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Dr. Martha McCarthy
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The Ninth Circuit Court of Appeals in Renee v. Duncan recently declined to invalidate a regulation under the federal No Child Left Behind Act that allows teachers participating in alternative routes to certification (licensure) to be considered "highly qualified." Under NCLB, a highly qualified teacher "has obtained full state certification as a teacher (including certification obtained through alternative routes) or passed the state teacher licensing examination, and holds a license to teach in such state."

Some California plaintiffs alleged that they have been harmed by the challenged federal regulation because the state has allowed school districts to hire alternative route participants who are not as competent as those traditionally prepared through university programs. In California, teachers in internships receive support and training while they advance toward state certification. Plaintiffs in Renee argued that if the federal alternative route regulation were invalidated, California would stop considering participants in internship programs to be highly qualified. They also contended that alternative route teachers are hired mainly in school districts with high concentrations of low-income and minority students. 

The Ninth Circuit held that since California still could consider teachers participating in alternative licensure routes to be highly qualified even if the federal rule were struck down, a judicial declaration invalidating the NCLB regulation would not provide the redress sought. In short, since certification is a matter of state law, California could alter its definition of "highly qualified" regardless of what the federal government does.

The Renee plaintiffs claimed that California followed the federal lead in changing its requirements for licensure after NCLB was enacted and that the state would do so again if the federal regulation were dropped. But only the dissenting Ninth Circuit judge endorsed this position. He reasoned that since California modeled its definition of highly qualified on the NCLB, invalidating the federal regulation would have an impact on the hiring and assignment of teachers licensed through alternative routes in California. 

No one contests the NCLB goal of having highly qualified teachers or disagrees that teacher quality is one of the most important factors in improving the achievement of all students. The controversy focuses on how to ensure that there is a highly qualified teacher in every classroom. 

Research is not yet available to refute or support the claim that teachers licensed through alternative routes lack instructional skills and are not getting sufficient preparation in pedagogy. Those making these claims need to present data to convince policy makers that traditional certification through university preparation programs produces better teachers. In the absence of such data, alternatives to traditional licensure for teachers and school leaders will continue to be considered and likely adopted in an increasing number of states. 

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Student Expression Outside of School

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Litigation is escalating rapidly involving student out-of-school expression on the Internet. In my last column, I explored a case in which students were disciplined for suggestive pictures posted on MySpace. This column addresses students' postings on Facebook and MySpace that are critical of school personnel. The case outcomes are determined primarily by how courts apply the landmark decision, Tinker v. Des Moines Independent School District, in which the Supreme Court held that private student expression could not be the basis of school disciplinary action unless it threatened a substantial disruption of the educational process or interfered with the rights of others.

On the same day in February 2010, two different panels of the Third Circuit Court of Appeals affirmed somewhat contrary lower court decisions regarding students' MySpace parodies of their principals. In Layshock v. Hermitage School District, one Third Circuit panel ruled that a Pennsylvania school district failed to establish a sufficient connection to a school disruption for it to discipline a student who posted an unflattering mock profile of his principal on MySpace. Reasoning that schools have less control over students' off-campus expression than they do over their expression at school, the panel concluded that the student had a First Amendment right to post the parody. However, the court rejected his parents' assertion that the school's disciplinary action violated their Fourteenth Amendment rights to direct the upbringing of their children.

A different Third Circuit panel in J.S. v. Blue Mountain School District found that a student's MySpace profile of the principal, although created off campus, threatened a material disruption of the educational process. This panel held that the school did not have to substantiate that a disruption had occurred as long as there was a significant threat. The lower court had gone further in reasoning that a link to a disruption might not be required if the expression invades the rights of others. In this student's mock profile, the principal was depicted as a pedophile and sex addict. The court upheld suspension of the student for the online speech, finding no violation of the student's First Amendment rights.

The following week a Florida federal district court upheld a student's right to sue her principal for disciplinary action alleged to violate the student's free speech rights. The student established a Facebook page criticizing a teacher at school, and the court held that the principal did not have a sufficient expectation that the expression would create a disruption. In Nashville, Tenn., a First Amendment lawsuit may be brought by a student who was expelled for angry Facebook comments about his coaches, including the assertion, "I'ma kill em all." The school district contends that it has valid grounds to discipline students for such threats posted on social networks.

The controversies mentioned here represent the tip of the iceberg in this volatile area pertaining to online social networks. How much discretion school authorities have to discipline students for such off-campus postings that are critical of school personnel remains to be clarified by the U.S. Supreme Court.

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The United States Supreme Court recently delivered a significant decision in Ontario v. Quon, holding that a public employer could read employees' text messages on a government-issued pager. In this case, the city of Ontario, Calif. issued pagers to police officers, including Quon. The contract with the provider included a character limit on text messages, and the city had to pay a surcharge if any employee exceeded the monthly character allowance. The city alerted employees that it reserved the right to monitor their text messages, similar to e-mail on city computers, and that employees have no expectation of privacy or confidentiality when using city equipment.

Quon exceeded the character limit for several months, and he agreed to pay the extra fees himself. After he continued to exceed the limit for additional months, city officials decided to investigate whether the character limits should be raised to avoid employees incurring expenses for work-related text messages. The city thus contacted the pager provider and obtained transcripts of Quon's and another employee's text messages for two months in which each of them had exceeded the character limit. This revealed that most of the text messages sent and received on Quon's pager during work hours were not work-related, and some were sexually explicit. Following an investigation by the internal affairs unit, Quon was disciplined for violating the police department's rules.

Quon alleged that the city's action abridged the Fourth Amendment's prohibition against unreasonable searches. The Ninth Circuit Court of Appeals agreed with Quon, but the Supreme Court reversed, holding that the city's review of employees' text messages on a city-issued pager was constitutionally reasonable. The Court concluded that the city had a legitimate interest in assessing whether the contractual character limitation was too low. Moreover, all employees had been warned that their pagers were to be used for work purposes and that the transcripts could be reviewed. The Court concluded that the city's actions were reasonable and did not violate the Fourth Amendment.

The Supreme Court's holding is not surprising, given the circumstances of this case. However, it is noteworthy that the Court declined to establish general principles governing electronic privacy issues beyond the narrow facts of this case, voicing reluctance to set a precedent that might be difficult to apply. The Court recognized that rapid changes in the technological landscape have created uncertainty in workplace norms as well as in the law's treatment of such norms. Thus, the Court concluded that it would not be prudent to articulate broad standards to apply to government-supplied communication devices. This decision disappointed those who were hoping the Court would illuminate constitutional principles relating to electronic privacy in the workplace. It left employers and employees in government agencies, including school districts, without clear guidance regarding the law governing electronic expression, which means more litigation can be expected.
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Strip Searches in Public Schools

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The United States Supreme Court recently heard oral arguments in Safford Unified School District 1 v. Redding, involving the strip search of a 13-year-old girl in an Arizona school district. Savana Redding, an honor student who had not been disciplined previously, was strip searched in 2003 by female school employees after a classmate was caught with prescription-strength ibuprofen that she alleged Savana supplied. Savana asserted that the strip search was stressful and humiliating, and no ibuprofen was found. 

Following the search, Savana transferred to another middle school, but she never received a high school diploma. She and her mother challenged the constitutionality of the search, and the lower court dismissed their claim. Reversing, the Ninth Circuit held that the search was not reasonable and assessed damages against the assistant principal for authorizing the search in violation of clearly established law.

On appeal to the Supreme Court, the school district argues that its actions were justified because of the increasingly significant drug problem among young students. The National School Boards Association contends that it will make school administrators hesitant to look for drugs if the Court awards Savana damages. However, those defending the student, including the National Association of Social Workers, the National Education Association, and the National Association of School Psychologists, note the relatively harmless nature of ibuprofen and argue that strip searches can result in trauma and emotional damage. 

In previous decisions, the Supreme Court has allowed school authorities to conduct personal searches of public school students' book bags, purses, and pockets based on reasonable suspicion that illegal or disruptive contraband is concealed, and random drug tests have been allowed for student participants in extracurricular activities. Because of the special school environment, the Court has not required school authorities to base personal student searches on probable cause that a crime has been committed, which is the standard police must satisfy to secure a search warrant. But until now, the Supreme Court has not addressed whether strip searches of students can be based on the lesser standard of reasonable suspicion.

The Supreme Court is expected to decide this case by the end of June. If the Court condones the strip search, this will expand the authority of school personnel in searching students for drugs and other contraband. A contrary finding that the strip search was unreasonable will have less impact, as most school districts currently refrain from conducting strip searches. There is some sentiment that the student should prevail but that damages should not be assessed because the law governing strip searches was not clearly established in 2003. Savana recently observed that regardless of the Supreme Court's decision, she feels that she has already won because of the significant publicity her case has received, which will likely deter some school authorities from strip-searching public school students. 

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About Me

Martha M. McCarthy, Chancellor's Professor, specializes in education law and policy and chairs the Department of Educational Leadership and Policy Studies at Indiana University (IU). She has also served as Director of the High School Survey of Student Engagement, Director of...Read More

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