 2002 and from Of Counsel. Rice, for- focuses his practice on University of Pierre J. Coolen merly a partner in real estate and commercial litigation. He Kentucky College of James K. Rice Rice & Diedrichs, received his M.Ed. from the University Law in 2006. Urbon LLP, will continue his of Louisville and graduated, magna cum received his bache- legal practice of taxation, business laude, from Washington and Lee lor’s degree from transactions, estate planning, estate/trust University with a B.A. Garlove earned Michigan State administration and real estate matters at his J.D. from Washington and Lee University in 1999 DBL’s Crestview Hills offices. He University School of Law. and graduated from received his B.B.A. in 1964 and earned the Detroit College of his J.D. in 1967, both from the Frost Brown Todd LLC is pleased Law in 2002. The University of Cincinnati. Rice is admit- to announce the appointment of Brian Daniel J. Urbon firm is also pleased to ted to practice in Ohio, Kentucky, and S. Duba as a senior associate of the announce the establishment and open- West Virginia. firm. Duba has been with the firm since ing of a branch office in Huntington, September 2005. He practices in the West Virginia at 1001 Sixth Avenue, The Paducah law firm of Whitlow, area of general corporate law in the Suite 105. Jane Ann Pancake, a part- Roberts, Houston & Straub, PLLC is firm’s Lexington office. Duba has ner in the firm, will be in-house and pleased to announce that Jonathan R. assisted clients in investigating, docu- managing that location. The phone Oliver has joined the firm as an associ- menting and executing private equity number is (304) 972-1333. ate. Oliver, a native of Lyon County, offerings, mergers, equity interest sales, graduated from Murray State University asset sales, debt financings, and other with a B.A. in 1997 and obtained his J.D. business transactions including leases in 2002 from Southern Illinois University and other purchase, sales, and distribu- School of Law. He has worked in private torship agreements. Have an item for civil practice in Southern and South- WHO, WHAT, WHEN & WHERE? eastern Illinois since obtaining his Ferreri & Fogle, PLLC is proud to Illinois license in 2002. Oliver is admit- announce the additions of Jason A. ted to both the Illinois and Kentucky Kinser and Matthew J. Zanetti to its See page 44 for details on Bars and the bars of the Southern and Louisville office and John T. Brady, how to submit your Central Districts of Illinois. Pierre J. Coolen and Daniel J. Urbon announcement. to its Lexington office. Kinser received The Louisville law firm of Weber & his bachelor’s degree from Centre Rose PSC is pleased to announce that College in 2000 and graduated from 40 Bench & Bar November 2008 WHO, WHAT, WHEN & WHERE The United States Attorney’s Office Of Counsel position Louisville. After law school, he spent for the Eastern District of Kentucky with the firm. Grasch four years litigating medical malprac- recently hired Christy Love, Jason & Gudalis, PSC is tice and torts and insurance cases most Parman, Lindsay Hughes, Alamdar located in Lexington at recently with the Louisville firm of Hamdani and Wade Napier to serve as 302 West High Street Whonsetler & Johnson, PLLC. Assistant United States Attorneys. Love, and may be reached by Piekarski has joined the torts and insur- a graduate of Capital University Law telephone at (859) 253- ance and product liability practice School in Columbus, Ohio, and Parman, 9506. Grasch received groups at Woodward. a graduate of the University of Albert F. a B.A. from Kentucky College of Law, will be work- Grasch, Jr. Transylvania David L. Hill is pleased to announce ing in the London Office. Hughes, a University and gradu- the opening of the Law Office of graduate of the University of Kentucky ated, cum laude, from David L. Hill, PLLC, in Lexington at College of Law, and Hamdani, a gradu- the University of 167 West Main Street, Suite 1204. The ate of the University of Houston Law Kentucky College of firm concentrates its practice on corpo- School, will be working in the Fort Law in 1985. After rate, commercial, and collection law, as Mitchell Office. Napier, a graduate of practicing with Stoll, well as small business planning. Northern Kentucky University’s Chase Keenon & Park for College of Law, is working in the several years, he was a The Lexington law firm of Golden & Lexington Office. Brian M. Gudalis founding member of Walters PLLC is pleased to announce Grasch & Cowen, PSC. that Timothy C. Feld has become a The Louisville law Grasch represents national and local busi- partner with the firm. Feld focuses his firm of Thompson nesses in litigation in addition to handling practice in the areas of personal injury Miller & Simpson is medical malpractice, discrimination, and defense, product liability litigation, bad pleased to announce other personal injury claims. Gudalis will faith, and civil rights litigation. that Cristine M. continue to focus his practice in business Boschee and Emily A. litigation and corporate transactions. He J. Vincent Riggs is pleased to McBeath have joined is a graduate of Asbury College and announce the opening of his law office the firm as associates. Regent University College of Law. in Lexington located at 183 North Cristine M. Boschee received her Gudalis was previously associated with Upper Street. Riggs will concentrate his Boschee B.A. from the Ward, Hocker & Thornton, PLLC. practice in the areas of family law, wills University of and trusts, and limited immigration. The Nebraska and earned The Paducah law telephone number at his office is (859) her J.D. in 2006 from firm of Denton & 425-1168. the University of Keuler LLP is Montana School of pleased to announce The Lexington law firm of Van Wert Law. McBeath that Samuel J. Brown Rule, formerly the Law Office received her B.A. Wright has become of M. Suzanne Van Wert, PLLC, is from Vanderbilt associated with the pleased to announce the opening of its Emily A. McBeath University and earned firm. He is a graduate new office located in Lexington at 230 her J.D. in 2008 from Samuel J. Wright of Southern Illinois North Limestone Street, Suite 100. the Ohio State University Moritz University School of Managing partner, M. Suzanne Van College of Law. Boschee and McBeath Law and has been admitted to practice Wert, welcomes partners Rachelle will be practicing in the area of health- in Kentucky, Illinois, and Missouri. Higgins Brown and Kelley M. Rule to care liability. the firm. The members, all alumni of The law firm of Woodward, Hobson Salmon P. Chase College of Law, focus As of September 15, 2008, Virginia & Fulton, LLP has announced that their practice in the area of business and L. Lawson and Assoc., PSC became Christopher Michael Piekarski has corporate law. Van Wert’s practice areas Lawson & Rager, PSC, Attorneys at joined the firm in the include business and corporate transac- Law, located in Lexington at 3306 Louisville office. A tions, information technology, Clays Mill Road, Suite 107. The firm’s native of Bolingbrook, intellectual property, and equine transac- telephone number is (859) 233-1882 Illinois, Piekarski tions. She is also a mediator in the areas and the facsimile is (859) 296-6446. received his under- of business, information technology, and graduate degree from equine law. Brown and Rule focus their Albert F. Grasch, Jr. and Brian M. Western Illinois practice on business and civil litigation Gudalis are pleased to announce the University and earned as well as domestic relations and crimi- opening of Grasch & Gudalis, PSC. Christopher M. his law degree from nal law. Members of the firm may be Theodore E. Cowen will continue in an Piekarski the University of contacted at (859) 335-0230. November 2008 Bench & Bar 41 WHO, WHAT, WHEN & WHERE Stites & Harbison 2005 graduate of Case Western Reserve Kentucky International welcomes attorney University School of Law, cum laude. Airport, has elected H. Natalie Reed to the Lawson Walker II as Lexington office. Reed its new chairman. is counsel with the IN THE NEWS Walker was previously firm and is a member Frost Brown Todd vice chairman and has of the real estate and LLC is pleased to served on the Airport banking service group. announce that Wm.T. Board since 2000. He Natalie Reed She has experience (Bill) Robinson III H. Lawson practices with the firm representing buyers, was elected to a 3-year Walker II of Frost Brown Todd sellers, borrowers, lenders, developers, term on the American LLC. landlords and tenants in complex real Bar Association estate and finance transactions. She also (ABA) Retirement Jerry J. Cox, of Mount Vernon, won serves clients in the area of mineral law Wm.T. (Bill) Funds Board of the post of secretary of the National matters with a focus on coal transactions. Robinson III Directors at the ABA’s Association of Criminal Defense Reed received her J.D. from Georgetown annual meeting in Lawyers (NACDL) in a contested elec- University Law Center in 1997 and New York. In addition, Robinson has tion held in August 2008. Cox took his earned her B.A. from the University of been elected to serve a 3-year term on officer’s oath at the Association’s 50th Kentucky in 1991. She is admitted to the American Bar Foundation Board of annual meeting in Milwaukee. He served practice in Kentucky, Virginia, Maryland Directors. ABA President H. Thomas on the NACDL Board of Directors from and the District of Columbia. Wells has also appointed Robinson to 2000 - 2006 and was parliamentarian serve as chair of the ABA Standing from 2007-08. Cox is also a past presi- Stoll Keenon Committee on Governmental Affairs for dent of the Kentucky Association of Ogden PLLC is the coming year. Robinson serves as Criminal Defense Lawyers, a NACDL pleased to announce member-in-charge of the Northern state affiliate organization. that James A. Kentucky office of Frost Brown Todd. Philpott, Jr. is now The law firm of Of Counsel with the Ferreri & Fogle, PLLC is proud to Woodward, Hobson & firm’s equine law announce the induction of James G. Fulton, LLP has practice. Philpott, who Fogle as a Fellow by the American Bar announced that Angela James A. practices in the Association’s College of Workers’ Logan Edwards, a Philpott, Jr. Lexington office, has Compensation Lawyers. partner in the served the Louisville office, has Thoroughbred industry in myriad capac- Frances Catron- been appointed by ities. Prior to joining the firm, he was a Malone has been Angela Logan Governor Steven L. solo practitioner with an emphasis on appointed chair of the Edwards Beshear as a member the syndication of Thoroughbreds. Most Kentucky Bar of the Executive Branch Ethics noteworthy, Philpott is one of the three Association’s Commission, representing the Auditor of members of the initial Breeders’ Cup Communications and Public Accounts. Edwards will serve a Board of Directors. A native of Publications term ending July 14, 2012. The Executive Lexington, Virginia, Philpott is a gradu- Committee and editor Branch Ethics Commission is an inde- ate of Washington and Lee University Frances Catron- of the Bench & Bar. pendent agency of the Commonwealth School of Law. Malone Catron-Malone is an which has been given the responsibility Assistant United States Attorney for the of administering and enforcing the provi- Fultz Maddox Hovious & Dickens United States Attorney’s Office for the sions of the Code of Ethics. PLC is pleased to announce that Laura Eastern District of Kentucky. In 2001, C. Leone has joined the firm as an she was appointed Interim United States Timothy H. Pogue, a 1976 graduate associate. Before joining the firm, Attorney for the Eastern District of of the University of Kentucky College Leone practiced at Frost Brown Todd in Kentucky. Prior to her government serv- of Law, has closed his private practice Louisville. She will continue her prac- ice, she was in the private practice of law of law in Marion, South Carolina. tice in the areas of health care, in her hometown of Corbin. She gradu- Pogue was recently elected to serve as commercial litigation, and tort defense. ated from the University of Kentucky the Family Court Judge for the Twelfth Leone completed her undergraduate College of Law in 1983 and was a mem- Judicial Circuit, Seat Number One. studies in 2001 at the University of ber of the Kentucky Law Journal. Judge Pogue’s chambers are located at Louisville and received a Master of 209 East Dozier Street in Marion, South Public Health degree from Case Western The Kenton County Airport Board, Carolina, and his telephone number is Reserve University in 2005. She is a operator of the Cincinnati/Northern (843) 423-5141. 42 Bench & Bar November 2008 WHO, WHAT, WHEN & WHERE Middleton Joseph W. Shea III the board. Porter, a member in the Reutlinger attorney of Shea and Associates Lexington office of Stites & Harbison Donald Vish was in Cincinnati has been and chair of the trusts and estate plan- inducted into the 2008 awarded the Ritter ning/domestic service group, focuses Gallery of Award by the Ohio his practice on trusts and estates, estate Distinguished State Bar Foundation. planning, probate, and fiduciary law. Graduates of The annual award Bellarmine University recognizes the accom- Greenebaum Doll Donald Vish at the Bellarmine Joseph W. Shea III plishments of a single & McDonald PLLC is Alumni Association Ohio attorney in pleased to announce Dinner on September 13. Vish was rec- attaining and promoting the highest level that Eric L. Ison, a ognized as a successful lawyer, an of professionalism, integrity, and ethics member in the firm’s accomplished photographer, and a pub- in the practice of law while assisting Louisville office, has lished writer. The Gallery recognizes others to improve the justice system in been re-appointed alumni who have distinguished them- Ohio. As the founder of Casemaker on- chairman of the selves in one or more of the following line legal libraries, Shea has provided Eric L. Ison Kentucky Board of areas: professional accomplishment, affordable legal research to small firms Bar Examiners. One community service, and demonstration that previously could not afford the attorney from each of the state’s seven of attitudes consistent with Christian expense of subscribing to the service of judicial districts is appointed to the doctrines. the larger publishers. The NKU Chase Board, which is responsible for admin- College of Law graduate has also istering the bar examination in Sarah Tankersley, member of the released the third edition of Shea’s Ohio Kentucky. Ison, who has served as a law firm of Santen & Hughes, LPA has Evidence Manual. member of the Board for eleven years, recently been appointed to the was named chairman in 2005. Cincinnati Bar Association Grievance Governor Steve Committee. Tankersley also serves on Beshear recently J. Stephen Smith, the Women Lawyer’s Committee and on appointed Stites & Of Counsel at the Northern Kentucky Bar Association Harbison attorney J. Graydon Head & Board of Directors. She has been with David Porter to the Ritchey LLP in Ft. the law firm of Santen & Hughes for ten Western Kentucky Mitchell, was reap- years and focuses her practice on pro- University Board of pointed to the tecting the rights of those injured by Regents. Porter will Kentucky Bar medical negligence. J. David Porter serve a 6-year term on Association Ethics J. Stephen Smith Committee and the KBA’s Ethics Hotline. Smith’s practice is focused in complex commercial litigation, construction, Forensic Psychiatry PLLC white collar crime, professional ethics, Providing Psychiatric Expertise To attorney discipline, and securities arbi- The Legal Community tration. He earned his J.D. from the University of Cincinnati College of 919 6th Ave. Huntington WV 25701 Law, a M.A. from the University of Office: 304-781-0228 Fax: 304-781-0229 Kentucky Patterson School of Diplomacy, and a B.A. from Denison Email: [email protected] University. Forensic Fellowship Trained with 20 years of clinical experience Weltman, Weinberg & Reis Co., LPA is pleased to announce that partner Rosemary Taft-Milby was recently Bobby A. Miller M.D. Forensic Psychiatrist and Neurologist elected to serve on the FCIB North American Advisory Council. FCIB is an General forensic psychiatry cases including association of executives in Finance, Brain Injury Civil Competency Credit and International Business. Taft- Emotional Damages Employment Disputes Milby, a member of the FCIB since Independent Medical Evaluation Disability Rating 2007, will serve a 3-year term commenc- Malingering Medical Malpractice Fitness for Duty ing on November 18, 2008. She is the managing partner of the firm’s litigation November 2008 Bench & Bar 43 WHO, WHAT, WHEN & WHERE and defense practice group and is based Law Judge for the Federal Trade Foundation of Pittsburgh in 1993 to in the Cleveland, Ohio office. Taft-Milby Commission in Washington, D.C. after a honor and sustain the legacy of her hus- is licensed in Kentucky and Ohio. 30-year government career. band, U.S. Senator John Heinz.

Stephen J. Thomas J. FitzGerald, of Joseph L. Fink III, professor of McGuire has been Louisville, has been chosen as a recipi- pharmacy at the University of Kentucky appointed as Vice ent of the 14th Annual Heinz Award for College of Pharmacy, has been elected President Compliance the Environment. FitzGerald has been a chairman of the Center for Rural & Ethics for the driving force behind improving the Development in Somerset. Fink has University of environmental landscape within the served on the Center’s board since 2002. Louisville Hospital/J. Bluegrass state and across the nation Graham Brown and is the founder and director of the Stephen J. Cancer Center in Kentucky Resources Council. He is RELOCATION McGuire Louisville. He will among five distinguished Americans Robert N. Trainor relocated his oversee compliance selected to receive one of the $250,000 office to 618 Washington Street in and risk management for ULH. Mc- awards presented by the Heinz Family Covington on September 1, 2008. He Guire, a native of Louisville and a Foundation. Teresa Heinz, chairman of may be reached by telephone at (859) graduate of the University of Kentucky, the Heinz Awards, established the Heinz 581-2822 and facsimile at (859) 581- recently retired as Chief Administrative Awards through the Heinz Family 1047.

Have an item for WHO, WHAT, WHEN & WHERE?

The Bench & Bar welcomes brief announcements about member placements, promotions, relocations and honors. Notices are printed at no cost and must be submitted in writing to:

Managing Editor, Kentucky Bench & Bar, 514 West Main St., Frankfort, KY 40601

There is a $10 fee per photograph appearing with announcements. Paid professional announcements are also available. Please make checks payable to the Kentucky Bar Association.

The deadline for announcements appearing in the next edition of Who, What, When & Where is December 1st.

44 Bench & Bar November 2008 KBA 2009 Outstanding Service Awards Call for Nominations CLICK The Kentucky Bar Association is accepting nominations for 2009 Outstanding Judge and Lawyer, Donated Legal Services and Bruce K. Davis Bar Service Awards. www.kybar.org Nominations must be received by December 31, 2008. If you are aware of a Kentucky judge or lawyer who has provided exceptional service in these areas, please call (502) 564-3795 to request a nominating form or download it from our website at www.kybar.org by choosing “Inside KBA” and SCOTT MADDEN clicking on “Public Relations – University of Kentucky Outstanding Service Awards.” Candidate (B.S. 1970) University of Kentucky (J.D. 1974) Outstanding Judge Award 41st Judicial District Outstanding Lawyer Award (1975-1977) Awards may be given to any judge Clay County Attorney (1980-1985) or lawyer who has distinguished Vice President Clay Circuit Court himself or herself through a contri- (2001-2006) bution of outstanding service to the of Kentucky Private Practice (1974 – present) legal profession. The selection Morgan, Madden, process places special emphasis Bar Association Brashear & Collins upon community, civic and/or char- (2003 – present) itable service, which brings honor Kentucky Justice Association to the profession. Board of Governors (1975- present) 2008 Ofﬁcer 2003-2007 Donated Legal Services Award President 2007-08 Nominees for the Donated Legal Services Award must be members Kentucky Bar Association in good standing with the KBA and 2002-2008 currently involved in pro bono 2002-2008 work. The selection process places special emphasis on the nature of the legal services contributed and the amount of time involved in the provision of free legal services.

Bruce K. Davis Bar Service Award (2009-2010) Many lawyers take time from their Associations (past and present) practices to provide personal, pro- Kentucky Bar Association fessional and financial support to American Bar Association the KBA. This award expresses the Kentucky Justice Association appreciation and respect for such Pikeville College Board of Trustees dedicated professional service. All LMICK Board of Trustees (past) members of the KBA are eligible in Elder, Manchester Presbyterian Church any given year except for current Manchester Kiwanis Club (President) officers and members of the Board of Governors.

November 2008 Bench & Bar 45 46 Bench & Bar November 2008 The Kentucky Bar Association hosted a reception for the new members of the Association who were sworn in on October 17, 2008 in Frankfort at the Supreme Court of Kentucky.

November 2008 Bench & Bar 47

2009KBA ANNUAL CONVENTION Save the Dates!

COVINGTON JUNE 10-12, 2009

By Scott D. Laufenberg Chair, Young Lawyers Section

ublic service has been an important • buying a car and driving it P part of the work of the Young • money and credit Lawyers Section. In past years, the Sec- • contracts tion has adopted projects addressing the • alcohol and drugs problem of school bullying, the lack of • living on your own estate planning documents for first • jury duty, voting, and military service. responders and our veterans, and the need for increasing pro bono service Because the Section believes that an among the bar. important part of this program is the This dedication to public service con- interaction between lawyers and young tinues. The Section’s latest public adults, young lawyers will be making the service project, U@18, is based on a presentation of the material. Attorneys simple premise: educating high school across the Commonwealth are being seniors about the responsibilities of recruited to volunteer to make presenta- becoming an adult. As part of the proj- tions at their local high schools using ect, the Section has developed a 28-page their own relationships with teachers and Kentucky Education Association unani- booklet discussing topics including: school officials. In addition to providing mously endorsed the project. the U@18 booklet, the Section provides I would be remiss if I did not acknowl- • employment volunteers with a sample lesson plan and edge the impetus behind U@18 and • relationships activities for teachers. On October 17, the someone who has been integral to the project coming to fruition. The project 2008-09 YLS EXECUTIVE COMMITTEE was initiated by the Section’s Immediate Chair: Scott D. Laufenberg, Bowling Green Past Chair, Ryan Reed, who oversaw the Chair-Elect: Jennifer H. Moore, Lexington implementation of the project as a pilot Vice-Chair: J. Nathan Billings, Lexington Secretary/Treasurer: Clint Quarles, Frankfort project during the 2007-08 bar year. One Immediate Past Chair: Ryan C. Reed, Bowling Green (ex-officio) of the Section’s At-Large Representatives, District Representatives Rebekkah Rechter, contributed signifi- First: Michael O. Walker, Paducah Fourth: Patrick Shane O’Bryan, Louisville cantly to development of this project. Second: Jennifer L. Brinkley, Bowling Green Fifth: Justin M. Schaefer, Lexington Third: Tighe A. Estes, London Sixth: Jacqueline S. Wright, Maysville Relying on her experience as a former Seventh: Randall L. Saunders, Huntington, WV teacher, she created the program booklet At-Large Representatives and accompanying lesson plan. Roula Allouch, Covington Rebekkah Rechter, Louisville Lauren R. Brooke, Lexington Stephanie Renner, Lexington Robert M. Croft, Jr., Lexington Jesse Robbins, Frankfort The Section is conducting a volun- Sara R. Elrod, Cincinnati David A. Trevey, Lexington Walter Hawkins, Bowling Green Christina L. Vessels, Lexington teer drive for lawyers willing to make Robert L. Raper, Covington Timothy A. West, Lexington presentations in their local schools Local Bar Association Representatives in November. The Section will be Bowling Green-Warren County: Matthew M. McGill, Bowling Green conducting a second volunteer drive Fayette County: Adrien Spencer McKiness, Lexington in April 2009. If you are interested Louisville: Erica A. Lee, Louisville in volunteering to present U@18 in Northern Kentucky: Stacy Hege Tapke, Covington a local school, please contact SBA Representatives Rebekkah Rechter by e-mail at University of Kentucky College of Law: Todd G. Allen University of Louisville School of Law: Rebecca A. Weis [email protected] NKU Salmon P. Chase College of Law: Adam Stigall or by phone at (502) 595-3199.

November 2008 Bench & Bar 49 Classified Advertising Services Offered Recreational Rentals Office Space

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VACANCYANNOUNCEMENT: of the Association is located in Persons interested should submit a letter The Kentucky High School Athletic Lexington, Kentucky. The successful of interest, resume, and three (3) letters Association is accepting applications for candidate will qualify for membership in of recommendation to: Commissioner the position of In House General the Kentucky Teachers Retirement Brigid L. DeVries; KHSAA; 2280 Counsel. DEADLINE FOR SUBMIS- System and follow the hiring guidelines Executive Drive; Lexington, KY 40505. SION OF RESUMES: DECEMBER of background and criminal records Anticipated employment date is after 15, 2008. It is the mission of the check as required by the Kentucky March 1, 2009, however, the start date KHSAA to establish, promote, and Department of Education. This is a full- for the successful candidate will be nego- deliver the highest quality interscholastic time position. Salary will be commensu- tiable upon selection. Deadline for sub- athletic programs and activities in an rate with qualifications and experience. mission of resume and supporting materi- efficient and progressive manner that Benefits include individual health insur- als is December 15, 2008. The Kentucky emphasize participation, safety, sports- ance, retirement system match, and annu- High School Athletic Association does manship, and integrity to enhance the al paid sick and vacation leave. Current not discriminate on the basis of race, educational experience of the student- or retired Kentucky Teacher Retirement color, national origin, age, religion, mari- athlete. QUALIFICATIONS: Admitted System members must comply with all tal status, sex, or disability in employ- to practice law in Kentucky. Minimum KTRS regulations. This position is ment, educational programs, or activities of 4-6 years litigation experience. exempt from Federal and State wage and as set forth in Title IX and Title VI, and Computer competency. TERMS, hour laws and not entitled to overtime in Section 504 and is an Equal SALARY AND BENEFITS: The office pay. APPLICATION PROCEDURES: Opportunity Employer.

50 Bench & Bar November 2008 IMMIGRATION AND NATIONALITY CONSULTANT The Law office of Dennis M. Clare, PSC is available to practice Immigration and Nationality Law before all Citizenship & Immigration Offices throughout the United States and at United States Consulates throughout the world. More than 25 years experience with immigration and naturaliza- tion: member of, American Immigration Lawyers Association. Law Office of Dennis M. Clare, PSC, Suite 250, The Alexander Building, 745 W. Main Street, Louisville, KY 40202. Telephone: 502-587-7400 Fax: 502- 587-6400 THIS IS AN ADVERTISEMENT

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November 2008 Bench & Bar 51 IMMIGRATION AND CONSULTATIVE EXPERTS TO THE MEDICAL LEGAL COMMUNITY ATTENTION PARALEGALS NATIONALITY CONSULTANT Kentucky Paralegal Association Dan L. Owens is available to practice hashas establishedestablished a free job bank forfor Immigration and Nationality Law before paralegalsparalegals seekingseeking employment inin thethe Immigration and Nationality Offices throughout HEALTH CARE AUDITORS statestate of of Kentucky. Kentucky. For more information,information, the United States and U.S. Consulates abroad as • Stat Affidavits 4 Hours contactcontact Lee Chandra Williams Martin at at (859) (502) 581-8046244-7108 well as Customs Law and International • Free Written Reports oror by by e-mail e-mail atat lwilliams@[email protected] Licensing. Member of the American • No Bill! Referral $395 Immigration Lawyers Association and Member • U.S. Largest Med/Legal Consulting Firm Kentucky of Frost Brown Todd LLC, 400 W. Market St. • All major credit cards accepted Paralegal 32nd Floor, Louisville, Kentucky 40202-3363. 23yrs/25k cases. Billions Paid to our Clients. Association (502) 568-0383, FAX (502) 581-1087” TOLL FREE #1-877-390-HCAI THIS IS AN ADVERTISEMENT Corporate Center Location P.O. Box 2675, Louisville, KY 40201-2675 10126 Sorenstam Dr., Trinity, Florida 34655 • Fax (727) 375-7826

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LAWLOR, Before You Move... WINSTON & Over 15,000 attorneys are licensed to practice in the state of Kentucky. It is vitally important JUSTICE, P.A. that you keep the Kentucky Bar Association (KBA) informed of your correct mailing address. Pursuant to rule SCR 3.175, all KBA members must maintain a current address at which he or she may be communicated, as well as a physical address if your mailing address is a Post Office Cam F. Justice, Esq. address. If you move, you must notify the Executive Director of the KBA within 30 days. All Phone (954)525-2345 • Fax (954)730-8908 roster changes must be in writing and must include your 5-digit KBA member identification Specializing in trial work in all FL Courts number. There are several ways to do this for your convenience. Co-Counsel Fees Paid Your Florida Connection VISIT our website at www.kybar.org to make ONLINE changes or to print an Address www.LWJPA.com Change/Update Form EMAIL the Executive Director via the Membership Department at [email protected]

FAX the Address Change/Update Form obtained from our website or other written notification to: Executive Director/Membership Department (502) 564-3225

Boxed ads sized MAIL the Address Change/Update Form obtained from our website or other written notification to: 2 1/4” x 2” Kentucky Bar Association $75 members • $85 non-members Executive Director 15% discount for one year 514 W. Main St. Frankfort, KY 40601-1812 insertions paid in advance Deadline for next issue * Announcements sent to the Bench & Bar’s Who, What, When & Where column or communication with other departments other than the Executive Director do not comply with the rule December 1 and do not constitute a formal roster change with the KBA.

52 Bench & Bar November 2008

Introducing the new KBA member benefit included in your Kentucky Bar dues

Casemaker® Legal Research makes online legal research accessible and easy N Out-of-state & Kentucky legal resources N Free unlimited use for all KBA members N At your fingertips and simple to use

• Go to the Kentucky Bar Association website http://www.kybar.org • Click on the “Login” button on the far left of the menu bar • Enter your KBA Attorney Number in the first field (Username) • Enter your Password in the second field (Your password will either be your date of birth in the form 01/01/19xx or the password you have assigned yourself.) • Click on the “Log In” button After you have logged in, you will notice that the button to the far left on the menu bar now says “Logout” and your name will be on the menu bar to the right • Casemaker® is the first item on the “Resources” menu You will be asked to read and agree to the End User License Agreement From this screen, you will also have access to the Casemaker® user manual

If you need assistance with logging on to Casemaker®, contact the Kentucky Bar Association at (502) 564-3795 or send an email to [email protected].

Note: you must be a KBA Member and you must log in before you will be able to access Casemaker®.

M ark Your Calend ar Ann 2009 u June 10-12,2009 al Conven KBA Covington, Kentucky ti on