Posts Tagged ‘zero tolerance’

A NYT school-bullying story comes under scrutiny

Last month the New York Times ran a front-page story about the plight of a Fayetteville, Ark. high school student named Billy Wolfe, who had been “a target of bullies for years”, physically and verbally brutalized by fellow students despite his family’s repeated pleas to a seemingly heedless school district for his protection. (Dan Barry, “A Boy the Bullies Love to Beat Up, Repeatedly”, Mar. 24). Billy’s parents had sued teens they said had harassed their son, and were also considering legal action against the school district.

The article generated a big reaction, especially after young Wolfe himself appeared on the Today show to discuss his plight. Most observers seemed to agree that the harrowing tale lent credence to the whole idea of using lawsuits as a way of responding to bullying in schoolyards, Facebook, etc. — an idea that, coincidentally or otherwise, is the subject of an increasingly visible campaign these days. Even as level-headed an educational observer as Joanne Jacobs wrote on her blog, “Normally, I’m anti-lawsuit, but this may be the only way to bully the bullies and the principal to crack down.” Huffington Post writer Jonathan Fast cited the article as evidence that schools should adopt “zero tolerance” policies on bullying. Some of the many other blog reactions are assembled here (e.g.: Marcotte, Greenfield, DadTalk, The Common Room).

Could there be another side of the story, you may wonder? Well, as a matter of fact, there is. To find it you need to consult the local paper, the Northwest Arkansas Times (Scott F. Davis and Dustin Tracy, “Who’s the bully?: Police, school records raise questions about claims made by Fayetteville High student”, Apr. 3)(via Childs). One may argue about whether Wolfe’s own alleged exploits in victimizing other kids, as catalogued in the NWAT article, will or should affect the disposition of his family’s legal claims. What seems beyond dispute is that the NYT’s story would have been very different in the emotional reactions it evoked — and much less effective in promoting the particular “cause” it was advancing — had it included that other side of the story.

More/updates: Word Around the Net, Val’s Bien, Pennywit @ Likelihood of Success, Joanne Jacobs, Crime & Consequences, Kierkegaard Lives. The Arkansas Democrat-Gazette notes that Arkansas already has an unusually strong anti-“cyberbullying” law which “requires school districts to adopt discipline policies banning harmful and disruptive online behavior”, despite misgivings from civil libertarians about official penalties based on students’ out-of-school speech: Evie Blad, “School bullies move online; rules tricky to write, enforce”, Apr. 6. And Scott Greenfield minces no words:

…what is the New York Times thinking? To have its knees cut off by its Northwest Arkansas namesake is humiliating, but to be shown up as deceptive fundamentally undermines its credibility. Without credibility, the Times is just a dog-trainers best friend and a tree’s worst nightmare. …

The failure of the New York Times to present a full and accurate account of the Billy Wolfe story is disgraceful and unacceptable. … If you’re going to put an article on the front page with a big picture, don’t blow it. The Times did. They should be ashamed.

And in our comments section, Ole Miss lawprof Paul Secunda provides the Wolfe family’s response to the NWAT coverage. Update Apr. 24: Jay Greene weighs in.

Contraband candy student reinstated

New Haven, Ct. honors student Michael Sheridan, suspended and removed from his elected class post after being caught buying a bag of Skittles candy from a fellow student in violation of his school’s policy against empty-calorie food, will be reinstated, the school says. (AP/Google). Ohio law blog The Briefcase (Mar. 13) has more, along with a link to this PTO Today article detailing how a federal law mandating school “wellness policies” has increased the pressure on states and local schools to adopt anti-snack measures.

November 26 roundup

All-automotive edition:

  • Court won’t unseal settlement arising from $105 million Aramark/Giants Stadium dramshop case for fear girl’s father will try to get his hands on money [NJLJ,, Childs; earlier]
  • Great moments in insurance defense law: you mean it wasn’t a good idea to infiltrate that church meeting to investigate the crash claim? [Turkewitz first, second posts]
  • Columnist Paul Mulshine rejoices: Ninth Circuit decision “if it stands, will lead to the end of the SUV as we know it” [Newark Star-Ledger]
  • Is it unfair — and should it be unlawful? — for insurers to settle crash victims’ claims too early? [Maryland Injury Lawyer Blog]
  • If Ron Krist prevails in shoot-out of Texas plaintiff titans, he vows to have sheriff seize John O’Quinn’s Batmobile [American Lawyer; see also Ted’s take earlier]
  • In much-watched case, Australian high court by 3-2 split upholds highway authority against claim defective bridge design was blameworthy after youth’s dive into shallow water [RTA NSW v. Dederer, Aug. 30]
  • Redesigning Toyota’s occupant restraint system? Clearly another job for the Marshall, Texas courts [SE Texas Record; Point of Law; more]
  • Bench trial results in $55 million verdict against U.S. government after Army employee on business runs red light and paralyzes small child [OC Register]
  • Vision in a purple Gremlin: her Yale Law days shaped Hillary in many ways [Stearns/McClatchy]
  • Zero tolerance for motorists’ blood-alcohol — are we sure we want to go there? [Harsanyi, Reason]
  • Driver falls asleep, so of course Ford must pay [two years ago on Overlawyered; much more on our automotive page]

Stick figure shooting stick figure with water gun

If the Cape May, N.J. school district was really going to punish a 7-year-old just for making a drawing of such a thing, with no actual water gun in sight, shouldn’t maybe the punishment have been to make him draw a stick figure of a little boy getting an overly-harsh suspension? (Zincavage, Oct. 21; Charles Sykes, “I Have Zero Tolerance for Zero Tolerance Policies”, American Thinker, Oct. 30).

Butter knife expulsion

“Amber Dauge was by all accounts a good student at Goose Creek High School” in South Carolina, until the fateful toast-assistive implement got her busted under the school’s zero-tolerance-for-weapons policy. (Chris Francescani, “Expelled for Possession of a Butter Knife”,, Oct. 22). See Oct. 23-24, 1999 (knife to cut cake), Aug. 25, 2003 (bread knife). Related: May 2, 2005.

August 22 roundup

  • Criminal charges dropped against Oregon 13-year-olds over fanny-swatting in school corridors [, Malkin, and AP; earlier]

  • Elasticity of “medical error” concept: Medicare will stop paying hospitals for treatment of “reasonably preventable” injuries that happen in hospitals, such as patient falls — we all know those are preventable given enough duct tape [NCPA, Right Side of the Rainbow; and before assuming that bed sores invariably result from negligent care, read this](more: Turkewitz)

  • Yale University Press beats back libel suit in California court by Muslim charity over allegations in book scrutinizing terrorist group Hamas [Zincavage]

  • Law firms, including Philadelphia’s senatorially connected Kline & Specter, already advertising for clients following Mattel toy recall [Childs]

  • First class action against RIAA over its scattershot anticopying suit campaign [P2PNet]

  • Four Oklahoma inmates claim copyright to their own names, demand millions from warden for using those names without permission, then things really start getting wild [UK Telegraph and TechDirt via Coleman]

  • UCLA’s Lynn LoPucki, scourge of corporate bankruptcy bar, has another study out documenting soaring fees [WSJ Law Blog]

  • Man who knifed school headmaster to death is expected to win right to remain in Britain on grounds deporting him would violate his human rights [Telegraph]

  • Among targets of zero tolerance bans: jingle of ice cream trucks in NYC, screaming on Sacramento rollercoasters []

  • Does California antidiscrimination law require doctors to provide artificial insemination to lesbian client against religious scruples? [The Recorder]

  • Alabama tobacco farmers got $500,000 from national tobacco settlement, though fewer than 300 acres of tobacco are grown in Alabama [five years ago on Overlawyered]

June 21 roundup

Ignoring Limits on Harassment Liability

Back in 1999, in Davis v. Monroe County Board of Education, the Supreme Court laid down a test for when sexual harassment rises to the level of “discrimination” for purposes of Title IX, the federal law banning sex discrimination in schools. Recognizing the fact that students frequently insult and tease one another in ways that would be intolerable in the workplace, the court set the bar higher for plaintiffs suing schools rather than employers. Instead of having to show just that harassment was “severe or pervasive” enough to create a “hostile or offensive environment,” as employees do, students have to show that harassment was severe and pervasive enough to interfere with access to an education.

Oddly, this protection against lawsuits has been overlooked not just by some lower court judges, but also by the very schools that benefit from it. In Jennings v. University of North Carolina, the Fourth Circuit Court of Appeals is rehearing en banc a recent panel decision which ruled 2-to-1 against a harassment claim based on inappropriate sexual discussions between a male coach and female athletes, which the plaintiff witnessed.

The panel majority argued that the conduct was not “severe or pervasive” enough to create a “hostile environment,” since the discussions were seldom aimed at the plaintiff. (Courts have typically given little weight to such “second-hand harassment”). The dissent argued that the conduct was severe or pervasive enough to create a hostile environment. The University seems not to have disputed that the “severe or pervasive” standard applied, or that the plaintiff could prevail merely by showing the existence of a “hostile environment,” even though other courts have recognized that harassment of students by school employees must be both severe and pervasive enough to interfere with access to an education.

But the standard for harassment claims against schools is more exacting, by design. In the higher education context, there are additional reasons for a more demanding standard. As Justice Kennedy observed in his dissent in the Davis case, the lower courts have repeatedly invalidated college harassment codes on First Amendment grounds. Most of the cases Justice Kennedy cited involved codes that banned speech that creates a hostile environment, much like workplace harassment law.

While a single offensive utterance doesn’t create a hostile work environment all by itself, a complainant can allege a hostile environment based on the offensive utterances of many different speakers, even if none of them individually make many offensive statements or intend to create a hostile environment. That effectively forces many employers to adopt “zero tolerance” policies banning racist or sexist speech.

By contrast, the Fourth Circuit’s own ruling in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), prevented a university from prohibiting racist and sexist student speech that allegedly created a “hostile and distracting learning environment.”

Moreover, students routinely have R-rated discussions in college dorm rooms that might give rise to a sexual harassment claim under the PG-rated standards of the workplace. As the Eleventh Circuit observed in Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987), “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.”

By relying on workplace standards, the university may well lose a case it would otherwise win. As a result, colleges in the Fourth Circuit may end up having to police private sexual conversations among students in ways that are difficult to enforce, especially if the full Fourth Circuit rejects the panel’s reasoning and treats comments overheard by a plaintiff, but not aimed at her, as harassment.

Caffeine as “drug”

It’s one of the premises of the anti-fizzy-drinks campaign (and presumably, after that, the anti-coffee and tea campaigns): when your kids drink Coke or Pepsi, they’re ingesting (shudder) a drug. Is it being taken seriously? Well, caffeine is now turning up as a prohibited substance in school zero-tolerance policies. (van Bakel, May 26). Can suspensions for possession of Dr. Pepper be far behind?

Compiling a list of annoying people

That was apparently all it took to get an eighth-grader thrown out of East Central Junior High in Stronghurst, Ill. Naturally, it’s a zero-tolerance case: “In the post–Columbine massacre environment, [superintendent Ralph] Grimm said it is appropriate to err on the side of caution in these circumstances.” The student also faces possible criminal charges of disorderly conduct. (Craig T. Neises, “Student faces discipline over ‘list”, Burlington (Ia.) Hawk Eye, Nov. 30)(via Taranto)(more zero tolerance).