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Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Feel painted into the corner by certain legal issues? The paint may be dryer than you think if the terrain of the law is known. This column is intended to discuss appropriate considerations to resolve a certain problem, and should not be viewed as legal advice.

What should be considered in revising student discipline handbooks to more effectively address violent behavior?

1. Elementary school handbooks are in the greatest need of review and upgrade. They are often deficient because of the failure to list a sufficient number of grounds for suspension and expulsion. Failure to include the types of conduct that may lead to suspension or expulsion means that a student may not be legally disciplined. It is advisable to use the comprehensive language of high school handbooks when listing the grounds for discipline at the elementary level.

2. Immediately following the list of specific grounds for suspension and expulsion, be sure to state the ground that is addressed at IC 20-8.1-5.1-9:

In addition to the grounds specified above, a student may be suspended or expelled for engaging in unlawful activity on or off school grounds if (1) the unlawful activity may reasonably be considered to be an interference with school purposes or an educational function, or (2) the student’s removal is necessary to restore order or protect persons on school property, including an unlawful activity during weekends, holidays, other school breaks, and the summer period when a student may not be attending classes or other school functions.

This allows the disciplining of all unlawful activity, whether or not such activity has been specifically stated in the rules, as long as the conduct can reasonably be viewed as an interference with school purposes or an educational function. If this provision is not included, you may only discipline for those unlawful acts that are listed and which occur on school grounds or traveling to and from school grounds.

Note: Due to the Littleton, Colorado massacre at Columbine High School in April, 1999, followed by “copy cat” types of threats to do the same at Indiana schools, a deficiency in IC 20-8.1-5.1-9 has become clear. The adjective “unlawful” modifying “conduct” is a hindrance to a principal’s ability to discipline in situations where the student, who is not on school property, expresses an intent to do violence at school, but it is not specific enough to be considered a violation of criminal law. For example, Student A makes a general statement by e-mail from a home computer to Student B’s home computer that s/he “intends to,” “would like to,” or “plans to blow up the school.” Student B informs the principal, but this statement is most likely not a violation of Indiana law, and therefore, does not constitute “unlawful conduct” off the school grounds, even though it can reasonably be considered an interference with school purposes.

[A high school principal and school attorney informed me while writing this article that a similar event occurred, but law enforcement determined after investigation that no crime was committed. The Indiana General Assembly should amend IC 20-8.1-5.1-9 by deleting the term “unlawful” so that school officials may discipline for any conduct off the school grounds that interferes with school purposes.]

3. Expand the rule against violence, threat, intimidation, etc. by listing specific acts by way of example. The following is the rule recommended on page 85 of the “1998 Indiana Student Due Process and Discipline Manual” published by the Indiana School Boards Association, with expanded examples appearing in italics:

Using violence, force, noise, coercion, threat, intimidation, fear, passive resistance, or other conduct constituting an interference with school purposes, or urging other students to engage in such conduct. The following enumeration is only illustrative and not limited to the type of conduct prohibited by this rule:

a. Occupying any school building, school grounds, or part thereof with intent to deprive others of its use.

b. Blocking the entrance or exits of any school building or corridor or room therein with intent to deprive others of lawful access to or from, or use of the building corridor, or room.

c. Setting fire to or damaging any school building or property, or attempting to set fire or cause damage. This includes the use or attempted use of pipe bombs, “Molotov cocktails,” or other explosive or incendiary devices.

d. Prevention of or attempting to prevent by physical act the convening or continued functioning of any school or educational function, or of any meeting or assembly on school property or at a school-related activity, including the making of a false report of a bomb, fire, or uncommon disease-producing organism, as well as triggering a false fire alarm and delivering or sending an actual or look-alike uncommon disease-producing substance to any school property, vehicle, or activity.

e. Intentionally making noise or acting in any manner so as to interfere with the ability of any teacher or any other person to conduct or participate in an educational function.

f. Through any means of communication, including gestures, symbols, or signals, placing any student, teacher, employee, or other person in fear of harm to one’s self, a family member, or personal property. This includes by way of example such conduct as threatening “to get” the person, creating a “hit list” of persons who are to be put in fear of harm, and warning the person that a family member could get hurt or one’s car could be damaged. 4. Include in the handbook a statement like the following informing parents of their liability of up to $5,000 for each instance of personal injury and property damage caused by their children:

Pursuant to Indiana Code 34-31-4-1, a parent of a child (who lives with the parent and over whom the parent has custody) is liable for up to $5,000 in actual damages arising from each instance of harm to any person or damage to any property that is knowingly, intentionally, or recklessly caused by the child.

5. Inform parents and students that school officials will contact law enforcement authorities whenever in their discretion there is reason to believe that a student’s conduct is unlawful and has caused or may result in either serious bodily injury to another person or substantial damage to the property of another, including the school corporation.

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

May students be excluded from programs such as athletics, cheerleading, and honor society based solely on grounds of pregnancy?

1. Because only female students would be impacted by exclusion, this question raises legal issues under both Title IX and the Equal Protection Clause of the Fourteenth Amendment.

2. There could also be a Section 504 issue if the school would prevent participation in athletics or cheerleading on grounds of a temporary disability without attempting to make a reasonable accommodation. If the person’s performance is negatively affected by the pregnancy condition, reasonable adjustments can be made without implicating Section 504, just as they are for any injury, such as a sprained ankle or twisted knee.

3. The applicable portion of the Title IX regulation reads:

“(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.” 34 C.F.R. Sec. 106.40(b)

4. A federal circuit court interpreted the Title IX regulation to mean that a school could legally exclude a female from National Honor Society (NHS) if the reason was not because she was pregnant, but because she participated in premarital sex. Pfieffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3rdCir.1990). The court did note, however, that the school would have had to apply the same rule against premarital sex to male students. Interestingly, since there was evidence that the school may have allowed such a male to remain in the NHS, the court remanded the case to the trial court to consider this factor before making a final decision on whether the girl’s exclusion violated Title IX.

5. A federal trial court in Kentucky recently ruled that a school violated Title IX when it excluded a female student from NHS due to her pregnancy. Chipman v. Grant County Sch. Dist., 30 F.Supp.2d 975 (E.D.Ky. 1998). The school’s carefully drafted NHS policy stated that pregnancy was not a basis for automatic exclusion, but could be considered as a factor in assessing character. It also stated that pregnancy could be taken into account “only if evidence of paternity is similarly regarded.”

6.The court found that the policy had a substantially disparate impact on pregnant students, all of whom, of course, are female, and that the school could not justify such impact with its defense of character development because there are many alternate means of assessing a person’s character by use of non-discriminatory criteria. The court also found the existence of disparate treatment, although there was no evidence that a male who had fathered a child had been admitted to the NHS. It reasoned that the female plaintiff met her initial burden by showing that she was a member of a protected class and that she was treated differently because of her gender. The burden then shifted to the school to articulate a legitimate, non-discriminatory reason for its action, and the court found that the school’s reasons failed because they were “vague, conclusory, and undocumented,” and, also, were not credible.

7. An Illinois school was found to have violated both Title IX and the Fourteenth Amendment’s Equal Protection Clause when it excluded a pregnant student from the NHS. Wort v. Vierling, Case No. 82-3169, slip opinion (C.D.Ill. Sept.4, 1984), affirmed as to attorney fees award, 778 F.2d 1233 (7th Cir.1985). The trial court found that the reason for exclusion was pregnancy, and not premarital sex, and since only females become pregnant, unlawful unequal treatment existed.

8. An Arizona school violated Title IX and Equal Protection when it denied entry to the NHS to a pregnant student, but allowed a male who had fathered a child out of wedlock to become a member. Cazares v. Barber, Case No. CIV-9-0-0128-TUC-ACM, slip opinion (D.Ariz.May, 31, 1990).

9. The Chipman case from Kentucky presents principals and attorneys with the most challenge because the policy on its face states that pregnancy may not be considered in assessing character unless male students who caused pregnancies have their character similarly assessed. This case does not set legal precedent in Indiana and the court’s analysis of disparate impact and disparate treatment may not necessarily be adopted by an Indiana court. Therefore, schools wanting to apply a pregnancy rule (although, legally, it is better to reference it as a premarital sex rule) fairly and uniformly to both genders still have a defensible argument that neither Title IX nor Equal Protection is violated by such a rule. Due to the complexity of the issue, be sure to get your school attorney’s advice before proceeding in this area.

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Feel painted into a corner by certain legal issues? The paint may be dryer than you think if the terrain of the law is known. This column is intended for informational purposes and should not be viewed as legal advice.

Situation Briefs

The following issues have been presented to this writer in the recent past by school administrators. The summary responses are shared to improve administrator recognition of problem areas and to give a brief legal background to assist in problem resolution. Consultation with the school attorney is very important because each situation is different and the law to be applied is more complex than what is revealed in these responses.

ISSUE: High School has an 18 year old student who has moved in with another family in the district. He does not want the school to have any contact with his parents who also live in the district. How do we handle this?

RESPONSE: Three things must be considered. First, no tuition is owed since his parents live within your school district. Second, under FERPA, the rights of the parent to inspect his records transferred to him when he turned 18; so, if the student puts a request in writing that his parents not see his records, you could honor such (although under the FERPA regulations, you do not have to honor such a request). Third, the school probably has rules regarding parent notification in cases of absence, etc., which probably were not meant to apply to this situation. I don't know exactly how you resolve this one at the administrative level, unless it is not a school board rule and the administration has the authority to adjust the rule when the student is not emancipated, but no longer living with the parent. Perhaps the adults with whom he is living would be a surrogate parent for purpose of calling in if he is ill. For more formal purposes, however, such as student discipline, suspension or expulsion, it is recommended that you get the parent and the other family to complete and sign the Third Party Custody Agreement (DOE Form 2) where the new family agrees to take over legal responsibility with regard to school matters.

Only if legal settlement is in issue would there be a technical need to have the student complete an affidavit form stating facts under oath that support all of the four criteria listed in the emancipation statute below. Normally, when 18-year olds move out to live with someone else in the same school corporation, they are not legally “emancipated” because they do not meet all four of the requirements. The most common one that is not met is number (1), furnishing his/her own support from his/her own resources. If the “surrogate parent” (my term, and not a legal term) assists with such cost items as board, room, transportation, or clothing, then emancipation would not exist.

However, even though “emancipation” does not exist in most cases, a court would likely have a difficult time finding a school’s attendance rule reasonable which would give such student an unexcused absence if the biological parent did not call and report illness as a reason for missing school.

IC 20-26-11-4. Emancipation. A student is emancipated when the student: (1) furnishes the student's support from the student's own resources; (2) is not dependent in any material way on the student's parents for support; (3) files or is required by applicable law to file a separate tax return; and (4) maintains a residence separate from that of the student's parents. As added by P.L.1-2005, SEC.10.

ISSUE: I just finished reading your Situation Brief regarding ADA situations. We have been working with a teacher for several years (May 2004) and would like to know if we have fulfilled our obligations and can proceed with dismissal. The situation is complicated as you may guess, but here are the basic facts:

1.) The teacher was bumped by a student on school property and fell. At the time she hurt her shoulder and had to have surgery. The workers compensation claim became very involved. She later claimed she hit her head and suffered traumatic brain injury. 2.) Workers Compensation settled the claim in October of 2007 for the shoulder injury. 3.) We have written several letters informing the teacher that she has no options left for leaves of absences. 4.) One letter told her that she needed to contact us if she wanted to return with accommodations 5.) Her reply was that she was injured on the job and cannot come back to work at this time.

She has exhausted all leave offered by the teacher master agreement. We have offered to talk with her regarding accommodations, but she just states she wants to come back when she is able. We have no long term disability plan so we just have her hanging out there. Last year she told us she was coming back as soon as the doctor released her, but that did not happen. The doctor finally wrote a letter and stated that he did not think she was able to return to work. We held a position open for her and we do not want to do this again.

RESPONSE: In my opinion, based on a Seventh Circuit case, you do not have to provide continuing leaves of absence under the Americans with Disabilities Act (ADA) as part of a reasonable accommodation. Under the ADA, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. Both she and her doctor are saying that she cannot perform the work of teaching. Hence, it is my view that the ADA does not protect her. Thus, you may begin contract cancellation proceedings. Remember, if she is a permanent teacher, the school board must vote to cancel her contract before the last student day of school. Be sure to follow the Teacher Contract Law cancellation procedure as well as any other requirements that may be in your bargaining agreement. Your information about the teacher, however, may be stale; so I advise you to confirm with her that she is in the same position as last year and is unable to return to work.

ISSUE: I have an issue that needs clarification. When a school puts in its student handbook that students are not permitted to use cell phones or other electronic devices during the school day and the consequence is confiscation--what are the parameters for the confiscation? Can a school hold a cell phone/IPod etc. for more than 24 hours? Can a school hold a phone until the parent can pick it up?

RESPONSE: The issue is one of reasonableness under the circumstances and not having the "confiscation" turn into a taking of "property" under the 14th Amendment or conversion (theft) under Indiana's criminal statutes. One school that had planned to keep the cell phone for the rest of the semester was sued for the proportionate value of the phone and monthly bills. The school immediately returned the phone to the parents. The best practice in my view is to have the phone available for pick up by the parent during office hours beginning the first day of confiscation.

ISSUE: A 14 year-old girl at our school has been romantically involved with the brother of one her classmates. This man is 26 years-old and the parents have gone to the police and are pressing charges against him. The parents did not say that they were seeking a restraining order against this man; however, they were/are concerned about this man providing transportation for his younger sister to and from school. This is something that that he has done before, which was an opportunity for him to see this girl after school. Right now the parents are fearful that he may try and speak with this girl if he shows up to give his sister a ride home one day. We told the parents that we would supervise student drop off/pick up to ensure this doesn’t happen. However, do we have any legal rights to prevent this man from coming onto school property? He has not been on school property since charges have been filed (that we are aware of), but I want to know my legal options if he does come to pick his sister up after school. Our local police department has been contacted and they are aware of the situation.

RESPONSE: In the interests of child safety and avoiding potential child molestation, and especially since the parents have file charges against him, it is reasonable for you to send or give him a "no trespass" notice letter denying him access to school property. Once received by him (or it can be given orally), you then may call police and have him removed (and file charges if you wish).

ISSUE: We have an employee whose wife is running for County Treasurer and he carries one of her big wooden election signs in the back of his truck. He parks his truck at the administration office daily and drives it to the other school buildings. The question has been asked are we supporting this candidate since this sign is here daily. To add to this we also have an employee here at the administration office whose husband is the current Treasurer and running again for office.

RESPONSE: First, check current board policy to see if the matter of election campaign signs/materials has been addressed. If so, your answer will be found there. If nothing has come from the Board on the subject, the Board will have to decide if it wants to address it or let you handle it administratively.

Legally, it is a free speech forum question. If the school has previously allowed vehicles with advertising signs of any kind, not just political, to be parked at school for considerable lengths of time (not just attendance at, say, a ball game), then you already have an open forum for public expression and would run the risk of encountering a claim of viewpoint discrimination (which is a violation of the First Amendment free speech clause) should you require this particular sign to be removed from the vehicle that is parked at your various buildings for considerable periods of time during the business day.

A school that has opened up its forum may always close it, as long as it is not for the specific purpose of prohibiting the particular speech in issue (i.e., viewpoint discrimination). In my view, because the event has already occurred, the School Corporation would be legally better off to wait until after the primaries to close the forum for political expression. If this is done, then the employee married to the current county treasurer who is running could put signs on her vehicle. Since the political forum expression has been limited so far to vehicle signs, you could close your forum at this time to all other political signage, leaflets, brochures, matchbooks, etc.

However, if by practice (or policy, if you find such), you have evidence that your practice (or policy) has not been to allow political advertising on school property, then that forum has been closed and you could require the employee to remove the sign or drive another vehicle to work without violating the First Amendment.

ISSUE: High school teacher confiscated a student’s cell phone when she saw him violating school’s rule against their use during class time by text messaging another party. Teacher took the phone, opened it up, found the log and scrolled through the text messages finding evidence that the student had sent four messages during that class period. Had the teacher found evidence of other rule violations, e.g., marijuana use or dealing at school, could it have been used to expel the student?

RESPONSE: Any evidence of another rule violation found in the memory of a student’s cell phone could not have been used in evidence against the student because in my opinion the teacher violated the Fourth Amendment by having searched for information for which there was no reasonable suspicion that the information contained evidence of a rule violation independent of merely using the phone, a fact that the teacher already knew. Under the Supreme Court’s T.L.O. case standard, the search of a student must be reasonable at its inception and reasonable in scope in light of all the facts and circumstances. It will be found reasonable at the search’s inception if the searcher has reasonable cause or suspicion to believe that the item searched will turn up evidence of a rule violation.

Under your facts, the teacher, by his/her own observation only had evidence of one rule violation, i.e. impermissible use of the cell phone during class time. A search of the informational contents of the cell phone’s memory would only confirm what the teacher observed. However, if the text messaging occurred during the taking of an examination, there would have been a reasonable belief that the student may have been sending information about the exam to another student and, hence, a search of that one message would

3 have been reasonable to see if the rule against academic cheating had been violated. Or, if the student denied text messaging at the time in question, then if would be reasonable to have checked the phone for the information confirming that there was a text message sent during the class. But the reading of the actual content of the message sent without a reasonable belief that the content violated a school rule, would violate the Fourth Amendment. Thus, if the search is not legally valid, the information discovered, even if a crime of major consequence, could not be used in evidence for expulsion, juvenile, or criminal sanction purposes.

ISSUE: I was informed last night, April 30, by our adult education director that a Supplemental Service Teachers Contract person needs to have her contract reduced by eight hours per week due to the justifiable decrease in the number of hours necessary in your contract to fulfill your teaching duties. The teacher has been in this position since 1997, but it is always an hourly contract labeled Supplemental Service Teachers Contract. What procedure do I need to follow for notification?

I have a letter ready for delivery today; however, our last student day is May 28 last teacher day is May 29. In the letter I state that should the teacher desire to have a hearing, the teacher must request it in writing within fifteen days after your receipt of this notice. If the teacher does not file a request for a hearing within fifteen days after the receipt of this notice, the teacher will waive your right to a hearing. The board meeting would be May 27. Am I meeting the timeline? Since it is a Supplemental Service contract, do I need to follow these procedures?

RESPONSE: IC 20-28-6-7 is the Supplemental Service Teacher Contract Statute. You will see in subsection (c) that if the teacher teaches more than 120 days on such contract, other sections of the teacher tenure law apply including semipermanent and permanent contract status. Thus, if this teacher served five successive years under such contract at 120 or more days each year, and then entered into a sixth such contract at 120 days or more, you have a permanent supplemental teacher on your hands. If such, then you have to follow IC 20-28-7-3's procedures to partially cancel her contract.

However, and fortunately, you would not have to follow the permanent teacher grounds section of the tenure law, IC 20-28-7-1, which would have forced you to have cancelled the contract due to justifiable decrease by the "end of the school term," which the Court of Appeals in the Blue River Valley case stated was the last student day of school.

So, in recap, if the teacher is permanent, you need to follow IC 20-28-7-3's procedural requirements, but are not bound by the last student day of school time limit and, rationally and arguably, may use any relevant reason to partially cancel the supplemental contract. Please note that you have to give the teacher a minimum 30 days notice of when the board will meet to consider the partial cancellation. If the notice is given today (May 1), day number one is tomorrow and the 30th day is Saturday, May 31 (with the 40th day on June 10). Hence, you'll have to set the board consideration date between May 31 and June 10 by my count. Double check these times yourself.)

ISSUE: We had a student and parent report a possible case of sexual harassment Tuesday after school. The principal investigated most of the day Wednesday, reported to me at 2:30 his findings, and called Child Protective Services shortly after talking to me. The Director of CPS thinks we should have reported to them immediately on Tuesday evening. My point is the principal acted appropriately and certainly with in our policy and guidelines. Should the report have been made when he was first notified or after he investigated? The history at our middle school is that once in a while a girl yells "wolf" that turned out not to have any foundation. That is why he investigated. This code talks about "Immediate oral report..." What is the definition of immediate in a case like this?

RESPONSE: There is no statutory definition of the term "immediate," so courts will look to the common meaning as found in a dictionary. The following most relevant definition from the Merriam-Webster Online Dictionary states (my emphasis in bold):

4 a: occurring, acting, or accomplished without loss or interval of time : instant b (1): near to or related to the present (2): of or relating to the here and

4 now : current 5: directly touching or concerning a person or thing

It looks to me that "immediate" as meant in the child abuse/neglect statute means the very moment the administrator had reason to believe the child may have been a victim of such. Depending on what was said to the administrator by the student and parent on Tuesday, the administrator may very well have had a legal duty to report it then rather than wait to investigate and report it the next day.

Although I was not given the facts as presented by the student to the principal, the statute defines "reason to believe" as "evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected." It would be fact sensitive for each situation. For example, if the female student in your situation was known by the principal to be untrustworthy, or specifically to have made false reports of sexual harassment before, then I believe the principal could have waited until the next day to investigate and attempt to gain further facts because he would have had a factual basis for believing that the student may have been lying and a need to get additional facts for him to have reason to believe that she was abused. However, if the principal had no basis for thinking she was lying, then I am of the view the legislative intent was to call the authorities without further delay. The fact that sometimes a girl prevaricates, but not this particular girl, would be insufficient in my opinion to delay the report.

ISSUE: In "gearing up" for the possible employment of retired teachers, I have the following questions:

ISSUE A: It would be my belief the employment for a retired teacher is for one school year at a time. Therefore is a regular teacher's contract used or do we use the same type of notification of working conditions we do with our support service personnel? This would be a document that states days worked, compensation and benefits for which the person is eligible.

RESPONSE A: If X Schools re-employ one of your retired teachers, you would have to recognize the tenure category that the person previously held (which most likely would be "permanent") and you would have to enter into a Regular Teachers Contract. This is due to the language in the state Teacher Tenure Act (“TTA”). If you employ a retired teacher from another school, the Regular Teacher Contract form would have to be used, but the person would be a first-year nonpermanent teacher with you and you would have the flexibility of a nonrenewal at the end of the year, but would have to use the TTA procedures for nonrenewal.

The TTA does allow the school board and the exclusive representative to bargain master contract language that alters the grounds and procedures for terminating teachers, but absent bargaining a simpler procedure with simpler grounds to terminate this classification of teachers, the TTA would compel you to follow the statutory procedures and grounds as if the reemployed teachers had not retired.

ISSUE B: Is the retired teacher considered an "At Will" employee?

RESPONSE B: No, not under the TTA. But if you, in effect, bargain such into your master contract, then you would have that (or similar) flexibility.

ISSUE C: The Association representatives and I have agreed upon how salary is calculated as well as benefits. Are there contractual and/or employment pitfalls that you see of which we should be aware?

RESPONSE C: All salary and fringe benefits, as well as contract termination grounds and procedures for these teachers who are re-employed after retirement from your school system or another, would have to be bargained into the master contract and ratified by the exclusive representative and school board before becoming effective.

ISSUE: What is the best way of handling the situation where the school employs a teacher to replace another who is on a leave of absence or who resigns and leaves during the school year?

5 RESPONSE: I do not think it necessary to attempt to modify your master contract language as it defines "teacher" because of other options available. When a teacher applies for and is granted a leave of absence for a specific period of time by the school board, the Temporary Teacher's Contract Law permits the school to employ the replacement teacher on a temporary contract for the specific period of the leave granted the other teacher. IC 20-28-6-6. Subsection (b)(1) of this Law states that said contract "must contain the provisions of the regular teacher's contract, except for those providing for continued tenure of position." The emphasized exception is not a shining example of clarity by any means, but in my 29-plus years experience in school law, I and other school counsel around the state, have interpreted this to mean that the temporary teacher's contract expires automatically at the time stated in the contract and does not qualify for an additional year of teaching or provide the teacher with the right to any due process upon its automatic expiration. There has been no litigation of this point by any teacher or teachers' union over this period of time.

Thus, by expiring automatically at the time stated in the temporary contract, the school is not under any duty to follow the nonrenewal procedures for first and second year teachers (nonpermanents), which also means that there is no legal duty for the principal to have evaluated the temporary contract teacher by January 1 under the nonpermanent teacher statute. However, depending upon your school's language in your Staff Performance Evaluation Plan, such a duty may have been self-imposed.

The case of Paul v. MSD of Lawrence Township decided by the Court of Appeals in the mid-1980's stands for the legal principle that a school does NOT have to use a temporary teacher's contract to replace a teacher who has been granted a leave by the school board. The Court stated that IF a school decides to issue a contract to a replacement teacher, it must be a temporary contract. The Court approved Lawrence Township Schools' action of (rather than using the temporary teacher's contract) merely employing a substitute teacher at the lower sub-rate of pay for the first 15 days, and then pursuant to the substitute teacher statute, increasing the pay on the 16th day to what the teacher would have earned under the master contract.

Lastly, where a teacher resigns and leaves midyear, the temporary teacher’s contract option is not available because the departing teacher was not granted a leave for a specific period by the school board. The only “safe” option is to employ the replacement teacher on a regular teacher’s contract for the remainder of the year and if there is any question as to competency, nonrenew the nonpermanent teacher using the “May 1” notice and conference process under IC 20-28-7, sections 8 through 12.

The use of a substitute teacher without a contract in the above-situation rides the vague line of legality v. illegality. There is no Indiana case law on this point, but my thinking has been based on the dictionary definition of "substitute" (in that when the legislature does not define what define a term, which is the case with "substitute teacher," courts will rule that the legislature meant the ordinary meaning of the term as found in the dictionary). The Merriam-Webster OnLine Dictionary defines "substitute" as: "a person or thing that takes the place or function of another." Hence, a court could interpret this in at least two different ways: (1) when the person whose place is being taken by the substitute dies or resigns, a substitute teacher situation no longer exists because there is no one whose place is being taken and who will return; or (2) the substitute may work in the situation where no one is returning because the substitute is performing the function of the former teacher.

Courts have great latitude in interpretation and could determine that even if the regular teacher died or resigned, there is still a future person to become the regular teacher and, hence, the use of a substitute is valid because the substitute is taking the place of another person to be named in the future.

Unfortunately, you may become the test case in Indiana to see which way the court will rule. There are clearly public policy factors that would support you in the argument that the substitute that you have had in place should continue until you secure a regular teacher for the position, i.e., continuity of instruction and not having to convert the substitute teacher to a regular contract and then being required to follow the statutory process to nonrenew the contract at the end of the school year in order to open the position up in order to seek the most qualified regular teacher for the position.

6 ISSUE: We have hired a substitute teacher (no teaching license, but has substitute permit) to fill a three to four week maternity leave. We were unable to find a qualified teacher to take the assignment. My question is this - is there a maximum period of consecutive days that a substitute can fill a position? Beyond that maximum, can we issue a temporary teaching contract to cover the remainder of the leave if the substitute does not have a teaching license? If not, what do we do beyond those days?

RESPONSE: By regulation, 515 IAC 1-2-17, a substitute teacher who only has a "substitute certificate" (as opposed to a "one year substitute certificate" and a "five year substitute certificate), may not teach more than 119 total days in a school year. The regulation is silent, as is state statute, on your question of "consecutive days" for substitute teachers. Hence, there is no maximum-consecutive-days limit. (IC 20-28- 9-7(b)speaks to 15 consecutive days and then being paid regular teacher pay, but only for teachers with a provisional or professional license. There is no legal duty give any kind of contract to a licensed teacher who subs for 15 consecutive days and then continues teaching. You only have to advance such a substitute to regular teacher pay.)

A school would never issue a temporary teachers' contract to a substitute teacher who does not have a valid Indiana professional or provisional teacher license. Nether would a school begin paying the regular teacher's rate of pay on the salary schedule when a non-teacher licensed substitute teaches 15 consecutive days in one position and then continues teaching in the same position pursuant to IC 20-28-9-7(b). Therefore, the substitute teacher with only a "substitute certificate" (and not a professional or provisional teacher license) would continue at the School Board established substitute teacher daily rate of pay.

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Situation Briefs

ISSUE: Is it state law that a superintendent must be paid for unused vacation days? I was told this by our previous Superintendent, but wanted to get your expert advice.

RESPONSE: Unless the Board has given the Superintendent (in his/her employment contract) the ability to carry over unused vacation days from year to year, they are lost in my opinion.

However, if you are referring to a situation where the superintendent is leaving the school system with vested, but unused, vacation days, there is a state law that will apply, the Wage Claims Statute. It requires all employers to pay the full amount of wages owed to an employee who terminates employment (or is terminated from employment). The amount owed, according to case law, includes earned, but not used, vacation days, and the Statute provides that the amount owed must be paid in the last regular paycheck. Failure to do this can lead to having to pay double damages, back interest, and attorney fees.

ISSUE: I have a question about an expulsion that occurs near the end of the semester. At one time I thought that there was a legal opinion that when an expulsion occurs within the last two or three weeks of the semester that the student had to be allowed to complete the semester. Also if this is still true, is it the date of the incident and start of the expulsion process or the actual date of the expulsion that matters.

RESPONSE: There really is not a legal opinion of this kind (at least one that's worth anything). The statutory definition of "expulsion" contains a provision that if the student is separated from school attendance for the balance of the current semester or year and is not permitted to take exams in order to earn credit, then you have to treat it as an expulsion and use the more formal statutory process (but you can still do it). The Indiana Supreme Court ruled in the South Gibson case that a school may expel a student for conduct at the end of a semester/year and may legally deny course credit for the semester in which the misconduct occurred and for which the expulsion applied (even though the expulsion, itself, took place after the end of the semester or year). The key reference point is the semester in which the misconduct occurred.

ISSUE: If we can substantiate that a student has stated that they wish to harm themselves or others while at school, we have suspended (not expelled) until the parents can prove that the

1 student had seen a psychiatrist. We have used the doctor’s documented statement that they believe the student is not a threat to anyone as the ticket for return. Are we legally sound in this practice? If not, do you have suggestions?

RESPONSE: I have heard of other schools using the same practice, but still believe that it is a violation of the state Student Due Process Statute (as well as the 14th Amendment's due process clause). The statute: (1) limits suspensions to 10 days for a misconduct violation, and (2) requires a violation of the misconduct code for each additional suspension. First, I do not think that a student’s “wish” to harm him/herself is misconduct for which a school may initially suspend a student. Secondly, a parent's refusal to obtain an expert's opinion that the child is mentally capable of returning to school is an act of misconduct by the student for which you could attach a follow-up suspension. Neither do I believe a school has the authority to extend a suspension beyond 10 days for reason of not supplying a medical expert's statement, even assuming that there was an act of misconduct for which a proper 10-day suspension was originally issued.

The student health statute that authorizes the principal (without following the suspension process) to send the child home with a note and to require a medical statement for the child to return, IC 20-34-3-9, applies to a student who is "ill, has a communicable disease, or is infested with parasites." The only "wiggle-room" that a school would have involves the meaning of "ill." Because of the term's placement in the series of terms, the latter two of which relate to a physical heath condition, it has been my interpretation that the legislature meant that "ill" referred to a physical, and not a mental, condition. (There is a rule of statutory construction referred to in Latin as ejusdem generis, meaning of the same kind.) It would be an uphill legal struggle in my view to convince a court that a principal could send a child home whom s/he believed had a mental illness.

The only way that I know that would be legal is the use of an ISBA "Form 16 " waiver and probationary return agreement, where the school would allow the student to return to school in advance of the maximum statutory limit (10 days for a suspension and two semesters for a misconduct rule violation, unless it was a firearm or destructive device possession, which allows for a three semester expulsion or a deadly weapon possession which allows for a one calendar year expulsion) in exchange for the parent’s and student's promise to provide a medical expert's statement of no harm to self or others. Again, this assumes that the student’s actions for the original suspension or expulsion were an act of misconduct (as opposed to a “wish” to harm him/herself).

ISSUE: Can school corporations and their local police departments share information about incidents that occur in the community (e.g., for underage drinking)? Our police department currently shares information with our high school administrators. A reported incident could, for example, have an impact on a student's athletic eligibility (Athletic Code of Conduct). We evidently have a parent who says she has received an opinion from the ACLU that apparently tells a different story (We have not, however, seen the letter). Is there something in the Indiana Code that permits the police department and school corporation to share this information?

RESPONSE: The attachment lists the Indiana Code sites and language pertaining to juvenile and law enforcement agencies sharing records and information with "interested persons" and "school officials." The only two that expressly speak to information are the following:

(1) IC 31-37-4-3 requires law enforcement to give notice of information to schools regarding an arrest for 26 specific serious crimes.

2 (2) IC 35-50-8-1 requires the presiding criminal court judge or juvenile judge to give information to schools of a criminal conviction or adjudication of a student.

The most promising one in your situation is IC 31-39-4-8 that allows law enforcement to share records with "interested persons." This is important because it would logically include information in a record that is immediate, such as an arrest. Therefore, the school would not have to wait for months to learn about a criminal conviction or juvenile adjudication.

ISSUE: The following incident took place at our high school last week:

A girl complained to the office that a boy had his cell phone out during class and was showing lewd pictures to her from the phone. I called the boy down to the office and asked him about the situation. He admitted to having the cell phone with him. When I asked him about the pictures on the phone, he said that he had several naked pictures on the phone. When I asked if any of the pictures where of our students, he said yes. He named five of our students and said that all five had nude photos on his phone. He also said that he had pictures from adult men over 21 who had sent him nude photos. After he admitted to having the phone, I asked for him to turn the phone over and he did willingly. I contacted the sheriff’s department and they told me to verify that there were, in fact, nude pictures on the phone and to see if any could be identified as our students. I gave the phone to our computer tech and he downloaded about 50 pictures from the phone. I called the parents of the students who had nude photos on the phone. The boy with the phone was recommended for expulsion. The phone was then turned over to the sheriffs department. The boy’s mother has been complaining that we conducted an illegal search of her son’s cell phone. I believe that we had a responsibility to check the phone. My superintendent suggested I email you to be sure.

RESPONSE: Under the Supreme Court’s T.L.O. case, reasonable suspicion and reasonable scope are what is necessary for public school officials to conduct a valid search under the Fourth Amendment. In my opinion you conducted a valid search because your reasonable suspicion initially came from an eye witness who gave specific information about what his cell phone contained and what would be a violation of school rules and, perhaps, state and federal law. In addition to the initial information, the boy who possessed the cell phone then admitted what was reported by the witness under your reasonable questioning before the search. Secondly, the scope of the search was reasonable in that you and your computer technician searched only the cell phone which was the item in issue.

ISSUE: We have a parent who is insistent that she has the right to view bus tapes that show other children, and that punishment information regarding other students who may have "harassed her children" can passed on to her via a "school safety official". She references FERPA. Please advise if we've been misinterpreting the regulations.

RESPONSE: This is tricky. Only if the bus tapes are "education records" do you have the right, based on FERPA, to deny her access to video images of students other than her own. The key to the definition of "education records" is: are they "maintained" by the school. If you do not as a matter of practice keep the tapes for a substantial period of time and basically erase over them, I do not believe they are "maintained," and, thus do not qualify as an education record that you must keep confidential under FERPA.

However, if the tape in question has been kept for purposes of a disciplinary record, then I believe it is maintained, and the parent in issue may only observe her child on the tape and no one else.

Lastly, I see no valid basis to her argument regarding a "school safety official." There is a law enforcement unit exception to the definition of "education records" in the regulations at 34 CFR, section 99.3(b)(2) and section 99.8 (which basically allow the school to share an "education record" with its law enforcement unit). First, you have to have such unit at your school, and even if you do, if this tape is part of their records, it does not lose its status as an "education record" for purposes of the confidentiality requirements to protect access by persons other than the parent.

ISSUE: Regarding the school charging a fee for a student who takes drivers education, we have always included the teacher’s salary in the fee. Is that still true today?

RESPONSE: Even though the State Board of Education rule that required schools to offer drivers education was allowed to expire in January 2008, the rest of the rule still exists regarding classroom instruction and time behind the wheel. Also, the 1974 Chandler case from Indiana's Court of Appeals was not overruled by the Supreme Court's 2006 Nagy student-fee decision. In Chandler, the court defined tuition as a charge for instruction. In Nagy, the court allowed two basic exceptions to its general rule that where the Legislature or State Board of Education requires or permits schools to establish “programs, activities, projects, services, or curricula,” the parents may not be charged a fee to participate therein. The two exceptions are where the Legislature permits a fee to be charged (such as textbook rental fees), or where the school expands upon that which they are required or permitted to establish. I do not think that the charging of a fee that includes the drivers education teacher’s salary falls within either of the two Nagy exceptions. Hence, in my opinion, any school that includes the drivers education teacher's salary as part of the fee for taking the course would most likely lose a lawsuit alleging that such a charge is illegal tuition in violation of the Indiana Constitution.

ISSUE: How long do we need to keep a record of a student who has been expelled? Some of the records date back to 15 years ago.

RESPONSE: Statute is silent on the number of years to retain student discipline records. If your County Public Records Commission has not adopted a records retention schedule for all public bodies within the county, then the state statute regarding destruction of public records will apply, which has a default provision of three years retention of the record in issue. See IC 5-15-6-3(a).

Secondly, if your County has adopted a records retention schedule that lists the records to be destroyed, then that schedule's period of retention will prevail over the statutory default period of three years. For example, if it states something like “Student Records” and gives a retention period of five years, you would have to keep them for that many years. However, if the adopted county schedule does not list the record to be destroyed, the school must request and receive consent from the County Records Commission to destroy the record, even after the three-year statutory default period has passed.

ISSUE: Do parents still need to sign for student handbooks? Did this law change? Or do we now just have to have the handbook easily accessible (copies in office and on the website)?

RESPONSE: Since 1995, there is no longer a statutory requirement for parents to sign for the student handbooks. IC 20-33-8-12(a)(2) requires you to give "general publicity" within the building by such things as making copies "available" to students and parents, or by "delivering a copy of the discipline rules to students or the parents of the students." Lastly, this statute states that the notice requirement is met if the school makes a good faith effort to disseminate "generally" to "students or parents the text or substance of the rules. (Notice the word "or" in the

4 last two quotes.)

My advice is that the school should, at a minimum, make sure each student receives a copy and that the parents are told where they can read or obtain a copy.

ISSUE: After offering a teaching position to a gentleman, I found out that he had resigned from a former position due to allegations of inappropriate relations with a student. The student came forward and stated that she falsely accused the individual and the charges were dropped. The individual was criminally charged, however. Do we have an obligation to move forward with the offer or can we negate the offer due to the individual not disclosing this information.

RESPONSE: The Teacher Contract Law requires a teacher's contract to be in writing and signed by both parties to be enforceable. IC 20-28-6-2. The School Powers Act also requires a majority of all the board members to approve all contracts. IC 20-26-4-8. Since it does not appear that you have done either of these things, there is no enforceable contract and the person who was "offered" the position has no valid claim if you withdraw the "offer."

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Situation Briefs

Issue: We had an incident today that needs your expertise. I will write exactly what my teacher wrote. The question is, “Is there a violation of I.C. dealing with threatening of a teacher and mandatory reporting of the incident to local police?” The teacher writes [names changed]:

I asked John to empty his pockets before going out in the hall for 5th period to work on past due assignments. I saw that he had a “PSP” in his pant pocket. The “PSP” player measures approximately 3” by 5” and is obvious that he had it in his possession which is against school rules. He refused to give me the player upon discovery. I reminded him that he had been previously caught watching videos in the hall while working on past assignments with this same player. I then contacted the office to send someone to get him after his continual refusal to hand over the player. I continued with class instruction. For no reason, he became verbally abusive using profanity towards me. He picked up his book bag and said he was leaving. I put myself by a desk located by the door, and told him could not leave. He made some comments and pushed his way past me as he made his way through the door opening causing me to go backwards. I followed him out to the hall where I stopped due to a desk being pushed into me, as a barrier, by John. He walked out of the building. SRO Smith appeared in my room and then proceeded to find John. Upon returning I showed SRO Smith the marks left on my hand during our confrontation.

Please give me your opinion on this issue. I know I am suspending the student with a recommendation to expel. Does this situation also apply using I.C., dealing with threatening a teacher? Can you also cite the Indiana Code and numbers for me?

Response: The relevant statute reads: IC 20-33-9-10 Duty to report threat Sec. 10. In addition to any other duty to report arising under this article, an individual who has reason to believe that a school employee: (1) has received a threat; (2) is the victim of intimidation; (3) is the victim of battery; or (4) is the victim of harassment;

1 shall report that information as required by this chapter. As added by P.L.1-2005, SEC.17. Amended by P.L.72-2006, SEC.4.

The facts that you describe may reasonably be battery if the student touched the teacher in a rude, insolent, or angry manner (e.g., shoving the desk against her). See IC 35-42-2-1. I do not see it as either a threat or criminal intimidation (i.e., the communication of a threat of injury). See IC 35- 45-2-1. Lastly, I believe the behavior would be considered harassment (IC 35-45-2-2), i.e., harassing, annoying, or alarming with no intent of legitimate communication. Therefore, you are best advised to report the conduct to law enforcement.

Issue: We have student whose parents are preventing her from receiving the required immunizations. She is a 9th grader and was home schooled until now. What can we do?

Response: The statement of a child's immunization history has to be submitted to the school, even if the parent files a valid religious objection under IC 20-34-3-2, and even if the history statement indicates that there have been no immunizations. IC 20-34-4-5(e). A child is prohibited from attending school beyond the first day, unless the 20-day waiver is given. Of course, if no immunization history statement is submitted after the close of the 20-day waiver period, the child is not permitted to attend. The only enforcement provision in this statute states that the department of health may issue an order of compliance which is subject to judicial review. IC 20- 34-4-5(d).

The school's decision to prohibit attendance of the child is neither a suspension nor an expulsion under IC 20-33-8-7(b)(3) and IC 20-33-8-3(b)(3), respectively. Hence, no due process is required.

If you prohibit attendance because the State of Indiana is requiring you to do such, this could lead to such issues as educational neglect and failure to educate if the child does not receive instruction in the English language equivalent to that of the public schools. See IC 20-33-2 (Compulsory School Attendance Law).

It could also mean that you would have to treat this in the same manner as an ill student who is allowed to complete assignments at home and have them graded by the teacher while being counted as absent. However, the statute is silent and unclear on this issue and there is no clear direction on this point in my view. If a school would be required to do such, it would significantly drive down the school's attendance rate. It seems implausible that on one hand the state compels education and on the other prohibits a child from attending if the parents do not submit the immunization history statement. It seems more implausible that the state would then mean to punish a school's attendance rates by making the school count such a student absent in this circumstance. The more logical view would be to report the non-complying parent to the prosecutor for failure to ensure education of the child if the parents do not provide you with information that the child is receiving equivalent instruction.

Issue: I have been instructed to ask you about School Corporation liability and responsibility related to sending out notices to parents about events and services.

We are asked many times per week to approve fliers to be sent home to students and some to staff. Our procedure has been to review the information and judge if it complies with our Board policy. We review it in terms of whether it is: a not for profit service or event; educational benefit; community event; commercial enterprise

We also send out information to the sponsor as to how the fliers need to be delivered and

2 packaged to the schools involved. Some previous requests include:

The United Way XXX Incorporated XXX University Eugene V. Debs poster contest XXX Community Center Various sports events such as Little League, Boys Club, Basketball and Football programs, YMCA, YWCA, XXX College, Free Reading and Math Tutoring XXX Tabernacle Church XXX Church Cheer leading program Yoga

As you can see, there is a great variety of notices that go out to the students and staff. We either give "Full approval" meaning that we will send home notices to each child provided that they are packaged right and the sponsor provides enough, or "limited approval" meaning that we will put out a quantity in an area designated for community hand-outs or perhaps in the faculty lounge. Limited approval is for something that has benefits to our students or staff but may have some kind of reservation such as being a '"or profit" service or something that might be of questionable benefit. Obviously, some subjective judgments are used.

Recently, we have been approached by a variety of community groups to announce the availability of tutoring after school by not-for-profit agencies and in some cases tutoring for profit. We do not "investigate" these agencies or individuals and the question of having criminal history checks or liability for damage should a student be injured or assaulted while participating with one of these agencies. This would involve much in the way of man hours in that we could not possibly check out the great many agencies that send out fliers each year. Little League and Youth Football are just a couple of agencies that have hundreds of volunteers. I would like your opinion on this matter. Do we need to insist on a disclaimer for every flier advertising services and events even though the event or service is not offered through our School Corporation.

Response: It is most advisable, and very wise, to have the entity place a disclaimer on each piece of literature that is distributed by your school system. Have school attorney XXX approve the final language, but I suggest that at a minimum it contain:

1. The material and/or activity is neither sponsored, promoted, or endorsed by Vigo County School Corporation; and 2. The sponsoring organization agrees that the Vigo County School Corporation, as well as its individual school board members, administrators, teachers, and other employees, will be held harmless by the sponsoring organization for any liability, cost, damage, and attorney fees that result directly or indirectly from the material contained in the distributed literature and from the programs conducted by the sponsoring organization.

Issue: Our administrative guidelines state that "Credit will be given for work missed due to out- of-school suspension provided the student completes and submits all required assignments upon return to school." However, the student handbook states that we will not accept work during OSS. Which do we follow and is it legal to "penalize" by having the student out-of-school and not accepting homework?

3 Response: I am concerned that your administrative guidelines are in conflict with the board policy expressed in the board approved Student Handbooks. The Handbook would take legal priority because it is necessary to have board approval of your discipline rules and most schools have the board approve the entire handbook. So, my advice is to follow the handbook and not the guidelines which contradict the handbook.

As to the legality of giving zeroes for work missed during an OSS, Indiana does not have a court ruling on point, but Illinois and Mississippi courts have ruled that there is no violation of substantive due process as long as the zeroes do not have a substantial bearing on the semester final grade that goes on transcript. The Mississippi school district had as part of its policy that if the work missed is a grading period or semester exam, the suspended student is allowed to take it.

The Mississippi Supreme Court approved of this policy provision and I recommend it to you so that it would be most unlikely that a missed assignment or quiz grade would have a substantially negative bearing on the semester grade so as to violate the 14th Amendment Due Process clause. (And, if the student is not in high school, there would be no transcript to worry about for colleges, employers, or the military to see and to perhaps exclude based on too low of a grade caused by the zero on the day of the OSS.)

Based on the reasoning of the Mississippi Court, I have opined that an Indiana school is in a legally defensible position to give zeroes for work missed during an OSS, provided there is no substantial impact on the semester grade of a high school student that would be forever recorded in the transcript.

Issue: Previously before this incident occurred, I fielded a call at home and the principal fielded a call at school from parents who asked if their daughters could have pink in their hair. The response from both of us was, “is there another way that the girls could show support for breast cancer awareness”. Several options were given to them. The parents agreed and their daughters did not come to school with pink in their hair.

XXX Middle School had two girls show up at school on Tuesday October 7, 2008 with a pink strip colored in their hair. In the student handbook the language concerning this issue reads; while fashion changes, the reason for being in School do not. Students are in school to learn. Any fashion (dress, accessory, or hairstyle) that disrupts the educational process or presents a safety risk will not be permitted. Personal expression is permitted within these general guidelines. The handbook goes on to give details and examples. Nowhere is hair style mentioned again within the handbook.

Before any options were presented to the girls, the principal asked the girls, did you think that you were going to get into trouble by doing this? Their response was, “yes”. At any rate, the girls were given a choice at that time to either wash out the pink, cover it up so pink would not be shown, or call and go home. The girls’ chose to go home. It may be important to know that the girls’ were never told that they were being suspended.

The next day the girls’ did not come to school but several others did. Some of the students had the same hair style as the girls from the previous day. Others painted their hair in bathrooms at school and still others painted it on the bus. It caused quite a disruption at school. After a lengthy investigation, it was determined that several text messages were sent out to the students of NWMS. One of the original two girls who wore the pink in their hair’s sister sent a text encouraging student to wear pink in their hair the next day to support her sister. Obscenities and defiance were mentioned in the text message.

My real question is about the original first two girls who wore pink in their hair here to school and were asked before all of this happened if they would be in trouble. Would the school be protected under Tinker? Was I on high enough ground to give the girls the options that I originally did? Or, do I have to wait and see if indeed by wearing pink in their hair for whatever reason was going to cause a problem later and then act if need be? Do I have discretion to foresee a problem by the girls wearing pink in the hair? This is the first time that this has been an issue at the school. Thanks for any advice or insight that you have concerning this issue.

Response: I think your policy “does you in” on the first two girls due to its management- restrictive language. The high-level burden placed on administration by the policy is disruption of the educational process or a safety risk. A pink streak in one’s hair most likely does not meet the more burdensome Tinker case standard of a reasonable forecast of substantial disruption. I see no legal basis for giving the girls the option to go home. (The first two options were good ones, but there was no legal authority to support what I believe a court would rule was in effect a suspension from school without due process. It would be wise in my view to allow complete make up for work missed so there is no burden on grades due to the missed time, alone.)

If it weren’t for the restrictive language, I would have been satisfied with you and the principal giving the two girls an oral directive not to wear pink, but without any evidence of a forecast of substantial disruption that I can see, the policy would trump the directive. However, if you have had another incident in the prior several years of unnatural colored hair having caused a substantial disruption, you would have a defensible legal argument in disallowing it for the first two girls, and then their disobedience would be the basis for a suspension from school if the minimal suspension due process was followed, including a letter home to the parents under Indiana Code.

The school district may want to re-think the policy language so that expression is separated from dress, fashion, and hairstyle. For example, under a dress code, the board has the authority, based on community standards, to simply prohibit unnatural colored hair. The legal authority for this is the Caston Indiana Court of Appeals ruling upholding the prohibition against male students wearing earrings. The school only had to meet the lower burden of proving a reasonable basis for the dress code and community standards was such.

Issue: XXX is a building with grades 7-12. For grade 7 & 8, we have a Promotion/Retention policy that has been in effect for three years. This past spring a male student had not met the Promotion/Retention policy benchmarks and we informed him and his parents that he would be retained in 8th grade for the 2008-2009 school year.

He then became a tuition transfer student at a public high school in the area where he enrolled as a 9th grade student. After attending the other school for nine weeks, his family has re-enrolled him in our school. It is my opinion that I must enroll him as a 9th grade student; is that correct? Are there any other options?

Response: Amazing what parents will do. I know of no legal authority that would come to the aid of the parents in their argument that you enroll him as a ninth grader. Your assessment of him was that he was not to be promoted to ninth grade. You have the authority from case law that schools, not judges, are in the best position to judge academic fitness. You judgment remains the same and the fact that he spent nine weeks as a ninth grader somewhere else is not sufficient to overcome your academic judgment that he did not qualify to be promoted. Therefore, in my opinion, you may enroll him as an eighth grader.

Issue: We have had a situation w/ a cell phone at school that I am not sure how to pursue. In a nutshell, some juniors in an English class were doing presentations. One of the presentations had another teacher in the building as part of this "skit." The presentation was fine, but a student took video of it on her phone. She then put it on her "my space" page (not in a malicious way), and she even "invited" the 2 teachers to view it. The 2 teachers involved are upset b/c this was done w/o their permission. I know I can discipline this student for violating our "no cell phones on at school between 7:55 A.M. and 3:00 P.M." rule, but I don't know if there is anything else that can be pursued. I don't want to make a huge deal out of something that was not meant to be malicious, but I do want to be able to tell this student what could have happened if the teachers decided to pursue this. Could you give me some direction?

Response: Under your present set of rules, you may only discipline the student for possession and use of the cell phone during school hours. There was no unconstitutional invasion of privacy because the skit was performed in front of others and, hence, not private.

Every teacher and student should presume that everything that is said or done in front of others is being recorded.

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Situation Briefs

Issue: Our school district has implemented a new web site. In the opening page, there is a scrolling banner of generic pictures. Our district would like to put pictures of our actual students, without names, as part of this district home page. Additionally, various schools want to place students’ pictures and/or names on their school’s respective website. Many are like what are submitted to the local newspaper (i.e., sports teams, academic teams, classroom accomplishments/activities, etc.) which include the picture and the names of those in the picture. Some of the schools want to just have the pictures without the names.

Some of our buildings have a generic release signed by the parents. Some schools do not have one yet. We do not have a district release. Our school’s generic release is as follows:

Photograph Permission … We would like to let you and others, especially the people in our community, see and hear what is happening in the classrooms and throughout our school. We plan to take photographs, recordings, and/or videotape of students and their participation in academic and/or extracurricular activities and experiences during the time they are a student at ABC Elementary School. These photographs and/or names may be used in areas such as: the school’s yearbook, brochures, news letter, our web page, and area newspapers. The videotape would be taken for our school activities such as: student productions, school promotions, and public presentations. There are no royalties for any pictures, video, etc.

I give permission for my child, named on this form, to be photographed, video-taped, and/or recorded during the time he/she is a student at ABC Elementary School for the purposes described above.

Signature of Legal Guardian: ______

Do we need a district release form? Is this one for ABC Elementary School sufficient? Is there a standard release form that we should be using instead, etc.?

1 Response: Only if: (1) your building followed FERPA’s notice to parents requirements, (2) the notice contained a definition of “directory information,” (3) the directory information definition contained the term “photograph” (or something similar, such as “picture”), (4) the notice gave the parent deadline date to opt out of any or all aspects of the directory information definition, and (5) the parent of the child whose photograph you want to use did not respond by the deadline saying that you could not use photographs, would you be able to use the photograph without gaining the parent’s written consent.

However, if any one of the five listed elements did not occur, then you would need to obtain the parent’s written consent to use a photograph in the manner that you described. This is where your buildings permission form would come in. Other than needing a date for the signature, I have no problem with your form. A district permission (consent) form that will be used in each building is a good idea from the standpoint of uniformity.

Issue: Can a teacher require that students stand for the pledge? I understand that the teacher cannot force anyone to recite the pledge, but can the student be required to stand out of respect while the others are. A student who didn’t stand today, only to cause trouble, not for any personal conviction, etc., but I gave him a five minute detention for that. Am I out of line?

Response: The relevant Indiana statute reads:

IC 20-30-5-0.5 Display of United States flag; Pledge of Allegiance Sec. 0.5. (a) The United States flag shall be displayed in each classroom of every school in a school corporation. (b) The governing body of each school corporation shall provide a daily opportunity for students of the school corporation to voluntarily recite the Pledge of Allegiance in each classroom or on school grounds. A student is exempt from participation in the Pledge of Allegiance and may not be required to participate in the Pledge of Allegiance if: (1) the student chooses to not participate; or (2) the student's parent chooses to have the student not participate. As added by P.L.78-2005, SEC.5.

My interpretation is that a teacher may not require the student to stand and may not discipline the student if the student refuses to follow the directive to stand. The bases for my view is that: (1) the Pledge ceremony is for the purpose of giving students “a daily opportunity to voluntarily recite the Pledge”; (2) the student is expressly exempted from “participation” in the Pledge; (3) standing is participation; and (4) the student cannot be required to participate if either the student or parent “chooses” not to participate.

Secondly, courts across the country, including the U.S. Supreme Court in the 1943 Barnette case, have ruled that a student’s refusal to participate is protected speech under the First Amendment.

Lastly, if the student’s detention was not due to a disruption caused by the teacher trying to make the student stand (i.e., the disruption was caused by the student telling the teacher to “Go to h…”), then the discipline would be valid because it would not have been to punish the student for refusing to participate in the Pledge by standing.

Issue: We want to be able to monitor student activity on MySpace (and probably Face Book) with regard to catching potential problems before they occur. We are wondering several things:

2 Issue A: Is it lawful for the administrator to use deceit to be able to log onto accounts that are normally open only to students? (By deceit, I mean creating a fictitious person that fits the description of a student but that is monitored by an adult.)

Response to A: The administrator’s use of a fictitious student to obtain entry to a computer system is generally misleading and false, but I do not see it as a crime under Indiana criminal law. (I do not have the time to review federal criminal law in this matter.) I am not a criminal law expert, but I did review IC 35-43-5 that contains the Indiana criminal laws related to forgery, fraud, and other deceptions. I could not find one that applied to the situation you described. I also reviewed computer related crimes at IC 35-43-1-4 and IC 35-43-2-3 and did not consider your described scenario falling within either of them (although it comes close to violating the latter, Computer Trespass). However, the administrator’s accessing MySpace under the name of a student that does not exist would not be criminal in my view because using a false/fictional name to obtain the computer system owner’s consent for entry would still mean that you obtained the consent. (It’s only a crime under IC 35-43-2-3 to gain entry without the system owner’s consent.) [Also, the “deceit” might violate the MySpace agreement that you sent, but my role as an ISBA consultant does not include an examination of every word and possibility in the 13-page-single- spaced agreement. Any violation would likely mean that you, as the fictitious person, would be prohibited from further use. It is somewhat doubtful that MySpace would prosecute you for any criminal violation of the agreement. Lastly, I do not think you would violate section 8.24 because you would not actually be “impersonating another person” since a fictitious “something or other is” not a living, breathing “person.”]

Issue B: If the school gains information from our monitoring of MySpace activity and use it to uncover a problem in the school, can we use that information to punish a student?

Response to B: Assuming for purposes of this answer that there is an expectation of privacy in what the student has placed on a presumably private MySpace account, only if the school has not violated the Fourth Amendment prohibition against unreasonable searches and seizures could you legally use the information gained to discipline the student. Under the T.L.O. case standard, public school officials must have reasonable suspicion of wrong-doing related to school rules to begin a search.

However, there may not be a realistic expectation of privacy if, for example, a student who had been given the password to another student’s private account placed material therein regarding, for example, a clear, real threat to bomb the school when it was in session. The reason a court might find that there was no expectation of privacy is that the student in question could reasonably foresee that other students with access to the private account could give the school administrator a copy of the material or the password to get into the account and read it. If there is no expectation of privacy, then there would be no Fourth Amendment issue when the administrator searched for the material.

Issue C: Would it be better if law enforcement handled this and then informed us if there were a potential problem?

Response to C: It would be less hassle and less potential legal issues for the school if law enforcement was willing to investigate. However, they would have to have probable cause to believe a crime had been committed in order to begin the process, which would likely include the obtaining of a search warrant.

3 Issue: We are installing a new security system in our new Middle School with cameras in the hallways. We found out the cameras also have audio as well. My question is would this be in any way a violation of "rights to privacy" by having the audio capabilities?

Response: Assuming that the device could pick up a normal conversation between two students, and assuming that the students are not aware that they could be heard, I could see a court finding that an expectation of privacy existed, and that there would have had to have been a reasonable suspicion of wrongdoing before making the recording.

To remove this factor from a court’s consideration, make sure that all students, parents, and visitors are clearly made aware that their voices, as well as images, are being recorded. This could be done by posting notices on entry doors and walls and placing it in the student handbook. In my opinion, this would take away any argument that the Fourth Amendment was violated due to there being no expectation of privacy once there is knowledge that voices can be recorded and understood, if, in fact, this is the case. (I also recommend that all staff members receive written notice as well.)

Issue: One of our students received a recording pen for Christmas and has attempted to use it in the classroom for taking notes. Two teachers have refused to allow the student to record classroom instruction while taking notes. What is the legal status of the 'no expectation of privacy' in a school classroom? I believe the device is called a Pulse Smartpen by Livescribe.

Response: Although a teacher has no "expectation of privacy" in the instructional workplace environment, neither does a student have a right to record. In my opinion, a school may regulate the use of audio and video recording devices in the classroom, including complete denial of such use. There is a rational basis for doing such, including encouragement of student participation in class discussions. If it is known that discussions are being recorded, many students will be inhibited for fear of making a mistake or sounding "stupid."

Absent the principal's or your directive, as superintendent to allow recording devices, or that of the school board by policy, a teacher may reasonably prohibit such. If the student refuses to comply, then there is a rule violation under your discipline rules as long as they prohibit following the directions of a teacher or other staff member.

Issue: If a student is incarcerated and misses six weeks of a nine-week grading period, are we able to give that student an 'I' for an incomplete and make them take that course over?

Response: Independent of the overall issue of whether your school had the legal duty to educate the child with a "jailbound" (my term) instructor under the Compulsory Attendance Law (or some other means), it is clear that the student did not receive credit for the courses during your grading period. I am unfamiliar with the use of the term "incomplete" at the secondary school level. There is nothing in statute or regulation. Courts and most schools that I have dealt with use the term "No Credit" or "NC." To me, it means the same. I suppose you could use either term, but I like the latter one because it gives finality and does not impact the GPA because no grade was given and no grade is being kept in abeyance until the "incomplete" is made up.

Issue: If a student changed his grades in a grade book, can we fail the student for the entire course, or do we just give them a '0' for the grades they changed?

Response: I see no rational basis for failing the student (or giving a zero). Under 14th Amendment substantive due process, grades must accurately measure effort, and if the correct

4 grade was genuinely earned, I do not see how a school could legally put a permanent grade on a transcript that does not accurately reflect achievement. (This is not like cheating on a test or paper where a lower grade would reflect a lack of academic effort.) In my opinion, you only have your discipline rules to deal with this student.

Issue: May a student be lawfully arrested for possession of a knife (that was not a switchblade or propellable) at school or on the bus in a situation where the student merely showed the knife to another student without any threat being made whatsoever.

Response: Although I am not a criminal law expert, and I could be missing something from the Criminal Code, but it is my understanding that the situation you describe would not constitute an arrestable offense. Relevant statutes are (with my emphasis in bold print):

IC 35-33-1-5. Definition Sec. 5. Arrest is the taking of a person into custody, that he may be held to answer for a crime.

IC 35-33-1-1. Law enforcement officer Sec. 1. (a) A law enforcement officer may arrest a person when the officer has: (1) a warrant commanding that the person be arrested; (2) probable cause to believe the person has committed or attempted to commit, or is committing or attempting to commit, a felony; (3) probable cause to believe the person has violated the provisions of IC 9-26-1-1(1), IC 9- 26-1-1(2), IC 9-26-1-2(1), IC 9-26-1-2(2), IC 9-26-1-3, IC 9-26-1-4, or IC 9-30-5; (4) probable cause to believe the person is committing or attempting to commit a misdemeanor in the officer's presence; (5) probable cause to believe the person has committed a: (A) battery resulting in bodily injury under IC 35-42-2-1; or (B) domestic battery under IC 35-42-2-1.3. * * * *[Remainder omitted due to lack of relevancy to the issue.]

IC 35-33-1-4. Any person Sec. 4. (a) Any person may arrest any other person if: (1) the other person committed a felony in his presence; (2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or (3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace. (b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer. (c) The law enforcement officer may process the arrested person as if the officer had arrested him. The officer who receives or processes a person arrested by another under this section is not liable for false arrest or false imprisonment.

IC 35-47-5-2. Knife with blade that opens automatically or may be propelled Sec. 2. It is a Class B misdemeanor for a person to manufacture, possess, display, offer, sell, lend, give away, or purchase any knife with a blade that: (1) opens automatically; or (2) may be propelled; by hand pressure applied to a button, device containing gas, spring, or other device in the handle

5 of the knife.

IC 35-47-5-2.5. Possession of a knife on school property Sec. 2.5. (a) As used in this section, "knife" means an instrument that: (1) consists of a sharp edged or sharp pointed blade capable of inflicting cutting, stabbing, or tearing wounds; and (2) is intended to be used as a weapon. (b) The term includes a dagger, dirk, poniard, stiletto, switchblade knife, or gravity knife. (c) A person who recklessly, knowingly, or intentionally possesses a knife on: (1) school property (as defined in IC 35-41-1-24.7); (2) a school bus (as defined in IC 20-27-2-8); or (3) a special purpose bus (as defined in IC 20-27-2-10); commits a Class B misdemeanor. However, the offense is a Class A misdemeanor if the person has a previous unrelated conviction under this section and a Class D felony if the offense results in bodily injury or serious bodily injury to another person. (d) This section does not apply to a person who possesses a knife: (1) if: (A) the knife is provided to the person by the school corporation or possession of the knife is authorized by the school corporation; and (B) the person uses the knife for a purpose authorized by the school corporation; or (2) if the knife is secured in a motor vehicle.

The basis for my conclusion is that the possession of a knife at school or on a bus is not a felony, misdemeanor, or a breach of the peace. Since no crime has been committed, there cannot be a valid “arrest” as defined at IC 35-33-1-5. The reason that there is no violation of IC 35-47-5-2.5 (possession of knife on school property) is that under the definition contained in that statute it is only a “knife” if there is evidence that it was “intended to be used as a weapon.” Under your facts, the student who possessed the object that we normally understand to be a knife was only showing it to another student without any threatening connotations. Therefore, it was not a legal “knife” as defined by said statute. Neither was it a switchblade or propellable knife. Therefore, since there is no evidence that a crime of any kind was committed by the student, there could have been no valid arrest of the student.

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Situation Briefs

Issue: A first-grade student brought a gas-powered (CO2) pellet gun to school loaded with eight pellets, supposedly to show a friend. Does the principal have to begin a three-semester expulsion process against him followed by an expulsion before the superintendent, pursuant to IC 20-33-8- 16, can modify the length of the expulsion?

Response: The answer depends on whether the pellet gun is a “firearm” as defined at IC 35-47- 1-5. If it is, there must first be a three-semester expulsion followed by the superintendent’s modification, if any. However, that expulsion could be agreed to and the expulsion process waived by the parent and student before the principal files the charge.

Secondly, the statutory definition of “firearm” reads (writer’s emphasis):

IC 35-47-1-5 "Firearm" means any weapon: (1) that is: (A) capable of expelling; or (B) designed to expel; or (2) that may readily be converted to expel; a projectile by means of an explosion. As added by P.L.311-1983, SEC.32. Amended by P.L.3-2008, SEC.254.

This begs the question of what is an “explosion,” a term that is not defined in the criminal statute. In ordinary terms, a home is deemed to have exploded when it is filled with natural gas and ignited. Did the Indiana legislature intend that a “firearm” includes a weapon that (1) expels a pellet (or BB for that matter) by means of a force derived from CO2, or (2) a force derived from compressed air? Would an air-compressor-powered nail driver used to build a home within 50 feet of school property be deemed a “firearm” by the legislature? (For that matter, such nail drivers may have been used on school property to build press box or bus garage.)

Or, did the legislature mean that an “explosion” must be related to a device where a form of burning occurs that is part of the explosion? For example, in the home-natural-gas-explosion illustration given above, there was, in effect, a burning. Likewise, if gunpowder is used in a device to expel a projectile, the compression caused by the striking of a pin results in the ignition

or burning of the gunpowder. However, there would not be a burning in the release of CO2 or naturally compressed air.

Lastly, one Indiana Court of Appeals case is instructive, Miller v. State, 616 N.E.2d 750 (Ind.App. 1993), where the court, following the word “explosion” taken from the above-stated definition of “firearm,” inserts footnote 9, which reads as follows from page 754:

9. This definition is almost a direct quote of I.C. 35-47-1-5. A more technically accurate definition of a firearm is “[a]n instrument used in the propulsion of shot, shell, or bullets by the action of gunpowder exploded within it. A weapon which acts by force of gunpowder.” Black’s Law Dictionary (4th ed. 1968).

Based on the above, it is this writer’s opinion that a natural air-powered, or CO2 powered pellet or BB gun, is not a “firearm” within the criminal law definition. Hence, if brought to school, the Student Discipline Law at IC 20-33-8-16 does not require the student to be expelled for three semesters. (It would be deemed a “deadly weapon,” since it is a device capable of causing serious bodily injury for which a school may expel for up to one calendar year, or suspend, or use its discretion to take other reasonable disciplinary action depending on the facts, including the age of the child.)

Issue: What process do I need to do to terminate a bus driver? She took a bus load of students from the high school to a swim meet. The students were picked up around 4 or 4:15. The bus driver went to the mall after dropping the students off (probably around 4:30). The transportation director heard the coach tell the bus driver to return by 7:50 – no later than 8. At 8:15 the transportation director called the bus driver. She said she was sick and that another driver was coming to pick them up.

We had her come to the office the next Monday to ask her again to tell us what happened. She said after dropping the kids off, she went to the mall – she got sick and couldn’t pick up the kids – so she had another driver pick them up. We asked her to clarify this. (She lives with another bus driver – who was actually the one who drove her bus.) We asked her– if she was sick, how did she get home if he took your bus? She claimed that he took the kids back and then came back to the mall to pick her up, and then went to the bus barn to get her car to take her home.

It came out in the paper yesterday that she was arrested for shoplifting at the mall on the date she had dropped the kids off at the swim meet and did not pick them up. From the arrest report, she was taken into custody.

1. She lied to the transportation director on the phone. 2. She lied to us when we asked her for clarification on Monday. 3. She lied to us when we questioned her about the incident in the paper. 4. She was “on the clock” (I checked her time sheet) and was unable to fulfill her duties because she was arrested – while she was acting as an employee of the school system. Can I terminate her? I gave her a chance to retire (she’s 65) but did not take it.

Response: I am going to assume, but please check my assumptions out, that: (1) the driver is an employee of your school system and not an independent contractor; (2) she is employed on the state contract form (1995) for employee drivers that states (para. no. 15) that the driver may be terminated by the school board without notice and without a hearing for failure to comply with the contract, including terms incorporated by reference, which in para. no. 7 is all state law regarding transportation, which includes IC 20-27-8-1(1) that the driver must be of good moral

character; (3) there is no school board policy requiring you to go through certain hoops; and (4) there is no employee handbook applicable to terminating an employee bus driver.

If my assumptions are correct, then administratively, you could suspend the driver with or without pay (per para. no. 15) pending the school board’s termination of her employment for bad moral character (lying), and once the school board had voted, she would be terminated effective immediately. Any vested vacation days would have to be converted to pay and included in her last paycheck under the Wage Payment Statute. (For additional causes to terminate, check board policies that the driver may have violated, because para. no. 13 of the state contract incorporates these policies into the contract as well.)

Issue: A substantial number of parents, who are upset at discussions in our school corporation to internally redistrict, are threatening to “cash-transfer” their children to another school corporation. Can a neighboring school corporation accept those transfers without our consent?

Response: Yes, this has always been the case under the Legal Settlement/Transfer Tuition Law at IC 20-26-11-6. It states (my emphasis):

(a) A school corporation may accept a transferring student without approval of the transferor corporation under section 5 of this chapter. (b) A transfer may not be accepted unless the requesting parents or student pays transfer tuition in an amount determined under the formula established in section 13 of this chapter for the payment of transfer tuition by a transferor school corporation. However, the transferee school may not offset the amounts described in section 13(b) STEP TWO (B) through section 13(b) STEP TWO (D) of this chapter from the amount charged to the requesting parents or student. (c) The tuition determined under subsection (b) must be paid by the parents or the student before the end of the school year in installments as determined by the transferee corporation. (d) Failure to pay a tuition installment is a ground for exclusion from school. As added by P.L.1-2005, SEC.10.

The school that accepts cash transfer students is legally obligated to charge the tuition computed by use of the formula in IC 20-26-11-13. However, on January 1, 2009, the amount will be substantially less due to the state having nullified school general fund property taxes.

Issue: Several parents called complaining that their children at my elementary building were having their pictures taken at school by a child using a cell phone, and then the picture taker was sending the pictures to other students with cell phones. I took the picture taker’s phone, searched it, and found a number of pictures that the child took of others in the hallways, lunch room, and playground. These upset parents stated that the picture taking was illegal Are they correct?

Response: I know of nothing illegal about a child taking pictures of other children at school in such settings. The only potential illegal action was a violation of the Fourth Amendment by your searching the contents of the phone without a reasonable suspicion to believe that the phone contained information regarding a violation of federal or state laws or school rules. Your only hope should you be sued for an illegal search is that one parent apparently said that some pictures were taken in the restroom. This is a pretty general statement from the and there are no specifics regarding a breach of personal privacy rights. Had the parent reported that the child was photographed while using the urinal or toilet, there may have been a sufficient basis for a potential criminal law violation to search the phone. Otherwise, I am not sure a court would rule that you had a reasonable belief that the phone contained evidence of a legal violation.

Issue: What is “the law” regarding parent/student rights to keep attending our school tuition free when the family has moved out of our school system?

Response: The statute at issue is the Legal Settlement Law at IC 20-26-11-1(8) which reads (my emphasis): (8) If a student's legal settlement is changed after the student has begun attending school in a school corporation in any school year, the effective date of change may: (A) at the election of: (i) the parent; (ii) the student, if the student is at least eighteen (18) years of age; or (iii) a juvenile court conducting a proceeding under IC 31-34-20-5, IC 31-34-21-10, IC 31-37-19-26, or IC 31-37-20-6 (or IC 31-6-4-18.5 before its repeal); be extended until the end of that semester; or (B) at the discretion of the school, until the end of that school year. However, that election, where a student has completed grade 11 in any school year, shall extend to the end of the following school year in grade 12.

Therefore, if the “change” (in legal settlement) occurs during the first semester, the parent (or at least 18-year-old student) may “elect” to stay until the end of the first semester only, and the school may allow the student to attend tuition free until the end of the school year. If the “change” occurs during the second semester, the “election” allows the parent or 18-year old student to stay until the end of that semester, but there is no authority to permit the school to continue the tuition-free education beyond that point. Lastly, if the “change” (in legal settlement) occurs after the student has completed the eleventh grade (i.e., the parent has moved the parent’s residence out of the school corporation following the last student day of school in grade 11), the “election” to stay tuition free for the entire senior year can be made.

Issue: We are a 6-7-8 middle school and we have reasons (as all schools do) to occasionally hold students after school for detentions. We have been having trouble over the past couple of years with parents refusing to pick up their children. I have sent letters home notifying the parents that the school has a legal right to hold students after school and it is the parents’ responsibility to pick them up and transport them home. In the past, we have contacted the Sheriff’s Department and they have taken the student home and had a talk with the parent. The sheriff has just told me that they will no longer provide this service. My questions are: What is the school’s obligation in this matter? Do we have to provide supervision after school when students are not picked up? (I had a teacher stay for 2 ½ hours waiting for a parent last night.) Finally, can we discipline the child for the actions of the parent? (I have a strong ethical concern with giving the student more disciplinary consequences when it was something they have no control over.)

Response: The general common law negligence rule in Indiana is that in order to be liable for injury to a child, the school must have a legal duty of care that is owed to the child in that particular situation. For example, courts in other states have ruled that there is no legal duty of care owed to children waiting at the bus stop in the morning before the bus arrives. Similarly, after the bus at the end of the school day drops a child off and safely departs, the legal duty of care no longer exists for that day.

There is no case law that comes to mind regarding your issue of when that legal duty of care ends when students remain on school property following the serving of a detention after regular school hours. (The issue also exists in situation where a team returns to a school late at night after an away game, or students do not have a way home after a dance at the school.)

Under the general rule enunciated above regarding when the legal duty of care begins, a legitimate argument can be made that if the school gives notice to the parents stating clearly when the school’s legal duty of care ends upon the conclusion of the particular school function (which should include an express statement of when the parent’s legal duty begins), a court should dismiss the negligence case before it goes to trial because the school owed no legal duty to the child once the clearly stated time came for the parent to assume the parent’s legal duty of care.

Unfortunately, I know of no Indiana court that has ruled on this issue. What I do think, however, is that if the judge would rule that the school still had the legal duty of care to supervise the children beyond the time stated in the notice to the parent, then the case would go to the jury, which, due to the emotions involved with a child’s injury, would likely rule that the school’s lack of supervision caused the injury to the child.

I cannot say with any degree of certainty that a court would determine that the school did not have a continuing legal duty beyond the prescribed time, once having assumed the duty originally. In other words, it is reasonable to conclude that a court could very rule that a school cannot end its duty, once it began.

Because of this, it is wise to come up with a plan that would place you in the position of having used reasonable care, like you did when the sheriff’s department took the children home. I recommend that you consider charging the parents a reasonable fee based on the time that a staff member spends on supervising the child beyond the stated end time of the event. For example, so many cents per minute. The parent would then be sent a bill based on the staff member’s stated number of minutes that the parent was late. It could be enforce by a small claims action if not paid after attempts to collect have failed. Such a charge in my opinion would be valid, and, thus, would not be an illegal tuition charge, nor would it be a penalty or a fine. (See, for example, IC 20-26-5-2(b) that allows schools to charge parents a fee for “school personnel” used in the latch key program.)

Once dollars become an issue, the Teachers Association will likely want to bargain a compensation amount when their members have to wait on the parent. Therefore, you could base the charge on your costs of paying the teacher or coach, including additional social security and TRF.

Lastly, you may want to consider going even further by conditioning the child’s participation in all school events, functions, and activities on the parent signing a specific document agreeing to pay the determined amount of money for school-provided supervision when the parent or a designee is late in picking up the child; this could also an agreement that the parent would pay the school’s costs of collecting the fee through a collection agency or a court, including court costs and attorney fees.

Issue: I did not think that classroom teachers had the power to suspend a student. Does the Student Discipline Law give the teacher the authority to suspend a student? We are an intermediate school, grades 4-5-6, and have self contained classes. So, if a child is removed from the "educational function supervised by the individual...", it would seem in essence, then, it's suspension.

Response: The removal of a student from the classroom by a teacher under IC 20-33-8-9 is not a “suspension” in that the student has not been separated from school attendance. The teacher removal statute reads (my emphasis):

Sec. 9. (a) This section applies to an individual who: (1) is a teacher or other school staff member; and (2) has students under the individual's charge. (b) An individual may take any action that is reasonably necessary to carry out or to prevent an interference with an educational function that the individual supervises. (c) Subject to rules of the governing body and the administrative staff, an individual may remove a student for a period that does not exceed five (5) school days from an educational function supervised by the individual or another individual who is a teacher or other school staff member. As added by P.L.1-2005, SEC.17.

Note that IC 20-33-8-9(c), the teacher’s removal from the classroom is subject to the rules of the school board. Many boards have adopted policy or rules that limit the number of days that the teacher may remove the child from class. Since the term “suspension” is defined at IC 20-33-8-7 as when “a student is separated from school attendance,” a teacher’s removal from the classroom, whereby the student is kept at school (with assignments to complete) in another setting, is not a suspension from school.

Issue: We have 6th grade girl who attended a local Catholic school for grades 1-5. That school is refusing to provide us with records because the parents failed to pay the tuition last year. I am questioning if this is legal.

Response: The only legal leverage that I know of is in IC 20-33-2-10, subsection (d) that is reproduced below. (Under FERPA, and assuming that the Catholic school receives some federal dollars, the parents of the child only have a right of inspection and not a right to a copy of the records; so, they could not use FERPA to demand a copy of the child’s records and then hand carry them to you, unless, of course, they want to try and see if the school is unaware of the distinction between inspection and a copy, and gives them a copy.)

IC 20-33-2-10. Enrollment documentation; notice to clearinghouse for information on missing children Sec. 10. .. (d) A school in Indiana receiving a request for records shall send the records promptly to the requesting school. However, if a request is received for records to which a notice has been attached under IC 31-36-1-5 (or IC 31-6-13-6 before its repeal), the school: (1) shall immediately notify the Indiana clearinghouse for information on missing children; (2) may not send the school records without the authorization of the clearinghouse; and (3) may not inform the requesting school that a notice under IC 31-36-1-5 (or IC 31-6-13-6 before its repeal) has been attached to the records. As added by P.L.1-2005, SEC.17.

Legal Corner

Dave Emmert General Counsel, Indiana School Boards Association

Situation Briefs

Issue: Just why exactly are “nude” cell phone pictures of fellow students unlawful and why do we have a duty to report the existence of such to law enforcement or child protective services? Also, what specific language could be added to our student handbook grounds for suspension and expulsion of students who possess or transmit such material on their cell phones at school or a school activity?

Response: Not all “nudity” is unlawful under the Indiana criminal statute pertaining to child exploitation and child pornography, I.C. 35-42-4-4. Under the definition of “sexual conduct,” in addition to intercourse and touching or fondling with intent to satisfy sexual desires, it includes the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person.” Therefore, as long as said noted items are covered, even if nothing else is, no “sexual conduct” has occurred per this definition.

The legal duty to report “child exploitation” and “child pornography” is required by the Child Abuse/Neglect Statute at I.C. 31-33-5-4, which makes it a Class B misdemeanor for a school employee to fail to make an immediate oral report to the building principal or designee, who then must immediately contact law enforcement or child services, or face the misdemeanor charge. Actually, the duty is to report a “child in need of services,” who under I.C. 31-34-1-3(a)(1)(D) is a person under the age of 18 who is a victim of “child exploitation” and/or “child pornography.”

“Child exploitation,” a Class C felony under I.C. 35-42-4-4(b), is committed when (emphasis most relevant to school situations in italics):

A person who knowingly or intentionally: (1) manages, produces, sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of any performance or incident that includes sexual conduct by a child under eighteen (18) years of age; (2) disseminates, exhibits to another person, offers to disseminate or exhibit to another person, or sends or brings into Indiana for dissemination or exhibition matter that depicts or describes sexual conduct by a child under eighteen (18) years of age….

“Child pornography,” a Class D felony under I.C. 35-42-4-4(c), is committed when (emphasis most relevant to school situations in italics):

A person who knowingly or intentionally possesses: (1) a picture; (2) a drawing; (3) a photograph; (4) a negative image; (5) undeveloped film; (6) a motion picture; (7) a videotape; (8) a digitized image; or (9) any pictorial representation; that depicts or describes sexual conduct by a child who the person knows is less than sixteen (16) years of age or who appears to be less than sixteen (16) years of age, and that lacks serious literary, artistic, political, or scientific value….

A practical example of “child exploitation” involving a cell phone would be a student of any age who used the phone to (1) take a picture, (2) show a picture, (3) send a picture, or even offer to show or send the picture of any person under the age of 18 engaged in “sexual conduct,” defined as intercourse, touching or fondling with intent to satisfy sexual desires of any person, and/or the display of uncovered genitals in such manner that evidence an intent to “satisfy or arouse the sexual desires of any person.”

A practical example of “child pornography” in connection with a cell phone would be a student of any age who used the phone to possess a picture/image of any person under the age of 16 engaged in “sexual conduct,” defined as intercourse, touching or fondling with the intent to satisfy or arouse sexual desires of any person, and/or the display of uncovered genitals so as to indicate an intent to “satisfy or arouse the sexual desires of any person.”

Sample language related to sexual content in connection with cell phone possession and use that may be considered as a ground for suspension or expulsion in the student handbook is:

Sending, sharing, viewing, or possessing pictures, text messages, emails, or other material of a sexual nature in electronic or any other form, including the contents of a cell phone or other electronic device.

Lastly, for purposes of deterrence, it is wise to place language in the student handbook to inform parents and students of the serious criminal implications involved in such activities, as well as the duty of school staff to inform law enforcement or child services of certain student violations. Even more importantly, the notice needs to state that if a student is convicted of child exploitation or adjudicated of such as a juvenile delinquent, state statute requires the student to resister as a sex offender pursuant to I.C. 35-42-4-11(a)(2)(C) and I.C. 11-8-8-7. A sample notice could read:

Important Notice to Students and Parents Regarding Cell Phone Content and Display

 The Child Abuse/Neglect Law requires school personnel to report to law enforcement or child protective services whenever there is reason to believe that any person/student is involved with “child exploitation” or “child pornography” as defined by Indiana Criminal Statutes.

 It is “child exploitation,” a Class C felony under I.C. 35-42-4-4(b), for any person/student (1) to exhibit, photograph or create a digitalized image of any incident that includes “sexual conduct” by a child under the age of 18; or (2) to disseminate, exhibit to another person, or offer to so disseminate or exhibit, matter that depicts or describes “sexual conduct” by a child under the age of 18.

 It is “child pornography,” a Class D felony under I.C. 35-42-4-4(c), for any person/student to possess a photograph, motion picture, digitalized image, or any pictorial representation that depicts or describes “sexual conduct” by a child who the person knows is less than 16 years of age or who appears less than age 16.

 “Sexual conduct” is defined by I.C. 35-42-4-4(a) to include sexual intercourse, exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person, or any fondling or touching of a child by another person or of another person by a child intended to arouse or satisfy the sexual desires of the child or other person.

 The Indiana Sex Offender Registration Statute at I.C. 11-8-8-7 and the Sex Offender Registry Offense Statute at I.C. 35-42-4-11, as of May 2009, require persons convicted of or adjudicated as a juvenile delinquent for violating the Child Exploitation Statute at I.C. 35-42-4-4(b) to register as a sex offender.

 Because student cell phones have been found in a number of Indiana school districts to have contained evidence of “sexual conduct” as defined above, it is important for parents and students to be aware of the legal consequences should this occur in our school system.

Issue: May a school administer discipline (detentions, In School Suspensions, etc…) for unexcused absences AND deduct 2% from a 9 weeks grade for each unexcused absence? If it helps, we do allow the student to make up his/her work.

Example: Student misses two days unexcused for a 9 week grading period. Therefore, student receives a Friday School (unexcused absence 1) and two Friday Schools (unexcused absent 2) PLUS 4% is deducted from final 9 wks grade for classes missed those days the student was absent.

A parent has called us on the practice described above. When the parent called DOE, they referenced Smith v. School City of Hobart.

Response: This is not a Smith v. School City of Hobart situation, but that case does teach us that basic fairness/reasonableness must be followed under the 14th Amendment’s substantive due process requirement. The Smith case does not expressly prohibit your practice in my opinion. To me the two percent deduction per unexcused absence at the end of the semester may or may not be reasonable. (In other words, it is debatable.) The Connecticut Supreme Court in the Campbell case ruled that a school’s policy, as long as it is academic in nature (i.e., not punitive), and reasonable (i.e., it was based on the concept of grades measuring effort, and when a student’s unexcused absence is based on a lack of effort, a reasonable amount may be deducted). In that case, five points were deducted for each unexcused absence where 50 points was the lowest passing score in a grading period.

I am bothered by your term “discipline” with the Friday schools, and much prefer that it be couched in terms of academic make up to take it out of the punitive implication. But, if a student

3 does the academic make up, what is the 2% deduction represent. To me, it would be more legally defensible to first go with the academic make up, and only if the student did not perform that opportunity, would 2% be used as the measurement of a lack of academic effort.

Issue: Student (A) and teacher (B) had an argument in the hall during a passing period. Other students were then talking about the argument and what it was about. A teacher overheard the students talking and told me (Assistant Principal). I spoke to some of these students about what was going on and discovered that there might be an inappropriate relationship between A and B. There was a journal that A and B were passing back and forth. I went to A’s locker and found the journal and made a copy of the journal. It did reveal an inappropriate relationship. My question regards my search of the locker. The student did not violate any school rule or criminal law. It was the teacher that was in the wrong. Was I justified in searching the locker for the journal?

Response: First, If the student is under 18 and the facts indicate a relationship where intercourse, deviate sexual conduct, or touching or fondling with the intent to gratify sexual desires has occurred, it is a mandatory reportable offense for you to immediately contact law enforcement or child services. Failure to do so is a Class B misdemeanor. Do this now before you complete reading my e-mail if the student is under age 18.

Second, I had an ISBA staff attorney check with an attorney friend who specializes in criminal law and he informed her that in the criminal context if the police have a witness that can state facts that create probable cause of criminal activity, the police can obtain a search warrant on property that is owned by an innocent person, even one who had no knowledge of the criminal activity by another person, in order to search for the evidence of that activity. Therefore, if the government (in the form of a judge and a police officer) can authorize and conduct a search of an unknowing and innocent person’s property for evidence of illegal activity by another person, the government in the form of a school administrator may conduct a search of a student’s locker if there is evidence creating a reasonable belief that the teacher and an under-18 age student were having sexual relations, even when the student is innocent of any wrongdoing. This is based on the school official having reasonable suspicion to believe that the student’s locker contained evidence of the teacher’s crime, which would be child seduction if the student is age 16 or 17, or child molestation if the student is 15 or 16.

Lastly, although state law does not require the student to be present for a locker search, many school board policies have this requirement. So, check yours. If your policy requires the student’s presence and you did not follow it, this would through a legal wrench into proverbial gears. However, I do not believe such a policy violation would cause a violation of the Fourth Amendment’s reasonable search and seizure requirements, and the evidence of criminal wrongdoing by the teacher would still be admissible in a criminal proceeding as well as a school board contract cancellation hearing.

Issue: Student brings a cell phone to school, which is confiscated by his teacher during class. The teacher places the phone in her desk. At the end of the day, she discovers that the phone has been stolen. In your opinion, who is responsible for the replacement of the phone?

Response: Under the common law of negligence, including the doctrine of respondeat superior (i.e., the employer must respond in damages for the negligent acts of its employees), the teacher in my opinion acted unreasonably in protecting the confiscated property of the student and the school would be found liable.

Issue: Could you please catch me up on the legal aspect of comments posted on MySpace and Facebook? I am an Assistant Principal and Athletic Director at ABC High School in Southern Indiana. We’ve actually suspended students before for content found or sent to us from community members concerning MySpace, i.e. drinking pictures. I personally never get on either of these websites, but people constantly are bringing me materials from them. Last night I received printouts where students are making comments about staff members, questioning grades by saying the basketball coach and I failed a student on purpose because she quit track and field, and there are pictures of the students doing some pretty inappropriate things. Should I call these students in and discuss the grade thing and educate them about the decisions they are making by posting comments for the world to read.

Response: Please see the attached “Legal Corner” article for legal background on your issue. Assuming that the students’ conduct of posting material on the Internet sites was done on their home computers, note that a public school can only discipline a student for off school conduct when it is unlawful and either interferes with school purposes/functions or to protect persons on school property. Your example of suspending students from school based on evidence from the internet of the students drinking alcohol would not likely be lawful unless the drinking was on school property or at a school-sponsored activity. This is because it is not likely that the out-of-school drinking interfered with school functions or caused danger to persons on school property. (Suspension from athletic activities for alcohol consumption at any time or any place would be upheld, but not suspensions from school, unless occurred at a school function.)

Students have First Amendment rights to criticize and even “cuss-out” their teachers and administrators over the Internet. However, there is no first Amendment right to defame or criminally threaten such persons. So, based on the few facts you gave me, the grade issue would likely be protected speech and, therefore, you would not have the legal right to take action against the speaker(s) for this expression. You could meet with them and give counsel as to potential problems that could develop in the future whereby the school could discipline them, but that would be all under the facts that you set out.

There is no case law that I have encountered on the matter of a school administrator accessing a student’s private website account. I have had the question of whether or not it is valid for a principal to pose as someone else in order to gain access to a private account. (For example, say that the principal obtains the Facebook account # or password and poses as another student who has been given permission to enter.) I had no specific advice other than to be very careful as to possible identity deception, a crime in Indiana, and therefore I did not recommend that he pose as someone else. I also told him that there may be fourth amendment search issues by doing this that would quite possibly interfere with the use of any evidence gained from such a device.

Lastly, if a student who has access to another student’s personal website account goes there, prints out material, and give it to you, then that evidence is valid because you did not violate the Fourth Amendment nor commit possible identity deception to get it.

Issue: The mother of a female student called one of our guidance counselors to report another student harassing her daughter. In that conversation, the mother mentioned that the student who was harassing her daughter had pornography on his cell phone. When the counselor called the girl in to her office to ask her about the situation, the girl stated that this student had “showed me male genitalia on his cell phone” two weeks ago. My question is whether the statement from the girl about an incident that happened two weeks ago would be considered reasonable suspicion to search the cell phone. Any insight you could provide would be appreciated.

Response: First of all, immediately call child protective services or law enforcement and make a report because you have reason to believe that child exploitation may have occurred by this incident. Second, have the female student follow the school’s policy in reporting sexual harassment to the school’s Title IX coordinator and make sure that the matter is fully investigated and you take appropriate steps to assure that the school is not deliberately indifferent to the female student’s charge of sexual harassment.

Third, and independent of the sexual harassment charge, question the boy as soon as possible regarding the girl’s statement to you. He may admit to having showed her the picture, which would negate the need for a search of the cell phone. If he denies the accusation, it is difficult to assess if the two-week delay gives you reasonable suspicion to believe that the cell phone contains the picture today. I am unaware of any case law that would uphold your search based only on such stale evidence. Therefore, I advise you to investigate only and not search the phone.

Lastly, the only way not to violate the Fourth Amendment under this set of facts would be to gain the student’s clear, voluntary consent to permit you to search the cell phone. To do this, the student (have a witness present) would have to be informed that (1) he has the right not to allow the search and (2) he may waive that right if he clearly expresses his willingness to voluntarily turn the phone over and to freely allow your search. It would be best if he signed a statement of what he was told, that he understood it, and freely consented to give the phone to you for it search.

Issue: What duty does the school have to investigate lost or stolen personal items of a student? What if these personal items are items that are not authorized at the school (i.e. cell phones and/or iPods)? We have a passage in our handbook that first says these electronic items are not authorized. We also encourage that these items not be brought to school…..we even say that we will not spend time investigating their disappearance but instead will allow them to fill out a form that will be given to the ABC School Police Department.

Response: There is no express legal duty in state statute requiring you to investigate for stolen items. However, in my opinion, there is an implied duty to investigate created by most school boards’ student discipline rules and long-standing custom and practice of investigating violations of school rules, including theft. However, if your own board’s rules clearly state that no administrative time needs to be spent investigating the disappearance of cell phones and iPods, your board has released staff from any prior custom/practice (duty) of investigation and has only required you to supply them with a form to complete for your school’s police department.

Issue: Are we required to transfer “out-of-state” accumulated sick leave days for teachers coming to our school?

Response: Not by statute. I.C. 20-28-8-9 speaks of “teacher,” which is defined at I.C. 20-18-2- 22 to mean a professional person in a “school corporation.” “School corporation” is defined at IC 20-18-2-16 as a public school established by Indiana law. Hence, a teacher who earns sick days in a nonpublic Indiana school or a public out-of-state school is not given the right to transfer in unused sick days when hired by an Indiana “school corporation.” However, if your past practice has been to award the days, or if your Master Contract is written in such a way to mean that out- of-state teachers must be given the accumulated sick days, then you would have to do it, unless you bargain the ability not to have to.

Issue: A high school art teacher has passed out PETA (People for the Ethical Treatment of Animals) pamphlets to her students. Many parents are upset that this has occurred. It doesn't

6 help that many students in this rural high school grew up hunting, fishing, and farming. Any general ideas on the rights of the teacher in this case?

Response: If the PETA information has no relationship to her art course instruction, the school corporation has the right to tell her to stop such actions. This teacher’s personal speech in the public school board's classroom is not the school's speech and, therefore, is unprotected. (Supreme Court's Garcetti case, as well as the Seventh Circuit's Mayer case, a teacher who was dismissed by Monroe County Schools.)