California Business Litigation Blog

In Indiana, lawmakers are considering new legislation that would give schools the power to punish students for legal behavior that occurs away from school, including statements and opinions they post on personal blogs or Facebook accounts.

The bill was approved by the State’s House of Representatives in January 2012 and is now in the hands of the Indiana Senate, according to the Student Press Law Center. It has been justified as an attempt to prevent cyberbullying and school cheating.

Indiana law already allows students to be disciplined for illegal behavior that occurs off campus, as long as the behavior could reasonably be considered to interfere with “school purposes or educational function.” State representative Eric Koch wants to amend the existing law to cover legal behavior, as well.

The new law has Ken Falk of the American Civil Liberties Union of Indiana concerned about conflicts with the Constitution. “From a First Amendment perspective,” he said, “if the student engages in lawful activity off of school grounds, there’s a very high standard that has to be applied before that can somehow lead to discipline.”

The Indiana School Boards Association supports Koch, who is not concerned about conflicts with the First Amendment. He cited Kowalski v. Berkeley County Schools, in which a federal appeals court upheld a school’s right to punish disruptive speech that occurred away from school. “I wouldn’t knowingly promote anything that would infringe First Amendment rights,” he said.

Falk questioned the need for a law concerning cheating and cyberbullying. Cheating should continue to be handled as it has been in the past, he said, and cyberbullying should only be punishable when there is an imminent threat of violence. The proposed legislation is ripe for abuse, according to Falk, who said that a student who belongs to a gay rights group, for example, could be punished if the school decides the activity is troublesome.

Frank LoMonte, of the Student Press Law Center, said that the law could set a bad precedent. “This could be like a bad cold that gets passed from state to state,” he said. He warned that the law could be abused by schools that could use it for image control.

“Spoliation of evidence" is a legal phrase describing the deliberate destruction of evidence that would impact a trial. Although spoliation of evidence is a rare finding in civil cases, it was the finding of a state district judge in Virginia, who imposed fines totaling $522,000 on attorney Matthew Murray. Murray’s client was also fined $180,000 for acting on his lawyer’s advice to break the law. The case, Lester v. Allied Concrete Co., was a wrongful death suit filed on behalf of a bereaved husband.

The court found that Murray grew concerned that pictures Lester had posted on his Facebook account contradicted the pair’s claims in their case. The case was ultimately decided in Lester’s favor and $10 million in damages was awarded to him by a jury.

The deleted photographs came to light when an attorney for the defense managed to view Lester’s Facebook page through a mutual friend’s account. The page contained pictures that presented Lester engaged in various activities. Murray became concerned that some of these photographs, including one of Lester holding a beer and wearing a T-shirt proclaiming his admiration for “hot moms,” might cast doubt on Lester’s claim to be distraught over the loss of his wife. He advised Lester to remove the pictures.

Allied Concrete’s attorney was able to establish in court that Lester deleted the pictures, and the defense was furnished copies of them before the trial. After the trial, the judge ruled that all emails that had been exchanged between Murray and Lester were not protected under attorney-client privilege laws and demanded copies of them.

As a result of the evidence contained in the photographs, the judge decided that Lester was dishonest about his depression and the treatment he was receiving for it. Based on the emails exchanged between Lester and Murray, Lester was also found to have lied to the court about the existence of his Facebook account, and then lied about his attempts to delete it and its contents. In addition, the judge determined that Murray’s actions amounted to spoliation of evidence, and further found that he had attempted to cover his tracks by submitting incomplete evidence and blaming the act on a paralegal. After the ruling, Murray resigned from his law firm.

Continue reading "Judge Rules Deleting Facebook Photos is Tampering with Evidence " »

A lawsuit claiming that an Indiana school district violates federal laws has been reinstated. The suit charges that a school in Franklin County, Indiana, favors the boys’ basketball team over the girls’ team when it comes to scheduling games. A lower court had dismissed the suit, but the U.S. Court of Appeals for the Seventh Circuit disagreed. If the district loses the case, the decision will likely have an impact on public schools across the state.

Two parents with daughters on the girls’ basketball team, including a former girl’s basketball coach for the district, allege that the school gives precedence to the boys’ team when it comes to scheduling games. Boys’ games are more frequently scheduled on Fridays and Saturdays, while girls’ games often get weekday slots.

The parents believe this practice violates Title IX of the Education Amendments of 1972, which stipulates that school programs that take federal money cannot discriminate based on sex.

Paul Neidig, the school's athletic director, did not deny the practice, focusing instead on efforts made in the last ten years to cut down on discrimination against girls’ teams. "Years ago it was not uncommon that girls never played on Fridays and Saturdays," he said.

Neidig defended the school’s practice of reserving coveted slots on the calendar for the boys’ basketball team’s games. According to Neidig, the school has other concerns besides providing equal opportunity to male and female students. In Indiana, he said, athletic programs rely on ticket sales and fundraisers for some of their funding. In defense of the school's practice, he pointed out that attendance is lower at weeknight games than at Friday games, a point also made by the plaintiffs.

According to Neidig, each school's athletic director, along with coaches, determines game schedules. Most of his school's games are on Tuesdays, Fridays or Saturdays, he said. Away games must, of course, be coordinated with the schedules of other teams. Neidig says that his school has a policy of alternating away games between the boys and girls teams.

"We're always trying to balance that schedule," said Neidig. "We don't want parents and school administrators to have to choose which home game they go to."

Continue reading "Indiana School Favors Boys Team, Suit Alleges" »

A lawsuit has been filed in the Miami County (Ohio) Common Pleas Court against the Bethel Local School District’s Board of Education as a result of an attack on a student. The suit maintains that the assault occurred at Bethel High School. The suit, filed by a student and his mother, alleges that the claimant was viciously attacked in April of 2011 by a fellow student who hit the boy and kicked him in the head until he lost consciousness. The victim and his alleged assailant have not been named because they were both minors at the time of the incident.

The original suit accuses the school of providing inadequate supervision. It contends that no faculty or staff was in the vicinity of the attack and no one intervened to stop the assault. According to court documents, the injured boy sustained permanent, severe injuries and is expected to incur ongoing medical expenses as a result of the attack.

The plaintiffs in the case are asking for punitive damages in addition to expenses. The suit also names the parents of the alleged aggressor as parties to the lawsuit. The parents of the student who is accused of attacking the injured boy are pointing the finger at the school district, claiming that the attack is the fault of the school district.

In addition, the parents of the boy who is accused in the attack have filed a countersuit against the victim and his mother. They claim that the alleged victim was actually the aggressor in the incident, and that their own son suffered severe injuries at his hands. They also allege that another child from their family was also the victim of an ongoing pattern of abuse, including bullying and assault, at the hands of the plaintiff.

In the school district’s response to the suit, the district maintains that it acted in good faith and behaved reasonably. The board of education claims that the district had no control over the independent actions of the students involved and has asked that the suit be dismissed.