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District Not Liable in Rape

The parents of a Texas student who was raped by a school custodian in an empty classroom have no valid federal civil rights claim against school district officials, the full U.S. Court of Appeals for the 5th Circuit has ruled.

The parents of the student, identified only as Jane Doe, sued the Hillsboro, Texas, district after the 1993 rape, seeking damages under a federal civil rights law known as Section 1983.

The girl, who was a 13-year-old 8th grader at the time of the incident, did not tell her parents about the rape until she became pregnant. The custodian pleaded guilty to criminal charges stemming from the rape.

A federal district judge denied several school administrators' requests to be declared immune from liability, allowing the lawsuit to proceed.

A three-judge panel of the appeals court affirmed that ruling by a 2-1 vote. But the full 5th Circuit court threw out the panel decision and reversed the trial court.

The appellate court said in its May 27 opinion in Doe v. Hillsboro Independent School District that it was joining with four other federal circuit courts in holding that compulsory school attendance does not create the kind of special custodial relationship between school and student that makes the school legally responsible for the student's safety.

In concurring, U.S. Circuit Judge Edith H. Jones said she was "outraged and saddened that public schools too often fail shockingly to take steps necessary to insure the students' safety." But "there is no assurance that creating a whole new class of constitutional protections for public school children would be a successful undertaking."

Unreasonable Search Disallowed

An assistant principal in Florida lacked reasonable suspicion of criminal activity to search a student for contraband, a state appeals court has ruled.

The Florida Court of Appeals reversed a trial court decision and granted a motion to suppress evidence of marijuana possession in the case of a student identified as A.S.

The case stemmed from an incident in which the assistant principal at Suncoast Middle School in Fort Myers noticed a group of boys huddled in a hallway; one boy was holding money, and A.S. was fiddling in his pockets. The assistant principal brought the boys to the principal's office for a search, which turned up a small bag of marijuana in A.S.'s wallet.

A.S. was charged with delinquency in juvenile court. The trial court rejected his motion to suppress the evidence. He appealed, and the three-judge appellate panel ruled in his favor.

The assistant principal did not have reasonable suspicion that A.S. was engaged in criminal activity, the court unanimously held. The court applied the standards for school officials' searches of students established by the U.S. Supreme Court's 1985 ruling in New Jersey v. T.L.O.

The assistant principal "could not say she saw contraband of any type or any exchange occurring while she watched the boys," the Florida appeals court said in its May 21 ruling. "Thus, the search was not justified in its inception."

The court also rejected arguments from prosecutors that the assistant principal had reasonable suspicion because A.S. had a prior disciplinary record and a "bad attitude."

The case record "contains virtually no information regarding these factors," the panel said.

Abstinence Ad Should Have Been Permitted

A Massachusetts high school's student newspaper and yearbook were wrong to refuse to publish an advertisement promoting sexual abstinence, a federal appeals court has ruled.

A panel of the U.S. Court of Appeals for the 1st Circuit ruled 2-1 that Lexington High School had created a public forum in its student publications and that the refusal to carry the ad submitted by a parents' group violated the First Amendment.

The dispute followed a 1993 municipal referendum in Lexington in which voters backed the school's policy of distributing condoms to students without parental consent. The Lexington High newspaper, The Musket, published editorials in support of the condom policy.

Douglas Yeo, the father of two students at the school, submitted ads to the school yearbook and the newspaper on behalf of a parents' group, the Lexington Parents Information Network. The ads had a brief text message in support of abstinence: "We know you can do it."

Both the yearbook and the newspaper refused to carry the ads. Mr. Yeo sued, arguing that because the publications bore the imprimatur of the high school, their refusal amounted to state action.

A federal district court rejected his claims, but the appeals court agreed with the parents' group.

"The newspaper rejected the [group's] ad ... solely for its controversial content," said the May 20 opinion by U.S. Circuit Judge Norman D. Stahl in Yeo v. Town of Lexington.

"The First Amendment does not permit such arrangements because they do not protect against the risk that government will restrict expression based on its subject matter or viewpoint," the judge said.

In dissent, Judge Sandra Lynch said, "It is highly doubtful that the student-controlled newspaper, or yearbook, wields sufficient governmental power to warrant application of the First Amendment's strictures to them.

Because the publications at Lexington High have adopted new guidelines for accepting advertisements since the controversy, the appeals court sent the case back to a trial judge.

--MARK WALSH mwalsh@epe.org

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