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Public schools are facing an increasingly sue-happy public, particularly on matters like the establishment of religion and freedom of expression guaranteed by the First Amendment to the U.S. Constitution. More evidence is available today from NSBA’s School Board News Today, which relays news a legal brief filed in support of school administrators who may have been the victims of a sting operation by parents wanting to push the boundaries of religious expression.

The National School Boards Association and the Texas Association of School Boards have joined together to file an amicus brief in what has come to be known as the “Legend of the Candy Cane.”

Nearly six years ago, school officials in Texas prevented two third-grade students from distributing candy canes with religious-themed messages attached. Administrators feared that the action would violate the First Amendment’s Establishment Clause, which forbids schools from advancing the interests of a particular religion.

Parents of the children immediately made a press event out of the situation, and lawyers were bringing suit against the district shortly after their children were told they couldn’t distribute the religious messages, leading NSBA and TASB to argue that the parents ““are part of a deliberate advocacy movement to create First Amendment litigation through ‘gotcha’ moments involving lower-level school employees.”

South Dakota schools have not been immune from lawsuits filed by national advocacy groups looking to establish policy through public school litigation. Several years ago, the Hot Springs School District was sued by the Alliance Defense Fund after the school had to temporarily suspend a school board policy that allowed religious-school students to be transported using public school buses.

The Hot Springs School District discovered that using public busses to transport private school students was not allowed by state law, so they suspended the policy until the school district successfully passed legislation making the practice legal. Even through the busing was reinstated as soon as possible, the parents, backed by the powerful national litigation group, initiated the lawsuit anyway, alleging that the district’s actions amounted to religious discrimination.

The Hot Springs School District eventually was vindicated when the courts sided with the district.

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News from Washington State involving a school district’s drug testing policy is a good example of the fine line that districts must walk when adopting school policy.

NSBA’s Legal Clips has the goods on a story developing in the Evergreen State following a state Supreme Court decision that struck down a district’s mandatory drug testing program.

According to the Longview Daily News,the Wahkiakum School District (WSD)has tweaked the wording in its proposed drug-testing policy,encouraging students to submit tourine tests as an option to prove their innocence, rather than as a requirement imposed on suspected offenders. The revised wording does little to change the policy, which would allow school officials to administer drug tests to students suspected to be under the influence. WSD’s attorney, Dan Bigelow, told school officials it would, however, strengthen the district’s legal position.

The article goes on to say that if a student is suspected to be under the influence, they have the option to prove their innocence by submitting to a drug test. Declining the test is the same as failing the test, according to the policy.

A few school districts in South Dakota have instituted drug testing programs, but the policies in the Mount Rushmore State establish voluntary, random procedures that allow the parents to choose whether the test goes forward. The voluntary nature of the policy has been supported by the U.S. Supreme Court, making it a safer approach.

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Lawmakers on Thursday morning turned away a measure requiring all school districts to adopt bullying policies.

Members of Senate Education deferred SB 104 to the 41st Legislative Day on a 4-3 vote, effectively killing the legislation for a third year in a row. Legislators who voted against the bill said local schools should be given the full authority to address bullying.

“We’re not hard-hearted,” said Sen. Elizabeth Kraus, R-Rapid City, before voting to kill the measure. “We just truly believe it’s a local control issue.”

Sen. Stan Adelstein, R- Rapid City, told the panel that South Dakota has the highest percentage in the nation of students who commit suicide – something he said the bullying legislation would work to counter. He urged lawmakers to endorse the measure, saying it was a “matter of helping children to stay alive.”

ASBSD supported the bill based on a resolution adopted in November by the ASBSD Delegate Assembly. Representatives from local school boards told ASBSD staff to support legislation that requires local school boards to adopt written bullying prevention policies, provided the legislation gives local school boards flexibility

“Everything in the bill as written adheres to the position our school board members have taken,” said ASBSD Director of Legal Services Bill Engberg.

Representatives from other education organizations lined up against the bill, including lobbyists for school administrators, small schools, mid-sized schools, large schools and Rapid City and Sioux Falls. All opposed the measure on the grounds that it went too far into local decision-making.

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If you search Open Forum's "school board policy" archives, you'll find plenty of entries covering last year's legislative debate on bullying.

ASBSD opposed the legislation, which we felt was poorly worded and destined to have bullying prevention figured out in court rooms rather than board rooms and classrooms. As an organization, we ramped-up our awareness-building on bullying prevention in schools, which you can read about here.

In case you don't have a subscription to American School Board Journal, the magazine of the National School Boards Association, hurry and move over to ASBJ.com and check out their September cover story on bullying.

An excerpt:

Bullying prevention has changed from focusing on individual students and problems with curriculum units and once-a-year student assemblies. Efforts now hone in on the entire school district, with the adults' responses to bullying being the key to change.

“School leaders must be aware of the messages they send,” says author and school counselor Stan Davis.

All schools have an overt culture and a hidden one, says Davis, who works at the James A. Bean Elementary School in Sidney, Maine. “Kids are paying attention to the hidden one. They will see if we welcome new staff, and if we will listen to hate speech.” Students tell him that their classmates say, “That test is so gay.” When the adults don't address it, the curriculum and assemblies are wasted.

Adult responses to bullying and harassment, with consequences, show that teachers and staff are serious. The consequences don't have to be dire, like suspension or expulsion, but Davis says they must be consistent. Then students know the behavior is not acceptable, and the adults in the building are committed to stopping it.

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A third attempt to revive a bill that would require all schools to adopt bullying policies has stalled on the House floor.

Lawmakers decided Tuesday not to allow further debate on HB 1279, ending a procedural maneuver called a “smoke-out” that allows lawmakers to circumvent the committee process to pass legislation.

In this case, lawmakers voted 36-34 to uphold the House Education Committee's recommendation that the bill “Do Not Pass.” By sticking with the committee recommendation, the issue was not granted a debate on the House floor.

Following the failure of the smoke-out, ASBSD lobbyists learned that the bill's sponsor, Rep. Dan Lederman, R-Dakota Dunes, may try to revive the issue in the Senate Education Committee.

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Members of House Education rejected HB 1279 on an 8-7 vote, capping a lengthy discussion on the status and importance of school district bullying policies.

“I don't think that the bill is quite ready to be put on the books yet,” said House Education Chair Ed McLaughlin, R-Rapid City, who cast the deciding vote. “We'll leave it to local school districts to address it.”

Nearly every committee member stressed the need to protect students through bullying policies, but less than half voted for it – a dynamic that concerned Rep. Ryan Olson, R-Onida.

“I think this committee agrees that this policy should be adopted,” Rep. Olson said, saying that if the committee voted down the bill, they'd each to have to consider what they would accept as evidence that schools have responded appropriately.

Rep. Bill Van Gerpen, R-Tyndall, voted against the legislation, but said the bill succeeded in creating awareness. It should be clear to school districts that lawmakers are interested in the issue, he said.

ASBSD opposed the legislation, walking a nuanced line against complicated state mandates while encouraging schools to develop local policy. The association has several policies relating to harassment and bullying, and ASBSD will draft a comprehensive sample policy and regulations to disseminate to schools.

The association also plans to work alongside the Department of Education and education advocacy groups to ensure school districts have resources at the local level to address the situation.

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A bill requiring all school districts to develop policies prohibiting bullying and harassment was brought back to life Wednesday.

Members of House Education brought HB 1279 off the table after the bill's sponsor, Rep. Dan Lederman, R-Dakota Dunes, said he drafted amendments to resolve opponent objections to the legislation.

The committee quickly accepted Rep. Lederman's changes, and then amended the bill a third time to refine the definition of harassment to mirror language from a Brandon Valley School District policy that prohibits bullying.

The rapid pace of action and lack of public testimony on the new measure concerned some lawmakers.

“I feel like we're running through this very rapidly, making changes on the fly that could have some unintended consequences,” said Rep. Kim Vanneman, R-Ideal. “We need to step back here and really evaluate this.”

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Lawmakers will consider whether to require school districts to adopt policies prohibiting harassment and bullying.

Rep. Dan Lederman, R-Dakota Dunes, is the prime sponsor for HB 1279, a measure that defines bullying and harassment and requires school districts to adopt anti-bullying policies by Dec. 1, 2009.

Under the bill, bullying is defined by “causing of physical hurt or psychological distress on one or more students or employees.” Harassment is defined as use of “data or computer software, written or verbal communication, or conduct” that places a student or school employee “in reasonable fear of harm” and “substantially interferes with a student's educational performance” or “substantially disrupts the orderly operation of a school.”

According to the legislation, local policies would have to:

• Define and prohibit bullying;
• Outline consequences for bullying;
• Develop mechanism for reporting bullying; and
• Develop a procedure to investigate and respond to any report of bullying.

The legislation allows local school districts the option to incorporate several other elements in to bullying and harassment policies, including a system to notify parents of any bullying incident and to determine whether any act of bullying is within the jurisdiction of the school district.

ASBSD opposes the legislation, but not the concept. The state school board association encourages school boards to adopt bullying policies, but recognizes that the scope and form of policy varies by school district and should be left to each community.

Most schools already have bullying policies. But, even if a school board has adopted a formal policy prohibiting harassment and bullying, the legislation stipulates that the board must review the policy to ensure compliance.

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