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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

In 2018, the town of Gibraltar, Wisc., banned food trucks after a family started vending on their own property outside their store. After IJ challenged that ban, the town replaced it with a new ordinance prohibiting food trucks from areas where brick-and-mortar restaurants operate. Unconstitutional economic protectionism? This week we got our answer: “I can reach no other conclusion than these ordinances look, swim, and quack like efforts to unfairly discriminate against mobile food establishments in favor of brick-and-mortar restaurants in downtown Fish Creek in the Town of Gibraltar.” Click here to learn more.

• Congress has the inherent power to issue subpoenas, but, says two-thirds of this D.C. Circuit panel, it has failed to pass a law giving it the power to have courts enforce those subpoenas, meaning the House of Representatives cannot sue to enforce its subpoena of former White House Counsel Don McGahn.
• The District Attorney of Middlesex County, Mass., may have lost her challenge to the federal government’s practice of arresting noncitizens in state courthouses. But she has joined the surprisingly lengthy roster of litigants whom First Circuit Judge Selya has compared to or contrasted with Rumpelstiltskin. So there’s that. 
• Members of New York’s 10th Street Gang, seeking revenge on rival 7th Street Gang, gather guns and go looking for trouble. Shooting breaks out and two innocent bystanders are killed. A member of the gang—convicted of aiding and abetting the murders by lending a .44 caliber handgun to another member—challenges the sufficiency of the evidence against him. Second Circuit: And he wins. It’s undisputed that the .44 malfunctioned and didn’t fire. No actus reus, no crime.
• Syrian man is involuntarily conscripted into the militia, where he undergoes basic training, performs guard duty, and does errands for superior officers. He flees to the United States, where he seeks asylum on the ground that he will be tortured if returned to Syria. Feds: We consider the government militia you were forced to join to be a terrorist organization, and we don’t grant asylum to terrorists. Third Circuit: That’s right. (Fortunately, he received a more restrictive “deferral of removal” under the Convention Against Torture.) 
• Does New Jersey’s ban on large capacity magazines violate the Second Amendment? Third Circuit: We already decided that it does not when we denied the plaintiffs’ motion for a preliminary injunction, so we’re bound by the law of the case and cannot reconsider. Dissent: Prudential doctrines shouldn’t trump constitutional rights.
• Third Circuit: Pennsylvania man, who is African American, provides a ride home to a woman who states she is afraid of her drunk, abusive boyfriend. And with good reason. Upon arrival, the boyfriend hurls racial epithets, brandishes a knife, threatens to “chop up” the girlfriend, and jumps on the hood of the moving car. The terrified driver calls 911, who instruct him to convey his interior/exterior passengers to a police checkpoint. Naturally, the driver is arrested on suspicion of drunk driving, despite passing a breathalyzer test, and is charged with multiple…y’know what, just grab a stiff drink and read the case.
• Does keeping a death-row inmate in solitary confinement for 33 years violate the Eighth Amendment prohibition on cruel and unusual punishment? Third Circuit: Going forward? Yes. But qualified immunity in this case.
• Third Circuit: Porno Producers Partially Prevail in Push to Prevent Paperwork Penalties 
• Here’s one for the procedure nerds: Partnership sues several pharmaceutical companies as a qui tam relator under the False Claims Act. When one of the partners leaves, that change amounts to the creation of a new partnership. Is the lawsuit now barred by the Act’s first-to-file bar, which prevents a new person from intervening or bringing a related action? Third Circuit: Clever, but no.
• Salvadoran man seeks asylum, alleging that if he is sent back to El Salvador, he will be killed by MS-13 because his sister refused to date a local gang leader. Fourth Circuit: “Like offensive linemen on a football team, standards of review are not glamorous or exciting. But that does not mean they are unimportant.” And under the “substantial evidence” standard, this guy is hosed. Dissent: With their “nonsensical” and “cursory” analysis below, “the agencies left their blind side wide open.”
• The City of Austin allows digitized billboards for “on-premises signs,” i.e., signs that advertise stuff at the locale of the sign, but prohibits digitization of “off-premises signs.” Is this a content-based distinction that violates the First Amendment? Fifth Circuit: It is, notwithstanding Justice Alito’s suggestion in Reed v. Town of Gilbert that such distinctions are content neutral. 
• Fifth Circuit: “The United States prosecuted and convicted Thaddeus Beaulieu for felony criminal contempt. The Government concedes that it committed prosecutorial misconduct but asks us to affirm Beaulieu’s conviction anyway. We refuse and instead vacate the judgment.”
• Maximum Security finished first at the 145th running of the Kentucky Derby, but his owners came home without the $1.5 million prize. Racing stewards disqualified the horse for interference. Sixth Circuit: Although the racing stewards are appointed by a government agency, we need not decide whether the procedures they applied comported with due process. The owners had no protected property interest in a prize they had not yet won.
• When an interaction between Black Hebrew Israelites, a Native American activist, and a group of high school students became the story of the hour, Representative Debra Haaland and Senator Elizabeth Warren Fired off some tweets. Almost two years later, the Sixth Circuit affirmed the dismissal of the students’ defamation claims. Because the Congresswomen tweeted their tweets in the course of their government employment, they are protected by sovereign immunity.
• There is no dispute that the defendant—a Catholic school—would be protected from suit by the First Amendment if it had simply fired the plaintiff because of his sexual orientation. But does the First Amendment bar the plaintiff’s claim that the school subjected him to a hostile working environment? No, holds the Seventh Circuit, reasoning that religious employers can control their employees through hiring and firing decisions and need not subject them to abuse. 
• Tennessee man, unhappy to discover the Red Cloud Indian School is Catholic, posts a video to YouTube (and sends it to a school administrator) showing him taking a large, machete-like knife to the throat of a stuffed frog and saying he was coming to clean house. He then packs his truck with a machete, handgun, and a 5-foot-long samurai sword and drives the 1,000 miles to the South Dakota school. He’s arrested in the parking lot, convicted of a weapons offense. Sentencing guidelines say 18–24 months; he’s sentenced to 60 months. Eighth Circuit: Which is fine. 
• Pro tip from the Eighth Circuit: If you wish to appeal a two-year injunction enforcing a non-compete clause, be sure to try to stay the order so your case doesn’t become moot while your appeal is pending.
• Allegation: TSA screener at Minneapolis–St. Paul airport manhandles man on crutches, causing him to fall and get injured. Can the man sue for battery and negligence? Eighth Circuit (over a dissent): Yes. TSA screening personnel qualify as “investigative or law enforcement officers” under the Federal Tort Claims Act, which means no sovereign immunity and the man’s suit can go forward. (Circuit split watch: The en banc Third Circuit agrees, the Eleventh Circuit disagrees.)
• Four men are convicted of sending $10k to a Somali terrorist group. The feds had tapped one of the men’s phones pursuant to a warrant that relied on info from an NSA program collecting phone metadata in bulk (a program Edward Snowden made public and the NSA no longer has authority to use). Ninth Circuit: There are significant Fourth Amendment concerns here, and the bulk metadata collection violated the Foreign Intelligence Surveillance Act. But we won’t suppress the evidence, and we will affirm the convictions.
• Apple retail-store employees must undergo exit searches at the end of their shifts, which usually take 5–20 minutes to wait for and undergo. Which is time they must be paid for, according to the Ninth Circuit. 
• Parents of Hindu children in the California public schools claim that the 6th and 7th grade curricula discriminate against Hinduism. For example, they refer to a sacred text as an important piece of literature in Ancient India and describe Hinduism as a “culture that emerged as a belief system.” Ninth Circuit: The materials “reflect careful crafting … to achieve a balanced portrayal of different world religions.” No constitutional violations here.
• Do speakers have a right to speak from traffic medians? Tenth Circuit: Yes! Concurrence: But maybe not if the median is really narrow.
• University officials: Sure, the plaintiff alleges that we falsely ginned up charges that got him indicted for racketeering, but those charges were dismissed as time barred. He can only sue for malicious prosecution if he beat the charges on the merits! Eleventh Circuit: No, we’re pretty sure he can sue for malicious prosecution anyway.
• Two-thirds of this Eleventh Circuit panel agrees that the Eighth Amendment allows prison officials to take into account the fact that a new Hepatitis C treatment is “really expensive” when deciding whether all prisoners with Hep C will get it immediately. 
• Can the son of the former Prime Minister of Albania show a book’s author and publisher had actual malice in depicting him as connected to the “Albanian mafia” as part of a wild story of gun-running later made into a Jonah Hill movie? No way (or, as the Albanians say, jo aspak), says the Eleventh Circuit, in part because of “the many prior published reports” making similar allegations. 
• An Alabama man’s attempt to bring a stray dog to a shelter without showing anyone his ID turns into a melee with police officers, multiple tasings, and a final, surprise gunshot. A “gothic story,” says the Eleventh Circuit, in which qualified immunity is unwarranted.
• And in cutting-edge mandamus news, the D.C. Circuit finds that former Secretary of State Hillary Clinton (though not her aide Cheryl Mills) is entitled to a writ of mandamus to prevent her deposition in connection with a FOIA case and (sitting en banc) that former National Security Advisor is not entitled to a writ preventing the district court from holding a hearing about the government’s motion to dismiss his prosecution.
• And in en banc news, the Tenth Circuit has voted to rehear its earlier ruling upholding a federal rule defining bump stocks as illegal “machine guns.” The Ninth Circuit, however, will not reconsider its decision requiring a warrant for most forensic searches of a phone at the border. Six judges dissent, warning that this “makes our borders far more porous and far less safe.”

Friends, earlier this summer, the U.S. Supreme Court granted IJ a victory in Espinoza v. Montana Department of Revenue, holding that states cannot disqualify private schools from a state subsidy program solely because they are religious. This week, IJ filed a new case on behalf of Dennis and Cathy Griffin against the state of New Hampshire, which prohibits so-called “tuitioning towns”—towns that are too small to operate their own schools and instead pay student tuition at nearby private or public schools—from providing assistance to families that wish to send their kids to religious schools. Learn more here.

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An anti-gun initiative in Washington, D.C., that was backed by Mayor Muriel Bowser is attracting criticism because it has focused on predominantly black parts of the city. The controversy over the program, which prosecutes residents for violating the federal ban on firearm possession by people with felony records, illustrates the tension between two major items on the progressive agenda: strengthening gun control and reducing racial disparities in law enforcement. Those goals are hard to reconcile because enforcing firearm laws has a disproportionate impact on African Americans.

Originally that was by design. Modern gun control laws have their roots in Southern states’ efforts to disarm freedmen, depriving them of a constitutional right that Chief Justice Roger Taney, author of the Supreme Court’s infamous 1857 decision in Dred Scott v. Sandford, warned black people would enjoy if they were recognized as citizens.

More recently, fear of armed black men has driven white politicians to support new gun restrictions. California’s Mulford Act, a 1967 law backed by then-Gov. Ronald Reagan (and the National Rifle Association), responded to the rise of the Black Panthers by banning the open carrying of loaded firearms. According to The Saturday Night Special, a 1973 book by investigative journalist Robert Sherrill, the federal Gun Control Act of 1968, passed at a time when politicians were alarmed by urban riots, aimed to “shut off weapons access to blacks, and since [legislators] probably associated cheap guns with ghetto blacks and thought cheapness was peculiarly the characteristic of imported military surplus and the mail-order traffic, they decided to cut off these sources while leaving over-the-counter purchases open to the affluent.”

That law included prohibitions on gun sales to and purchases by several broad classes of people, including anyone who had been convicted of “a crime punishable by imprisonment for a term exceeding one year,” meaning almost all felonies. The current federal ban, which applies to possession as well as sales and purchases, carries a penalty of up to 10 years in prison.

On the face of it, the D.C. Code, which also prohibits gun possession by people who have been convicted of felonies, is even more severe, prescribing the same maximum penalty along with a mandatory minimum of one year. If the felony was violent, the maximum penalty is 15 years and the mandatory minimum is three years. But according to the U.S. Sentencing Commission, the average federal sentence for “felon in possession of a firearm offenders” is 64 months. Some of those defendants got enhanced penalties under the Armed Career Criminal Act, which applies to offenders with three prior convictions. But even excluding those defendants, the average sentence was nearly five years.

The decision to charge defendants in federal court, which in D.C. is made by Acting U.S. Attorney Michael Sherwin, therefore exposes them to “harsher penalties compared to similar convictions in local court,” The Washington Post notes. So when it turns out that black defendants are especially likely to be charged in federal court, progressives tend to get upset.

Bowser, who is herself African American, presumably was not driven by racial animus when she backed the D.C. initiative, which aims to reduce gun crimes by disarming and locking up people thought likely to commit them. But the racially disproportionate results were predictable, since one-third of African-American men have felony records (compared to 8 percent of the general population) and police and prosecutors were apt to concentrate on high-crime, predominantly black neighborhoods.

That is what happened, as federal prosecutors recently acknowledged. Instead of targeting illegal gun owners throughout the city, as originally advertised, the program has focused entirely on three police districts that overlap with Ward 5, which is 64 percent black; Ward 7 (92 percent black); and Ward 8 (89 percent black). By comparison, blacks represent 44 percent of the District’s total population.

The program “exclusively—and now we know, by design—targets District residents of color via specific police districts,” D.C. Council Member Charles Allen complained in a press release. “It is one more policy defaulting to harsh penalties on Black residents whose neighborhoods have historically been underinvested in and overpoliced. We must end this policy. It is taking us in the wrong direction.”

D.C. Attorney General Karl Racine, an elected official who enforces the D.C. Code, was likewise appalled by the “discriminatory application” of federal gun charges. According to the Post, D.C. Police Chief Peter Newsham said “he was unaware the initiative was being implemented in only certain parts of the District.”

Sherwin, the acting U.S. attorney, “criticized the program as implemented, saying he began a review when he took over the office in May and ended the program’s geographic focus last week.” While denying that the program is racially discriminatory, Sherwin said the “most equitable” approach would to make prosecutorial decisions based on each defendant’s criminal history, including prior gun charges and convictions for violent crimes, rather than the neighborhood where he happened to be arrested. The program, he said, should be “designed to charge the most violent offenders with the most significant federal charges.”

While a ban on gun possession by “violent offenders” might make sense, assuming their crimes were recent enough to suggest they still pose a threat to public safety, both the federal and D.C. laws sweep much more broadly than that. People convicted of violent crimes long ago—a youthful bar fight, say—can still be prosecuted for felonies if they keep guns for self-defense. And people convicted of nonviolent felonies, including drug offenses, also lose their Second Amendment rights.

Keeping in mind that one-third of black males in the United States have felony records, this policy permanently deprives 7 million African-American men of the constitutional right to armed self-defense—a right that is especially important in neighborhoods like the ones federal prosecutors have been targeting in D.C.—even when they pose no plausible danger to the general public. Within the District, we are talking about something like 150,000 black men who, should police catch them with a firearm, could be sent to prison for a year if they are prosecuted in D.C. court or five years if if they are prosecuted in federal court.

Is every one of these men a menace to public safety? Sherwin implicitly concedes that the vast majority are not. But the distinction between the unauthorized gun owners who should go to federal prison and the unauthorized gun owners who should not rests entirely in his hands. D.C. residents who illegally arm themselves for self-protection just have to put their faith in his ability to identify “the most violent offenders.”

This is what gun control looks like in practice. When the New York Police Department tried to reduce violent crime by stopping pedestrians, questioning them, and patting them down for weapons, the overwhelming majority of the people subjected to such treatment were black or Hispanic. And when they were frisked, which happened about half the time, police almost never found guns and rarely discovered weapons of any kind. That track record contradicted the pretense that the pat-downs were based on the “reasonable suspicion” that the Supreme Court says the Fourth Amendment requires. But according to Michael Bloomberg, a leading gun control advocate who was New York’s mayor when these stops skyrocketed, the whole point was not to find guns but to deter young men from carrying them to begin with.

Given these realities, it is more than a little puzzling that people who are concerned about racial disparities, potentially deadly police encounters, and the life obstacles created by felony records would advocate new gun controls and stronger enforcement of existing restrictions. If you worry about those problems, why support policies that are bound to make them worse?

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“Plea bargains start at 10 years in prison. Compared to other criminal cases that can take a year or longer, may result in a few years in prison, costs hundreds of man-hours and still only result in a single arrest, this is a significant return on investment. Mathematically, it only costs $2,500 per arrest during this operation! Considering the high level of potential offense, there is a meager investment that pays huge dividends.”

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Hispanic parents, like other parents, have concerns about sending their kids back to school. According to a poll by Latino Decisions, a firm founded by a Biden campaign operative, 59 percent of Hispanic households are “very concerned” that their kids could be exposed to the coronavirus at school; 52 percent expect to have technical troubles with online learning, 34 percent do not have access to high-speed Wi-Fi, and 36 percent “do not have anyone who can stay home” to supervise their children’s online classes.

Although the data points to real difficulties for Hispanic families, the firm’s proposed solution amounts to the usual big-government formulas that can exacerbate problems instead of solving them. Angela Gutierrez, an analyst at Latino Decisions, writes that the survey shows the need for more federal and state school funding, “so that students and teachers can make the most out of teaching and learning in this unique situation.”

Just as higher health care spending per capita has not always translated into a better response to the pandemic, higher spending in education does not necessarily mean better results. According to the Reason Foundation’s Corey D’Angelis, the U.S. spends $15,424 per child in the school system every year. Injecting more money into centralized school bureaucracies won’t do much in itself to help working Hispanic parents who can’t watch over their kids as they learn from home, or who can’t afford the technological costs of remote schooling. But funding the families directly and letting them choose the schools their children attend could be a game changer.

Private and charter schools have adapted better to distance learning during the pandemic than their district-run counterparts, the data suggests. A survey by Ipsos Public Affairs found that, in terms of the introduction of new content, parent satisfaction, and weekly contact with teachers, private and charter schools proved far nimbler in adjusting to the new reality than the public sector. According to a Common Sense Media poll, 66 percent of privately educated children had “connected with their teacher once a day or more” versus only 31 percent of public school attendees. 

In part, this divide reveals how private sector innovators had advanced in distance learning long before the pandemic arose. For example, institutions such as cyber charter schools already had years of experience in delivering a fully online education to students. This is an ideal option for parents who might prefer online learning yet struggle with its financial or technological components. As the Commonwealth Institute’s Marc LeBlond writes in the case of Pennsylvania, the state’s 15 cyber charter schools “provide all the required equipment for learning, plus a stipend for broadband internet access.” And, contrary to the claim that such assistance requires more funding, charter schools in Pennsylvania receive 27 percent less per pupil on average than district-run schools.

The main obstacle to increased enrollment in cyber charter schools is not a lack of funding or insufficient demand from families. It is lobbying by teachers unions intent on using their political clout to avoid competition. This has been true not just in Pennsylvania but in California, North Carolina, Alaska, and Oregon, where 1,600 students were prevented in March from enrolling in a cyber charter school. 

And families who do want their children to continue their educations in person? In several states with large Hispanic communities—California, Florida, Illinois—powerful teachers unions have opposed reopening schools in many districts. Sometimes that is linked to other items on the union agenda, as when the pressure group Demand Safe Schools calls for a “massive infusion of federal money to support the reopening” and a “moratorium on new charter and voucher programs and standardized testing.”

Yet school choice programs are just what many Hispanic families need if they are to send their kids to good private or charter schools while brick-and-mortar academies remain closed. They could even ease fears about the coronavirus, since parents could choose schools with smaller class sizes and more stringent health measures.

Latino Decisions has identified some of the challenges that Hispanic families must overcome in these difficult times. But the solution is not to strengthen the centralized bureaucracies that run traditional public schools. Sen. Rand Paul (R–Ky.) has a better idea: the SCHOOL Act, which would “allow federal funds for K-12 education to follow the eligible child, learning in person or remotely, to the school of their choice.” That would go a long way toward giving Hispanic parents—and all parents—true power over their children’s future.

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Woke. Available Wednesday, September 9, on Hulu.

In a dreary age in which we’re battered on one side by authentic police mayhem and on the other by puerile PC paladins, Hulu’s new comedy series Woke is little short of a miracle. It manages to carefully and very funnily thread a needle through a political and social straitjacket.

Created by cartoonist-rapper-Michael-Jackson-impersonator Keith Knight and Barbershop screenwriter Marshall Todd, Woke is based (with a lot fewer hallucinations, I’m guessing; we’ll get to those in a minute) on Knight’s cartooning career.

His alter-ego is Keef Knight (Lamorne Morris, New Girl), who draws a strip called Toast and Butter for a dying and penniless local paper. But his life is looking up. “The last time you’re going to see broke Keef Knight,” he brags to his roommates as he heads off to sign a syndication deal that will launch him into big-league, big-money syndication.

Toast and Butter is, by Knight’s own description, “a comic strip about bored breakfast food,” and he resents complaints that it’s not politicized enough. “Why is it that people of color are always having to stand for something or say something in our work?” he snaps at one (black) editor. “You know, I’m just a cartoonist.”

That changes abruptly when Knight is manhandled by (white) cops who mistake him for a mugging suspect. The aftermath: Inanimate objects spring to life to talk to him. Bottles. Mailboxes. Trashcans. His own cartoons. A lot of them agree with the editor and want him to weaponize his artwork, though not all of them are channeling Van Jones. Advises a bottle from a convenience-store beer cooler: “Did you know malt liquor makes black people impervious to bullets?”

The litany of street wisdom starts to alert Knight to some things he hasn’t noticed, including that his new syndicate has noticeably lightened his skin in his publicity photo, and his (black) neighborhood barber has been replaced by (white) hipsters who charge 10 times as much but make everybody look like Russell Brand. One of Knight’s roommates makes a quick diagnosis: “This nigga woke!”

The problem is that Knight’s wokeness looks, to many people, more like craziness, particularly at his highly publicized appearance at a comic-book convention where, goaded on by mocking pens and pencils, he kickboxes with a big cardboard cutouts of himself and his characters even tries to eat them. Gifs of him screaming “Fuck toast and butter!” pop up all over the internet. Knight’s career is over before it’s begun. “You’re gonna be turning tricks in the hay for vegan sliders,” gleefully exclaims one of his hallucinations.

Knight the cartoonist’s dawning awareness of a racism he’s willfully ignored all his life is clearly the major thrust of Woke. But Knight the producer keeps his comedy from turning into a tirade by opening fire on any target of opportunity, particularly the affections of white liberals. One hires him to come to a cocktail party so her friends can speak to an actual black person, touch his hair, snap selfies with him and introduce themselves with the breathless proclamation that “I don’t think O.J. did it!”

Many of the comic balls are kept in the air by Knight’s roommates, the (black) horndog hustler Clovis (Chicago comic T. Murph) and (white) professional sperm donor Gunther (Blake Anderson, Workaholics), who’s also working to market cocaine as a powdered energy mix. Their sometimes goofball and sometimes cynical takes on Knight’s troubled new consciousness are flat-out hilarious. When Knight, inspired by his experience as a paid attraction at the cocktail party, draws a strip titled “Black People For Rent,” Clovis promptly puts it on T-shirts.

Knight is outraged. “Blackness should not be a commodity,” he insists. Shrugs Clovis: “It’s the original commodity.” The ability to find that kind of humor in 2020 makes me think we may survive it yet.

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Just read an interesting Aug. 19, 2020 opinion of N.Y. State Education Department Interim Commissioner Betty A. Rosa (just posted on Westlaw), Appeal of N.R. N.R. was an eight-grade student who was suspended for a month because of what he searched for on his school-issued computer and the key legal analysis:

[Valley Central School District’s] letter charged that, on or about November 19, 2018, the student “searched for inappropriate topics” on his school-issued computer (the “Chromebook”). The notice of charges for the long-term suspension hearing identified the following searches, which the district alleged were inappropriate:

• What temperature does gasoline freeze at Fahrenheit;
• worst WWI gun;
• I will kill every drug addict;
• funniest ways to die;
• what’s the sharpest knife;
• nitroglycerin explosion;
• is nitroglycerin really that unstable;
• the fastest gun firing rate;
• mother of all bomb explosion;
• what is the sign that death is near;
• is lidocaine legal; [and]
• kill shot ….

In a written recommendation dated December 20, 2018, the hearing officer recommended that the student be found guilty of the “charged misconduct by making inappropriate searched on his school-issued Chromebook.”

[1.] I agree with petitioner insofar as the district was limited to charging the student with misconduct for the specific search terms identified in the notice. At the hearing, certain search terms were discussed which were not listed within the written notice, such as “claymore” and “biggest european sword.”

[2.] The district also implied at the hearing that the student violated district policy because some of his searches were unrelated to his schoolwork, rather than inherently inappropriate or violent in nature. The Commissioner has held that a district must be held to the language of the charges it chooses to pursue against a student. While it is unclear from the record if the hearing officer, superintendent, or respondent found the student guilty based upon any search terms that were not identified in the notice of charges, any such reliance would have been improper. Indeed, at the hearing, the middle school principal admitted as much when he indicated that the district chose not to charge the student with misconduct for certain search terms (e.g. “worst poker hand”) that were not related to the student’s academics.

[3.] Education Law §3214(3)(a) permits the suspension of “[a] pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.” … I cannot find that [the student’s] searches violated either Education Law §3214 or the district policies identified in the notice of charges….

I agree with respondent that several of the terms for which the student searched—e.g. “the fastest gun firing rate,” “nitroglycerin explosion,” and “kill shot”—appeared violent on their face and warranted further investigation. At the hearing, however, the student testified as to his underlying reasons for conducting the searches, and none of these reasons were violent in nature. For example, the student testified that he searched for “kill shot” because he was looking for the lyrics to a popular song titled “killshot.”

Similarly, the student testified that he searched for “nitroglycerin explosion” because he wanted to understand how nitroglycerin can be used as a medication for heart conditions when it was also used as an explosive during the construction of the transcontinental railroad. Indeed, the student’s search history revealed that he had also searched for “what was nitroglycerin used for?” in close proximity to the “nitroglycerin explosion” search. The district notably did not submit any evidence to rebut the student’s testimony during the hearing. Thus, there is no evidence in the record establishing that the student posed an actual threat of violence or had any violent intent when conducting the internet searches listed in the notice of the charge.

Furthermore, the record reflects that the student conducted the “hard reset” search on November 2, 2018, prior to the date upon which he engaged in the other search terms to which respondent objects. Thus, it could not have been performed, as respondent implies, to conceal the student’s search history. Respondent did not otherwise explain how the “hard reset” search was improper, nor did it allege or prove that the search violated any district policy.

Moreover, respondent failed to prove by competent and substantial evidence that the mere act of searching for such terms—regardless of the student’s intent—endangered the safety, morals, health, or welfare of others. The student’s search history was only discovered after respondent decided to examine the student’s Chromebook for reasons unrelated to student discipline. Notably, there is no evidence that the student informed anyone of his internet searches or that anyone at the school would have been aware of the student’s search history if not for the district’s review of such search history. Nor is there any evidence in the record that any students or faculty members became aware of the student’s search history after the district’s review of the student’s Chromebook, except for those individuals involved in bringing the instant disciplinary charge against the student.

Thus, I find that the student’s conduct, which was unknown prior to its discovery and which would not foreseeably cause any disruption to school operations or activities, was not conduct for which the district could properly suspend the student under Education Law §3214(3)(a).

The analysis seems quite right to me. A school might be reasonable in doing some investigation based on such student searches, if it happens to learn about them—but not in simply suspending the student.

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