LEARNING FROM HISTORY

We have all heard the expression: “Those who don’t learn from history are doomed to repeat it” and I came across an excellent example of this in a case I was reviewing.  On January 12, 1905 the Governor of Wisconsin addressed the Wisconsin State Legislature on the problems of letting corporations participate in politics.   Here are some excerpts from his speech:

“The participation in government of the corporation as a corporation is a menace.  Its action is governed by no sense of individual or personal responsibility.  It is controlled by no sentiment of patriotism.  Corporations are organized for profit and gain, and enter the field of politics solely in the interests of the business for which they were created.”

He continued his speech in support of legislation to outlaw political contributions by corporations in any political activity.

“I believe it to be vitally important that corporations should be prohibited by law from contributing money for political purposes.  Individuals may properly contribute to pay the legitimate expenses of conducting political campaigns. Money so contributed is given with the personal responsibility of the individual making the contribution.  But when corporations can furnish money from corporation treasuries to carry elections individual free-will and responsibility is gone.  Should the custom of the corporation contributions to campaigns grow broad enough, the whole character of the government would be changed, and corporations not men would rule.  The money power would then become the controlling power in the state.  There is no surer way of undermining and finally overthrowing free popular government than allowing the system of corporation contributions in political contests and campaigns.” (Journal of the Senate of the Wisconsin Legislature, Volume 1, 1905, pg 89).

The Wisconsin legislature went on to pass a law that stated:

Chapter 492, Section 1:  No corporation doing business in this state, shall pay or contribute, or offer, consent or agree to pay or contribute, directly or indirectly, any money, property, free service of its officers or employees or thing of value to any political party, organization, committee or individual for any political purpose whatsoever, or for the purpose of influencing legislation of any kind, or to promote or defeat the candidacy of any person for nomination, appointment or election to any political office.

Wisconsin restricted corporate involvement in politics and the governor was almost prophetic in what could occur if corporations weren’t kept out of the political arena.  However, the United States Supreme Court has rendered several opinions that have granted corporations the same rights as individuals, even though they are a fictitious entity.  What is left of the Wisconsin law is only that corporations can’t contribute directly to candidates.  They can actively participate in ballot initiatives and give monetary support to PACs and political parties.  So what the governor feared in 1905 has in part come to pass.

Why should a corporation, an entity that can’t vote and isn’t even alive, be allowed to participate at all in politics?  The character of our government has changed and is now run by corporations such as Halliburton, Exxon, and Wal-Mart and not by the people.  There is no disputing corporate power in America today.  Their money is the controlling power in the state and federal government.  Our free and popular government has effectively been replaced by corporate influence.

We need federal legislation to set aside the Supreme Court’s decisions granting corporation the rights of individuals.  Individuals make up our democracy based on one person one vote.  Corporations aren’t people and shouldn’t be allowed to have the rights of individuals.  The Governor of Wisconsin was right in 1905, and he would be right on point today.  We should learn from our history and not make the same mistakes.


USA 

PRAYER AT SCHOOL

The end of the traditional school year is coming and with it are the numerous graduation ceremonies.  Many of us remember the old invocations at these ceremonies given by a local pastor or minister.  Times have changed and the United States Supreme Court has cracked down on clergy giving prayers at graduation.  But it is a misnomer to think that prayer has been banned from public schools.

Many people are under the impression that students are prohibited from praying at public schools.  This is far from the truth.  At any point during the school day a student can pray quietly.  If the prayers are more active or verbal, they can do it at recess and at lunch.  What is prohibited is the school bringing clergy onto campus to lead prayers.

The Court has also held that employees or agents of the school district cannot lead students in prayer.  This is prohibited by the First Amendment to the Constitution that requires the separation of church and state.  But if students can pray anytime on their own what is all the uproar about letting teachers lead prayers?

First and foremost is that school personnel are not trained to lead prayers and are already overworked and underpaid without adding this new religious task to their list.  And then there is always the question of which prayer is acceptable to everyone?

Many people think there is no harm in having a teacher lead a class in a Christian prayer because we are a Christian country.  But actually we are not a Christian country.  Our nation’s founding fathers had that choice to make and decided against it, referring to God but to no specific faith.  European history is riddled with problems that arose when church and state were not separated.  Take the Inquisition for example.

Our teachers are trained in education not religion.  No one is prohibited from attending the church or religious institution of their choice.  Also, no one is precluded from having their children say a prayer before they go to school or after they come home.  And as I stated before a child can pray all they want at school on their own.

So religion has not been banned at our public schools, it is just not conducted by school officials.  And the school is not deciding what is the correct prayer for all our children to recite.  Whether you are Catholic, Baptist, Jew or Muslim your child’s school won’t be infringing on your religious practices.

As the saying goes:  “As long as there are tests there will always be prayer at schools.”  These will be student prayers, not someone else’s.

SPECIAL EDUCATION STUDENTS AND DISCIPLINE

The “Individual with Disabilities Education Act” (IDEA) was first enacted in 1975 to ensure that students with disabilities receive a “free and appropriate public education” in the least restrictive environment.  Each child who is found eligible receives an Individual Education Plan (IEP).  The IEP is prepared by a special education teacher, a general education teacher, a representative from the local education agency, someone who can interpret and explain data, and a parent or guardian.  The IDEA provides parents of disabled children a variety of procedural protections in the identification and evaluation of their children and in the creation and implementation of the IEP.

When it comes to student discipline the IDEA also provides protection for children who display behaviors that are manifestations of their disabilities.  The IDEA prevents a change in placement of the student unless certain procedures are followed.  These were adopted in part to prevent the “warehousing” of special education students or forcing them out of school.

One of the most important provisions is the “stay put” provision.  This prevents a change in the student’s placement if the parent has requested a due process hearing.  The child remains in the same placement until a decision is made by a hearing officer on the alleged problems with the child at school.

Not all actions fall within a child’s disability.  The more planning and premeditation involved in the breach of discipline may result in a determination that such conscious acts are not subject to a disability.  If the act was not a manifestation of the disability then normal discipline may be imposed.  If the act is determined to be a result of the child’s disability then the child may not be suspended or have his placement changed except through the IEP process.  If the IEP team recommends a change in placement and the parent disagrees then the parents can request a due process hearing and the child “stays put”.

A short term suspension of 10 days or less does not trigger the same protections for students with disabilities as do longer suspensions or expulsions.  These ten days are cumulative for a school year.  In-school suspensions do not count toward the ten days if the child continues to receive services as specified in his IEP.

Prior to implementing a long term suspension or expulsion the school must notify the parents of the procedural safeguards of IDEA.  These include the basis for the proposed suspension, options considered and the right to file for due process hearing.  Also before there is any change in placement the IEP team must make a “manifestation determination” that the behavior is or is not related to the child’s disability.  This determination must be made within 10 days after the student has been suspended for 10 days.

There are many more provisions and requirements set forth in the IDEA.  With the rise in student violence many districts have adopted zero tolerance rules.  If you have a child with a disability you are entitled to certain procedural safeguards against having your son or daughter removed from their school.  You don’t have to accept what the district proposes.  You may need to request a due process hearing to ensure that the law is followed.

 

Jeff Blanck is the former General Counsel for the Washoe County School District and now is in private practice in Reno.  He can be reached at:  [email protected]

POLICE INTERVIEWS OF STUDENTS

It is not an uncommon occurrence to have the local police show up at a school asking to interview a student.  It is even more common for School Police to make such a request.  When this occurs what is the proper protocol and procedure?  When your children are at school the principal is in loco parentis.  This means he or she acts in the place of the parent.  The first thing that should occur is the principle should ask what the questioning is about and can the police contact the student at their home.    If it is a parental child abuse issue, the principal should just follow the requests of the police and should not contact the parents.

I doubt the police will want to contact the child at home in any event because that is usually why they come to the school, to avoid the parents.  If the police still want to see the child at school on an issue other than abuse then the principal should comply with the request but also immediately notify the child’s parent that the police are there and want to interview their child. If the parent wants to talk to their child then put them on the phone.  The principal should not stop the police from doing an interview but the principal has the right to be present and should be in the room.

If a child asks for their parent during a police interview it is the same as an adult asking for a lawyer.  All questioning should stop until the parent is present.  The principal can even ask the child if they want their parent there and let the parent know that they can request this of their child when they are talking on the phone.

So what is the big deal of letting your child talk to the police at school?  Well, first off, if your child is a suspect in a crime you don’t want them to incriminate themselves.  Second if your child is a witness to a crime you want to know first.  You don’t know if what your child saw could put them in danger of retaliation by the accused and the police can’t protect them from retaliatory acts.  Additionally, as a parent you have the right to know that your child was pulled from class and is talking to the police instead of studying English or some other topic.

Putting all this in context, what I am referring to are formal interviews by the police.  If the police want to question your child about a specific event that is the subject of an investigation, you should insist that the above procedures are followed.  If your child has a passing conversation with a school police officer or city police officer that is generally not a problem.  You need not discourage your child from having any conversation with a police officer especially if someone needs help.

But you do need to let your children know that they should always ask for their parent if they are taken aside and questioned in a room or office by the police and not to say anything until you arrive.  They are your children and you have a right as a parent to be there when they are questioned by the police.

 

Jeff Blanck is the former General Counsel for the Washoe County School District and now in private practice in Reno.  He can be reached at:  [email protected]

STUDENT EMERGENCY SUSPENSIONS

What exactly is an “emergency suspension” of a student from school?  This term applies to situations where the school feels that for the safety of students and staff a particular student must be removed from school immediately.  It sounds pretty serious and it is.  It is only to be used when there isn’t time to do a pre-suspension investigation or hearing that is required for regular suspensions.

The typical situation for an emergency suspension is when a student starts a fight, brings a weapon to school or hits a teacher.  The student is removed and given a suspension of up to ten days.   But this assumes that the student did the act and we live in a country where you are innocent until proven guilty.  So the Supreme Court ruled back in 1975 in Goss v. Lopez that a post-suspension hearing must be held as soon as practical after the emergency suspension.  This applied to suspensions for up to ten days.  Longer suspensions require a more formal process.  But school districts think that they can kick a kid out of school for up to ten days with no process at all.   When they do, it violates a students due process rights.

The district is supposed to conduct an immediate inquiry and meet with the student and parents as soon as practical after the suspension to inform the family of the charges and evidence against the student as well as give the student an opportunity to respond.  According to Nevada State law students have a property right in their public education and they can’t lose this right without due process.

But school districts are omitting the second step after the student is initially removed.  There is no post suspension hearing, no distribution of evidence and no ability for the student to refute the allegations against him.  School districts think that they have ten days to hold a hearing not just on the emergency suspension but on any longer suspension as well.  They’re wrong

The Goss case clearly stated that a post suspension hearing had to be held as soon as possible.  That case also stated that the loss of school time and the negative stigma attached to a suspension of even less than ten days was significant to a student.  This was recently reaffirmed right here in Reno in Federal Court.

In two separate cases the Washoe County School District was found to have violated a students due process rights by issuing an emergency suspension and not having a hearing shortly thereafter but postponing the hearing for nine or ten schooldays later.  The court found that this delay substantially prejudiced the student and was unjustified by the alleged heavy workload of administrators.

Ironically the District’s defense was that the ten days was insignificant.  Their lawyers from Maupin Cox and LeGoy stated that ten days was no big deal and that the students ended up graduating anyway so no harm no foul.  How did their lawyers reconcile this attitude with the District’s attendance policy requiring 90% attendance for students or they will get an “F”?  This policy means that in a semester if a student misses nine unexcused days they will fail the class.

The District adopted this rule because of how important class time is for a student as well as just learning the curriculum.  Fortunately the judge saw this hypocrisy and followed the longstanding law set forth by the Supreme Court.  Now the Washoe County School District has to do the same.

If your child gets an emergency suspension, demand a hearing immediately.  If a hearing is not provided, you can file an action in Federal Court.  Waiting ten or more days for a hearing is against the law and the District is now well aware of that fact.

 

Jeff Blanck is the former General Counsel for the Washoe County School District and now is in private practice in Reno.  He can be reached at:  [email protected]