California Business Litigation Blog

The daughter of Debashish Biswas, the Vice-Consul in the Consulate General of India in New York, has filed a $1.5 million suit against the city of New York. Krittika Biswas alleges that she was taken from her high school classroom in handcuffs and imprisoned after she was falsely accused of sending sexually threatening emails to a teacher.

Even after another student from John Browne High School in Queens admitted to the crime and all charges against Biswas were dropped, the honor student was suspended from school and forced to attend what the suit calls the equivalent of a reform school.

Biswas’ lawsuit was filed in the US District Court Southern District of New York. It alleges that the plaintiffs, including the city of New York, the Department of Education, specific officials from the Department of Education, the principal of John Browne High School, the teacher who received the emails and Raymond Kelly, police commissioner of the city of New York, violated 26 state and federal laws during the incident.

According to court documents, Biswas was arrested, handcuffed, processed and imprisoned for more than 24 hours. The suit alleges that she was arrested and mistreated in spite of the fact that there was no evidence against her as a result of ethnic bias. Court papers also state that Biswas was denied the opportunity to consult her parents or to meet with Indian diplomats while she was in custody. When Biswas refused to confess, a police officer attempted to intimidate her by telling her she would be jailed with inmates who were HIV-positive.

Included in the documents are allegations that Biswas suffered from so much mental distress as a result of the incident that she left the United States and returned to India. She is currently a college student in that country, and is majoring in science and engineering.

Attorneys for the city of New York declined to comment, stating that they had not had a chance to review the suit.

Alex Boston, a 14-year-old girl from Georgia, has filed suit against two other teenagers and their parents for libel after the pair impersonated her online, depicting her as a sexually active, marijuana-smoking racist.

Court documents allege that the two were classmates of Boston who opened a Facebook account containing racist video. Additionally, the two posted messages on the walls of Boston's friends in which she appeared to admit to abusing drugs and having sex. All these characterizations were untrue and the defendants knew it, according to Boston's attorney, Natalie Woodward.

Boston first came across the Facebook page last year. She says that the account, which appeared to belong to her and to reflect her views, was very upsetting. The fake page was so well executed that Boston's other classmates believed that they represented the real Boston, and she was subjected to “hatred, contempt and ridicule" as a result. In her suit, she accuses the defendants of intentional infliction of emotional distress, as well as defamation.

Boston's parents initially went to school officials, who were unable to help because Georgia law does not allow schools to punish students who bully other students off-campus. Internet bullying initiated outside of school does not meet the Georgia requirements for on-campus bullying.

Local police were also unable to help because Georgia had no applicable law against cyberbullying. They suggested the Bostons ask Facebook to close the account and remove the page. When Facebook failed to take action, the Bostons brought suit against the teenagers behind the hurtful account. Ironically, once news of the lawsuit was featured on CNN, Facebook removed the page.

According to Woodward, the attack was unexpected. The defendants reportedly told adults from school that they simply didn't like Boston.

Federal courts have historically toed a fine line in such cases. In a case from 2005, a federal judge ruled that a school in Pennsylvania erred when they suspended a student for creating a MySpace page that parodied the school’s principal but didn't disrupt school. However, a similar suspension was upheld by a federal judge in a West Virginia case involving a student who implied through a website that another student had an STD.

A Missouri school district is being sued after a district employee punished two students for their off-campus speech. Lee's Summit R-7 School District is accused of violating the First and Fourteenth Amendment rights of two honor roll students. The suit was filed in federal court by Brian and Linda Wilson, the parents of the students.

According to court documents, the district suspended the students, who are twin boys, for six months for creating a nonviolent blog. The court is being asked to dismiss the suspensions and expunge them from the boys' school records.

The blog, northpress.tk, was a satirical site that the boys created and maintained on their own computer away from school outside of school hours. According to the suit, the students went to great lengths to prevent the site from being accessed by the general population of their high school, even using a Dutch domain name to make it difficult to find through an Internet search.
The school became involved when administrators learned of the site on the same day that a reader, unbeknownst to the students, posted a racial slur in the comments section of the blog.

Although another student promptly removed the slur, the incident appears to have spurred the district's superintendent, David McGehee, to suspend the boys on the grounds that they were involved with the blog.

In their suit, the parents of the students state that the boys were offered the chance to attend an alternative school for at-risk students. However, the alternative school does not have programs capable of meeting the academic needs of honor students, according to the Wilsons. In addition, the alternative school does not have its own band and will not allow the boys to continue to maintain the leadership roles they have earned in their regular high school's band.

According to court papers, the parents fear the suspension will interfere with the students' chances of being accepted by colleges. In addition, the suit maintains that allowing the school district to punish legal speech that took place away from school will have far-reaching negative consequences. If the district's actions go unchecked, the suit alleges, “The result would be an impermissible chilling effect on speech.”

A Minnesota mother has filed suit against the Minnewaska School District on behalf of her 12-year-old daughter. The suit, which has the support of the American Civil Liberties Union, is expected to have an impact that reaches far beyond the grounds of Minnewaska Area Middle School. At issue is the length schools and employers can go to in order to control private speech.

The girl at the center of the case, known only as R.S., alleges that school officials punished her multiple times for her private Facebook activity and then staged a mock police detainment in order to coerce her into revealing her Facebook and email passwords. The suit claims that school employees used the information to read the girl’s private emails and posts.

R.S. believed she was being targeted by a school monitor, so she posted a message on her Facebook wall saying that she hated the monitor for being mean to her. Facebook does not allow public viewing of the walls of minors, so there was no way for the monitor or school officials to see the message. Someone showed a screenshot of the girl’s wall to school officials, however, and R.S. was punished and forced to apologize to the monitor.

Afterwards, R.S. posted a message expressing her anger at the “friend” who had told on her. She was suspended from school for this post. Later, the guardian of another student complained to school officials that R.S. had discussed sex in a private Facebook conversation with another child. Neither the posts nor the conversation was conducted on school grounds or using school equipment.

After the last incident, R.S. claims she was detained in a small room in the presence of a police officer and two school employees and told she had to reveal her Facebook login information and her email password. The suit alleges that R.S. sobbed with fear and humiliation as the officer and school employees read her private conversations and emails and berated her for their contents.

The suit alleges that the district violated the student’s First and Fourth Amendment rights. According to court papers, the girl’s mother was not informed of the interrogation and never gave anyone permission to look at her daughter’s private communications.

The school district contends that its actions were reasonable and legal. According to a district spokesperson, “The district is confident that once all facts come to light, the district's conduct will be found to be reasonable and appropriate.”

Continue reading "12-Year-Old Sues School for Facebook Privacy Violations " »

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.

According to a study conducted by Plymouth University, teachers in the UK are increasingly becoming the target of cyber bullying at the hands of students and parents. Andy Phippen, who authored the study, questioned nearly 400 teachers earlier this year about their experiences with cyber bullying. He discovered that 35 percent of the teachers in his sample said that they or a colleague had been the victim of cyber bullying perpetrated by students or their parents.

In an interview, Phippen stated, “Everyone acknowledges this is a problem and something needs to be done about it, but schools lack support. It is a sticky area as some of the things posted may not be considered illegal." Furthermore, British schools have not shown much support for teachers who have been targeted. "I heard of one case where a teacher told his employers about the bullying and not only did they tell other members to staff to ignore this teacher, they also suspended him. Their reasoning was ‘there is no smoke without fire’.”

The study's participants reported incidents of cyber bullying ranging from Facebook postings to abusive Tweets. Phippen was particularly disturbed to discover that 26 percent of the bullying was actually committed by parents. One educator who participated in the study had what she called a "mini breakdown" after a year-long campaign of abuse by a parent. “The parental statistics were particularly surprising," said Phippen. "Schools are definitely playing down the severity of the issue, whether it’s because they just don’t realize, or because they don’t know how to deal with it.”

Phippen wants to change that and thinks Britain needs a nationwide support network to address the problem. Although I am not aware of any similar study in the US, it's (unfortunately) a safe bet that it's happening here. In recent years American courts have heard several cases in which students were suing over punishments meted out by schools for mocking or insulting posts made outside of school.

Reports of schools violating NCAA regulations by providing incentives to student athletes are nothing new. Numerous universities have been sanctioned for such violations in recent years, including the University of Miami, Ohio State University and the University of Southern California, among others. The most recent scandal, involving the University of North Carolina, offers a new twist on an old theme, however. The UNC scandal is notable because it was social media that first alerted NCAA officials that something was amiss. Tweets made by a student player on Twitter revealed that he was receiving unsanctioned benefits from the school.

In the NCAA’s Notice of Allegations, UNC was cited for failing to properly monitor the use of social media by student athletes. In response to the NCAA’s unprecedented actions in this case, universities across the nation have taken steps to limit, and in some cases, entirely prevent, athletes’ use of social media. These actions put schools in the precarious position of trying to restrict the First Amendment rights of their student athletes, most of whom are adults.

Some schools have stopped short of forbidding student athletes from using social media altogether, making mandatory monitoring a condition of team membership. Others have ventured even further into shaky legal ground by enforcing a total prohibition on social media use for all student athletes. Because the Supreme Court has made it clear that university students give up none of their First Amendment rights when they enroll, curtailing these rights leaves a university vulnerable to legal action from student athletes. It could be argued that banning student athletes from using social media rises to the level of a prior restraint on speech.

In the event of a legal challenge, universities will be forced to defend themselves in court and may end up paying damages. A more proactive approach might be to put an end to inappropriate incentives for student athletes, rather than taking questionable steps to prevent the athletes from telling anyone they are receiving them.

A special education teacher has been placed on paid administrative leave after a parent discovered he had posted derogatory pictures and comments about his students on Facebook. Jeremy Hollinger, who is employed by the Mobile (Alabama) County Public School system to teach special education at Eichold-Mertz Elementary School, posted the comments and pictures on his public Facebook page.

Celeste Dennis, who saw Hollinger's site, was upset enough to insist her son, a second-grader at Eichold-Mertz, be transferred out of the school. Although she says there were plenty of derogatory comments on the page, including posts about students soiling themselves and eating crayons, she says that one insult hit especially close to home. "It hurt. It genuinely hurt me, said Dennis."My son wears a helmet for seizures during P.E. He had a picture of himself with my son's helmet on making fun of him like that was some type of a joke."

Dennis responded to the cruel postings by reporting Hollinger to the school system and insisting that her son be transferred. The school was slow to take action against Hollinger, however, and he remained in his position at the school until after the incident caught the attention of the press. Initially, the school system refused to explain why Hollinger was still at his post. Nancy Pierce, the school's representative, initially declined to discuss the matter, saying, “Because it's a personnel matter, I can't discuss that with you. The appropriate measures were taken by our Human Resources Department."

However, on Tuesday, October 18, it was revealed that Hollinger had been suspended with pay as a result of the incident. In the meantime, Dennis hopes the suspension becomes permanent. "It takes a special type of person to deal with special children, and he is not that person," said Dennis. "I just want him out of there."

A federal court recently ruled in the infamous Indiana “slumber party lawsuit” we highlighted in 2009 (CLICK HERE). Two female students sued school officials following their respective athletic suspensions for posting sexually suggestive pictures of themselves online. Captured during a summer-break slumber party, the depictions displayed no indication of the subjects' academic or athletic affiliations.

U.S. District Chief Judge Philip P. Simon U.S. District Court for the District of Northern Indiana found in favor of the minor female plaintiffs. Remoteness of the girls' “guilty act” to their respective athletic and academic qualifications was the apparent lynchpin of the court's legal analysis.

The court's legal reasoning relied heavily upon that articulated by the U.S. Supreme Court in its 1969 landmark decision, Tinker v. Des Moines. Tinker involved a legal challenge by two students who were disciplined for wearing black armbands to school as a show of anti-Vietnam sentiment. An absence of any potential disruption within the academic arena was the main factor that clinched the case.

Judge Simon also assigned substantial significance to prior Pennsylvania precedent in the instant action. He cited the grave inherent dangers of permitting public school officials to reach beyond educational boundaries to exert undue influence in extracurricular matters.

In its final analysis, the court also noted the very vague pupil handbook verbiage that prohibits actions that “discredit” or “dishonor” the school or its students. This over breadth was found to be violative of students' Constitutional rights to free expression.

The court repeatedly deemed plaintiffs' postings as obscene absurdities. To its credit, however, it also noted that official sanctions based upon subjective judgments are precisely what First Amendment framers sought to prevent.

ACLU attorney Ken Falk is plaintiffs' legal counsel. Falk expressed personal pleasure with the precedential value of this case for filling an ever-widening legal void in today's high-tech communicative environment. He further posited that the ruling offers all public school officials a valuable lesson by delineating educators' permissible legal boundaries.

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.

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" »

The American Civil Liberties Union of Indiana has filed a lawsuit on behalf of two students who were suspended from athletic activities after their principal found sexually suggestive photos from a slumber party. In the lawsuit, the ACLU claims that Smith Green Community School Corporation and the Churubusco High School Principal, Mr. Austin Couch violated the students' rights by suspending them for out of school activities. The photos were posted to the student's MySpace pages.

According to the lawsuit documentation, the pictures were taken during a slumber party that occurred during the summer months. The students took photos of themselves kissing and licking a novelty lollipop and pictures of themselves wearing lingerie with dollar bills stuck within the clothing. There was no identification with the photos suggesting that the students attended the high school. The lawsuit states that the students were being humorous and that the actions were "irrelevant" to school functions.

After someone accessed, copied and supplied the photos to the principal, the principal suspended the students from all extracurricular activities for the school year. After parents spoke to the principal, the principal agreed to reduce their suspensions if the students attended several counseling sessions and apologized to the athletic board.

Although the school and principal stated they are unable to comment, they did release a statement stating that the pictures "caused a disruption within our athletic teams at the beginning of this year's sessions." The school states the students did not meet extracurricular expectations.

While the parents appealed the ruling, the students attended the counseling sessions so they could participate in fall activities. They also apologized for their behavior in front of the all male athletic board. The ACLU states that this was humiliating and embarrassing.

The ACLU states that this is only one case, out of many similar cases playing out across the country. The organization claims that private moments like these should stay there and out of school administrator's hands.

The school uses a code of conduct that states that the principal "may exclude any student athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubusco High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

The ACLU is hoping to classify the case as a class action suit, since many parents could be part of it. The lawsuit asks for the district to no longer be allowed to punish students for such behaviors and asks that the incident be expunged from the two student's records.

Continue reading "ACLU Files Lawsuit Over Slumber Party Photos" »