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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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New York City residents still dependent on public schools received good-ish news this week. The teachers’ union—which threatened to strike unless the city met its demands for COVID-19 precautions—finally came to an agreement with Mayor Bill de Blasio and Schools Chancellor Richard A. Carranza. Under the deal, union leaders get to say they protected their members’ interests, while city officials get to claim that schools are safer than ever. And parents get to figure out what to do with their kids during unplanned days of idleness as the beginning of classes is pushed back a week and a half.

“Under the terms of the agreement, all New York City public school buildings will remain closed to students until Sept. 21, while final safety arrangements are completed, including the assignment of a school nurse to every building, ventilation checks and the presence of sufficient protective and cleaning supplies,” boasted the United Federation of Teachers (UFT) labor union. “The decision on whether to reopen a building to students will be based on the UFT 50-item safety checklist, including social distancing of student desks, the availability of masks and face shields, and a room-by-room review of ventilation effectiveness.”

“This is a great day for every public school student in New York City,” insisted de Blasio. “We face a return to school unlike any in our city’s history, but New Yorkers have made it possible because of their extraordinary work fighting back COVID-19. Our agreement puts the health and safety of our 1.1 million students, teachers, and school staff above everything else.”

The announcements resolved weeks of uncertainty for students and parents that saw the UFT threatening to strike as recently as the day before the deal was finalized. Families counting on the public schools for their children’s education had no way to know if they were actually going to get any education in return for the $25,000 that New York City schools extract from taxpayers and spends per pupil every year.

The UFT isn’t alone in its brinksmanship. Unions from Sacramento, California to Andover, Massachusetts held up the reopening of government schools, overtly using kids as bargaining chips to extract concessions over working conditions.

The United Teachers of Los Angeles went further, at one point demanding wealth taxes, police reform, and a moratorium on charter schools as necessary preconditions for reopening public schools. The union settled for remote-only classes.

Threatening strikes and refusing to show up for work have been effective tactics so far, since there’s a lot of leverage to be had in keeping parents uncertain as to the educational fate of their children, or even as to where they will spend the day while their parents work. But the labor actions have also created openings for education alternatives.

Private schools, learning pods, microschools, charters, and homeschooling approaches offer parents options that suit their preferences—options that can usually be adopted without waiting on the pleasure of third parties with their own agendas. With their public spats, last-minute agreements, and one-size-fits-few compromises government schools and teachers unions are handing unprecedented marketing opportunities to the competition.

“If your school in the Greater Boston area has a delayed opening or is going fully remote, check out our website to find a Catholic school near you that is offering live in-person instruction,” tweeted the Catholic Schools Office of the Archdiocese of Boston on August 28. “All are welcome—learn more today!”

“Do you know what you are doing for school this fall?” Prenda, which offers a model for microschools, posted on Facebook on August 27. “Join us to learn more about Prenda Family, our full-service at-home education program with a learning model, community, and curriculum that is designed to help your kids become empowered learners.”

In other cases, parents tackle education with a DIY approach.

“Nobody working in education today can escape pandemic learning pods: the increasingly popular phenomenon in which families band together and hire a private tutor to offer in-person learning to a small group of children,” The Washington Post noted this week.

Families that have neither the resources nor the inclination to pay tuition or a share of a tutor’s fees are taking on the task themselves and discovering that education doesn’t have to be expensive.

“Interest in homeschooling has ‘exploded’,” the Associated Press reports. “Some are worried their districts are unable to offer a strong virtual learning program. For others who may have been considering homeschooling, concerns for their family’s health amid the coronavirus and the on-again, off-again planning for in-person instruction are leading them to part ways with school systems.”

Kids are increasingly being educated by their own relations, or in co-op style by groups of like-minded parents who share responsibilities for a pool of children.

The move by motivated families who can manage education alternatives even as they pay taxes for institutions plagued by squabbling amongst union leaders and government officials has some people worried about inequality. Public schools are poised to become the Medicaid of learning—lower-quality government offerings of last resort.

If—when, more likely—that happens, education bureaucrats and union officials will have nobody to blame but themselves.

“Somewhere along the way, I believe we flipped the purpose of this,” New York Gov. Andrew Cuomo told the New York Daily News editorial board during a 2015 discussion about schools. “This was never a teacher employment program and this was never an industry to hire superintendents and teachers. This was a program to educate kids.”

But, as Cuomo acknowledged, kids are beside the point when government officials and union leaders keep them waiting on negotiations that serve everybody but the people who depend on public schools. So families are leaving to explore the world beyond.

And as families grow accustomed to choosing what works for their children rather than accepting what they’re given, fewer of them are going to be eager to return their kids to the roles of hostages in labor negotiations. If we’re serious about educating everybody, all families should be allowed the freedom to do the same.

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“Investigators haven’t yet determined how many rounds were fired.” A few hours after the release of a video outing himself as the person who fatally shot a Patriot Prayer protester in Portland, Oregon, last week, 48-year-old Michael Forest Reinoehl was himself shot and killed by police. The shooters were part of a federal task force that included U.S. marshals and FBI agents as well as local law enforcement, and they were there to take him in as a suspect in the August 29 slaying of 39-year-old Aaron “Jay” Danielson.

Reinoehl was “an Army veteran and father of two who has provided what he called ‘security’ at Black Lives Matter protests,” reports Vice News. Reinoehl told journalist Donovan Farley that he shot Danielson in self-defense, believing that Danielson was about to stab him and his friend.

“You know, lots of lawyers suggest that I shouldn’t even be saying anything, but I feel it’s important that the world at least gets a little bit of what’s really going on,” Reinoehl said on camera. “I had no choice. I mean, I, I had a choice. I could have sat there and watched them kill a friend of mine of color. But I wasn’t going to do that.”

Reinoehl “had described himself in a social media post as ‘100% ANTIFA,’ and suggested the tactics of counter-protesters amounted to ‘warfare,'” notes Seattle’s KOMO. “He had been shot at one protest and cited for having a gun at another.”

On Thursday night, Reinoehl allegedly pulled a gun on a team of federal agents who showed up to arrest him. “Initial reports indicate the suspect produced a firearm, threatening the lives of law enforcement officers,” said the U.S. Marshals Service in a statement.

“Thurston County Sheriff’s Lt. Ray Brady said four members of the fugitive task force fired their weapons, including two Pierce County Sheriff’s deputies, an officer from the Lakewood Police Department and an officer from the Washington State Department of Corrections,” reports KOMO. “Brady said investigators haven’t yet determined how many rounds were fired.”

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FREE MINDS

The District of Columbia admits racist gun-law enforcement. The Washington Post reports:

An initiative cracking down on gun crimes in the District targeted three predominantly Black wards and was not enforced citywide as announced, U.S. prosecutors acknowledged in court records, drawing attacks that the policy disproportionately subjected African American defendants to lengthier prison terms.

The geographic targeting of the program launched in February 2019—under which felons caught illegally possessing guns are charged under federal statutes—was recently disclosed after a defendant challenged the program backed by D.C. Mayor Muriel E. Bowser (D).

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FREE MARKETS

English tutors and teachers caught up in TikTok ban. Trump’s executive order targeting ByteDance, the company behind popular video app TikTok, also hits the nearly 4,000 U.S. teachers who teach English to Chinese children through the ByteDance-owned app GOGOKID.

The Trump administration is also considering banning even more apps as part of the president’s paranoid crusade against products from China. The administration says it’s a matter of national security.

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QUICK HITS

• The Department of Homeland Security (DHS) may start demanding biometric data from all immigration applicants. A new proposal at the agency “would give DHS the authority to require biometrics for every application, petition or related immigration request,” reports CNN, which notes that “currently, US Citizenship and Immigration Services, the DHS agency responsible for managing immigration benefits, requires biometrics only for applications that require background checks.”

• The Tax Foundation analyzes the Marijuana Opportunity Reinvestment and Expungement (MORE) Act, which is scheduled to get a vote in the U.S. House of Representatives later this month.

• Jessica Krug, a professor of African-American history at George Washington University, was just pretending to be black.

• An array of anonymous sources in The Atlantic have tales to tell about Trump’s alleged disrespect for the military and dead troops. Make of them what you will.

• Protesters are heading to the Kentucky Derby.

• “Right under the nose of a president who promised to drain the swamp, one of the government’s shadiest handouts to large banks and big companies looks like it will be renewed for another 25 years,” writes Reason columnist Veronique de Rugy in The New York Times.

• Former Massachusetts governor and 2016 Libertarian Party vice presidential candidate Bill Weld is endorsing Joe Biden. According to The Hill, Weld joins “a group representing almost 100 former Republican lawmakers and officials” who want to see Trump defeated.

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A few years ago, I blithely drove toward the Humboldt redwood forests across the coastal ranges without checking the morning road updates. Let’s just say that moving along in a small metal box with fires raging on both sides of Highway 20 gives one a new appreciation of the perilous work firefighters do to contain such blazes.

As another grueling fire season grips California, I understand growing concerns about a widely reported lack of firefighting resources. Although structure fires and, especially, paramedic calls comprise the bulk of calls to local fire departments, there’s no question that arid California needs a boisterous system for battling blazes in its expansive forests. Wildfires are as predictable as the rising sun, but the state doesn’t do a great job preparing for them.

“More than 930,000 acres have burned so far in Northern and Central California—an area larger than the land mass of Rhode Island—with little containment, in part because firefighting resources are stretched beyond capacity by the number of blazes,” according to a report last week in the Los Angeles Times. The Ocean State would barely make a decent-sized county here, but that’s still an incredible amount of tinder.

The article noted that California officials have had to make “tough choices on which (wildfires) to fight” and that “officials said they were being turned down for state help and left to beg equipment and manpower from volunteers and local agencies.” State officials have little choice but to allow some amazing forestlands, including redwood groves, to burn to the ground.

Most of the ongoing debates about firefighting center on broader environmental and regulatory issues. Predictably, climate-change activists blame global warming. “Temperatures rose about 1.8 degrees Fahrenheit statewide while precipitation dropped 30 percent since 1980,” according to a Scientific American article in April about a Stanford University study. Researchers blame this heat rise for an increase in the days in which fire risk is at the highest.

Others blame California’s forest-management policies. “It’s not climate change that’s burning up the forests, killing people, and destroying hundreds of homes; it’s decades of environmental mismanagement that has created a tinderbox of unharvested timber, dead trees, and thick underbrush,” argued former Orange County Assemblyman Chuck Devore in Forbes last year.

Still others say the state’s heavily regulated insurance system, which limits the ability of insurers to price fire policies at the market rate, subsidizes home construction in heavily wooded areas. There also are myriad disputes relating to electrical lines, and the liability laws that govern responsibility when those lines spark a wildfire. I’m more focused on a nuts-and-bolts governance problem—one that is standard fare with all government services.

Because agencies are monopoly institutions, funded by tax proceeds and mandatory fees, they do a terrible job allocating the resources that they receive. In the private sector, companies that do a lousy job go out of business. In the public sector, agencies that perform poorly or inadequately lobby for more money—so they continue with business as usual.

Frankly, union power drives state and local firefighting policies. The median compensation package for firefighters has topped $240,000 a year in some locales. California Department of Forestry and Fire Protection firefighters earn less, but their packages still total nearly $150,000 a year. The number of California firefighters who receive compensation packages above $500,000 a year is mind-blowing.

Obviously, if the state spends scarce resources in this manner, it will have fewer resources to hire additional firefighters and buy equipment that’s now in short supply. After one particularly bad fire season, an acquaintance told me that we should pay firefighters “anything.” The state has indeed taken that approach, and look where it’s gotten us. Meanwhile, 70 percent of the nation’s firefighters, including in the town where I live, do this tough work on a volunteer basis.

Any politician who tries to improve how firefighting services are provided, or to help communities get their raging compensation costs under control, runs up against a special-interest juggernaut that’s as challenging as a three-alarm office fire. For instance, this newspaper group has detailed the outrageous pushback that Placentia faced from chiefs and unions as it created a new department to provide better and less costly services for residents.

Opponents cited safety concerns, but opposition was really about compensation given that Placentia’s model offers a cost-saving—but generous—retirement plan and outsources paramedic services to a private company. Even as legislators bemoan the current resource problems, they recently supported, on a bipartisan basis, a union-backed pension bill (Assembly Bill 2967) that effectively prohibits other cities from following Placentia’s approach.

We all appreciate the work that firefighters do, especially during another grueling fire season, but we shouldn’t forget that firefighting resource shortages are caused by a legislature that is more interested in preserving union wage levels than in creating a firefighting system that works best for the public.

This column was first published in the Orange County Register.

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9/4/1854: Justice Levi Woodbury dies.

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Published in fall 2019, Sarah Pinsker’s A Song for a New Day is set in a near-future where public gatherings have been radically limited by a global pandemic and threats of violence. Reading the book in 2020—which I did shortly after learning it had won this year’s Nebula Award—raises questions about the author’s psychic abilities.

But there’s much more to recommend the novel than just its eerie prescience. The story follows the hilariously named Rosemary Laws through a series of musical speakeasies, illegal under the political regime, as she scouts new acts on behalf of her corporate virtual reality employer. But an encounter with the equally hilariously named underground rock star Luce Cannon forces her to question the rules and regulations that have driven music—and so much else that makes life worth living—underground.

 

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