California Business Litigation Blog

Granting youth greater leniency is currently a high-profile subject of hot debate within the Sunshine State. For the last two years, Florida lawmakers have considered a statutory amendment to decriminalize underage sexting. Numerous states are wrestling with this “hot” issue.

As the term implies, sexting is the electronic transmittal of sexually explicit content. Cell phones are the most common instruments chosen by minors for this purpose.

Underage sexting is a felony under existing Florida law (and in most other states as well). Therefore, courts must currently treat youthful sexters in the same manner as large-scale child pornography distributors and other sexual predators. Convicted minors incur permanent criminal records, lifelong compulsory sex offender registration, and concurrent travel and residency restrictions.

A notable example involved an 18-year-old Orlando resident sentenced to five years’ probation and mandatory sex offender registration for life. These harsh consequences resulted from the young man’s decision to e-mail nude pictures of his 16-year-old girlfriend to numerous friends and family members after a lover‘s quarrel.

By contrast, the proposed amendment would relegate minors’ first sexting offenses to misdemeanors. Maximum allowable punishment would be an eight-hour term of community service or a $60.00 fine. Penalties for second and subsequent offenses would escalate from those modest levels. Punishment for adult offenders would remain unaltered.

Bullying, intimidation, and blackmail are common motivations for the crime of sexting. Thus, under the new law, underage sexters would still face separate enhanced sentences for ancillary offenses such as stalking.

Florida Senator Charlie Dean observed that such issues need to nipped in the bud to avoid youthful pranks from becoming full-blown sexual predation by full-grown perpetrators. Dean further opined that the amendment would serve all these ends - without turning kids into criminals.

Ensuring that punishment fits the crime is a widely accepted legal principle of long standing. Whether youth is sufficient mitigation for establishing allowable criminal sanctions is the question of the legislative debate.

Society already acknowledges offender-specific traits as valid criteria in setting the relative severity of criminal sanctions. Courts and legislators have long recognized perpetrator intent and mental capacity as legitimate determinants of relative punitive severity. Thus, the Florida Legislature’s reconsideration of its previous stance that turned “molehills” of youthful indiscretion into mountains of lifelong ramifications is commendable.

HERE is a link to a list of 2011 legislation in 21 states related to sexting.

The parent of a San Jose Unified School District pupil has appealed the dismissal of her school district lawsuit to a California appellate court.

Plaintiff Norina Mooney got riled up when the local Lesbian and Gay Bisexual Transgender (“LGBT”) chapter sponsored a “Rainbow Day” celebration at her adolescent’s middle school. Immediately after the event, Mooney requested the insertion of several new items into the school district’s agenda. Her purported reason for making the request was to garner greater event participation by non-LGBT students affected by bullying.

Despite state legislation that mandates the inclusion of such private input into school district agendas, school district officials denied Mooney's request. The stated reason for the refusal was an alleged lack of jurisdiction over middle school decision makers in such matters. In the ensuing school district lawsuit, Mooney seeks injunctive relief to compel educational authorities to adopt her previously proposed agenda modifications.

The Public Justice Institute (“PJI”) is the plaintiff's current legal counsel in this case. PJI president Brad Dacas posited that tolerating the improper imposition of social agendas on the public by its own elected officials is bad. According to Dacas, however, societal acquiescence in the unconstitutional denial of statutory rights to individual expression is far worse.

Dacas further advanced free societies cannot countenance the systematic stifling of open debate about vital public interest concerns.

For now, the question remains open as to whether the California school district officials involved in this case indeed committed grievous legal error. An indisputable fact is that the avoidance of improper conduct or even the appearance of same is crucial for all public school officials.

Continue reading "Rainbow Day Sparks Lawsuit Against California School District . . . and Appeal" »

An African American high school graduate recently sued her school district and several of its officials. Except for one “B“, Kymberly Wimberly earned all “A’s” during her entire tenure at McGehee Secondary School in Pine Bluff, Arkansas. She also completed several advanced courses and earned numerous academic awards.

Despite this exemplary record and having the highest grade point average (“GPA”) in her class, Kymberly was denied the designation of sole valedictorian. Her lawsuit alleges that racial discrimination was the underlying motivation.

Her legal complaint (available HERE) posits that school administrators favored two white students as “heir[s] apparent” to the coveted “Valedictorian” and “Salutatorian” titles.

Kymberly’s mother, Molly Bratton, claims to have overheard educators express concern that acknowledging Kymberly’s rightful place in the Class of 2011 might create a “mess.” The following day, school principal Darrell Thompson told Bratton that a white student whose GPA was lower than Kimberley’s would be “co-valedictorian.”

School Superintendent Thomas Gathen purportedly prevented Bratton from protesting the co-nomination at a subsequent school board meeting. His stated reason was Bratton’s “failure” to complete the correct grievance form. Gathen also precluded Bratton from appealing his decision until after Kymberly’s graduation.

Per court documents, school officials engaged in a pervasive pattern of racial discrimination. Nearly half of the student body is African American. Nonetheless, more than two decades have passed since a Black pupil’s nomination as class valedictorian.

Kymberly’s suit seeks injunctive relief to compel her retroactive nomination as sole valedictorian. She is also demanding punitive damages.

The outcome of this case depends largely upon whether the court finds that school officials’ denial of Kymberly’s status as sole valedictorian constituted intentional discrimination. Because it is a mental state, intent is always impossible to prove categorically. It may, however, be extrapolated from the circumstances that surround an act or event.

Continue reading "Valedictorian Files Lawsuit Against School District" »

A federal appeals court has refused to order the reinstatement of a student suspended for cyber bullying. Kara Kowalski was a senior at Musselman High School in West Virginia when she launched her vicious attack against a classmate. Kara’s weapon of destruction was a personalized MySpace page entitled “S.A.S.H.”

At subsequent court hearings, Kara stated that S.A.S.H was an acronym for “Students Against Sluts Herpes.” She went on to allege that another student started a false rumor that the title really represented “Students Against Shay’s Herpes.”

Nonetheless, numerous youth immediately posted images of Shay on S.A.S.H. All of the intentionally altered pictures suggested that Shay had a venereal disease. Shay suffered severe harassment and ostracism as a direct and proximate cause thereof.

When Shay’s parents complained to authorities about this offensive content, school administrator deemed that S.A.S.H. was indeed a “hate website.” Official school policy prohibits cyber bullying. Accordingly, Kara received a five-day disciplinary suspension.

The ensuing litigation posited that this punishment violated Kara’s constitutional rights to due process and free speech.

The court rejected those claims, however. The sole purpose of S.A.S.H. as a forum for defamatory publication and derogatory depictions seems to have been the underlying rationale.

Thus, the Fourth Circuit jurists ruled that school officials did not usurp their legal authority by suspending Kara. Judge Paul V. Neimeyer penned the majority view. In it, he opined that school officials acted appropriately by taking Kara’s callous disregard for a fellow student very seriously.

In addition to being suspended, Kara was prohibited from crowning her successor to the “Queen of Charm” throne. She also lost a cheerleading post.

Ironically, Kara also claimed to have suffered severe depression and social isolation as collateral consequences. The court was apathetic to those assertions, however.

This is a great example of school authorities doing the right thing for the right reasons.

The last paragraph of the Court’s decision says it best: “Rather than respond constructively to the school’s efforts to bring order and provide a lesson following the incident, Kowalski has rejected those efforts and sued school authorities for damages and other relief. Regretfully, she yet fails to see that such harassment and bullying is inappropriate and hurtful and that it must be taken seriously by school administrators in order to preserve an appropriate pedagogical environment. Indeed, school administrators are becoming increasingly alarmed by the phenomenon, and the events in this case are but one example of such bullying and school administrators’ efforts to contain it. Suffice it to hold here that, where such speech has a sufficient nexus with the school, the Constitution is not written to hinder school administrators’ good faith efforts to address the problem."

The entire decision may be viewed HERE.

Continue reading "Federal Appeals Court Rules Against High School Cyberbully" »