WAVE Volume 2 Issue 23 Dec 12, 2016 updated

2

Bathroom debate: Four Fourth Circuit, sitting en banc (all
new cases are shaping judges heard the case, rather
than a panel) ordered the school
transgender rules. to allow G.G. to use the boys’
restrooms, as a U.S. Department
His, hers, or single stall? High of Education (ED) letter states,
Court to weigh in “A school generally must treat
transgender students consistent
Educators knew last year that the with their gender identity.”
next big thing coming down the
pike would be transgender rights. Pointing to a 1997 U.S. Supreme
Now it’s one of the biggest chal- Court ruling, the Fourth Circuit
lenges districts face. And until noted that an agency’s interpre-
this developing area of civil rights tation of its own ambiguous reg-
law is settled, it can leave you in ulation must be given controlling
a tough spot. weight unless the interpretation
is completely erroneous or incon-
Good news is, the U.S. Supreme sistent with regulations or
Court has agreed to step into the stature. Auer v. Robbins, No. 95-
national debate and hear a case 897, 519 U.S. 542 (1997).
regarding transgender rights at a
school. The school district appealed to
the U.S. Supreme Court. It
Virginia will be the test case. agreed to hear the case but lim-
ited arguments to the following
G.G. is a transgender boy who two questions:
sued his Virginia school, alleging
its refusal to allow him to use the 1. Should deference be given to
boys’ facilities on campus the ED guidance letter?
amounted to a violation of Title
IX. After a long legal battle, the

2. Regardless of deference, was Parents for Privacy v. Directors of 3
the ED’s interpretation of Title IX Township High School, No. 16-
and its implementation correct? cv-4945,2016 WL 6134121 (N.D. district to “treat Jane Doe as the
Ill. 10/18/16). girl she “is” by letting her use
Gloucester County School Board girl’s restrooms at school. Doe v.
v. G.G., No. 16-273 (U.S. cert. The Highland Local School
granted 10/28/16). Board, No. 2:16-CV-524,2016
WL 5372349 (S.D. Ohio
9/26/16).

Note: With the passing of Justice A Wisconsin federal judge or-
Antonin Scalia has left a vacancy dered a district to allow a trans-
on the bench. So if the Court’s gender teen to use the boys’
decision is tied, the ruling for facilities at school. He was told to
G.G. would stand. use girls’ or gender-neutral rest-
rooms, so he avoided drinking
An Ohio federal court ordered a anything. When he couldn’t wait
district to allow a transgender (hold it anymore) he snuck into
student to use the girl’s rest- boys’ restrooms. Administrators
rooms at school. The court told security to watch for and re-
pointed out, “Districts … have port kids who used the “wrong”
been able to integrate transgen- restrooms. The court also or-
der students fully into academic dered the school to stop monitor-
and social community without the ing his restroom use. Whitaker v.
disruptions and without the Kenosha Unified School District,
doomsday scenarios Highland No. 16-CV-943PP, 2016 WL
predicts, such as sexual preda- 5239829 (E.D. Wis. 9/22/16).
tors entering an elementary
school restroom.” It ordered the

Courts weigh student’s rights

As everyone in education awaits
the Supreme Court’s decision re-
garding G.G., courts have al-
ready weighed in on the debate:

An Illinois federal court refused
to order a district to require stu-
dents to use restrooms that cor-
respond with their biological sex.
Plaintiffs said letting a transgen-
der student use girl’s bathrooms
violated other girl’s constitutional
right to privacy. The court found
the group wasn’t likely to win the
suit – which was fatal to the in-
junction request. Students and

4

UNCLASSIFIED

GOV. CHRIS CHRISTIE | LT. GOV. KIM GUADAGNO | DIR. CHRIS RODRIGUEZ

NJOHSP

EXECUTIVE INTELLIGENCE BRIEF

DECEMBER 1, 2016

Anwar al-Aulaqi: Inspiring Jihadists Five Years After His Death

7KHDWWDFNRQ0RQGD\DW2KLR6WDWH8QLYHUVLW\KLJKOLJKWVWKHHQGXULQJLQÀXHQFHRIUDGLFDO
cleric Anwar al-Aulaqi, who was killed in a US airstrike in Yemen in 2011. Abdul Artan, who
shortly before the Ohio State attack posted a statement on Facebook praising Aulaqi as “our
hero,” drove his vehicle through a crowd and struck fellow students with a knife, injuring 11.
Artan’s motives are still under investigation, and in the same Facebook post, he made references
to Islamic State of Iraq and Syria (ISIS) and lone-wolf attacks.

• A US citizen and native English speaker, Aulaqi Ohio State University attacker, Abdul
demonstrated that anyone can participate in violent Artan. Since 2011, Anwar al-Aulaqi
jihad, and throughout various lectures and sermons
he repeatedly called on Muslims in America has been named in over 20 cases in the
and Europe to “take action.” Aulaqi is credited United States.
with inspiring Dzhokhar and Tamerlan Tsarnaev,
who killed three and wounded 264 at the Boston
Marathon in 2013, as well as Syed Farook and
Tashfeen Malik, who killed 14 and wounded 22 in
San Bernardino, California, in December 2015.

• ISIS has leveraged Aulaqi’s messages for its own
propaganda. In December 2013 and March 2014,
the group featured Aulaqi in videos promoting the
idea of an Islamic State. Additionally, the fourth
issue of ISIS’s English-language magazine Dabiq,
released in 2014, featured a photo of Aulaqi.

• Many jihadists view Aulaqi as a martyr because Omar Mateen reportedly listened to
he was killed in a US airstrike, boosting his lectures and watched videos by Anwar
reverence and credibility among jihadist followers
and potential recruits. Omar Mateen, the Orlando al-Aulaqi.
nightclub shooter who killed 29 and wounded 53
in June, watched Aulaqi video sermons on violent
jihad and the merits of martyrdom.

Contact Information
For more information, please contact NJOHSP’s Analysis Bureau at [email protected] or
609-584-4000.

UNCLASSIFIED

5

What decision would you “Ok, it’s related to threats on able to put the school on
make? Incident is real, names Twitter,” Condone added. lockdown and keep students
have been changed for dra- safe until police arrived and
matic effect. “Come on man, that could be arrested Jason.”
a number of things,” replied
Student fights conviction Sweeney. “I give up.” “You’re not kidding,” Con-
after making online threats done said. “That was way to
“Jason Smith is appealing his too close for comfort. If not
“Guess what I just heard,” conviction,” said Condone. for that watchdog group’s
safe school officer Butch eagle eye, we might’ve had a
Condone said to principal Threatened to ‘shoot up’ crisis on our hands. But now
James Sweeney. school that Jason’s saying the whole
thing was a joke and he
“Give me a hint,” said “Seriously?” Sweeney asked. shouldn’t be criminally
Sweeney. “First, he tweeted that he was charged.”
going to shoot up the school.
Then he posted a picture of a “What do you think the judge
gun in his book bag and will do?” asked Sweeney
named the specific day he
planned to strike.” “I have no idea, but let’s hope
it’s the right thing,” said Con-
“Thank goodness that the done.
watchdog group notified us
about the posts,” added Page 10 for the
Sweeney. “At least we were decision

This is the last issue of the
WAVE for 2016. We will return in

January of 2017.

Have a happy & wonderful
holiday!

6

“over 50 years of California case
law has ensured that persons in
a public toilet may reasonably
expect that they are not being se-
cretly recorded.”

M.H. denied Matthew the privacy
he was legally entitled to, the
court explained. So the convic-
tion would have to stand.

People v. M.H., No. D067616
(Cal. Ct. App. 6/21/16).

Snapchat bathroom weeks later, he committed sui-
prank ends in freshman cide, leaving a note that read, “I
can’t handle school anymore,
committing suicide. and I have no friends.”

A junior violated a freshman’s One of Matthew’s friends told Girl blames school for
right to privacy in a restroom, so school officials about the video, off-campus rape
a California appeals court re- and they called the police.
fused to overturn his criminal After being raped by a high
conviction. M.H. admitted he’d made the school student who was a regis-
video and posted it on Snapchat. tered sex offender, a 14-year old
Junior M.H. went into a restroom student sued her school district
at University City High School. In He was arrested and found guilty for negligence.
one of the stalls, a freshman of unauthorized invasion of pri-
Matthew was fake moaning vacy by means of a cell phone The legal battle went all the way
loudly while pretending to mas- camera – a misdemeanor. to Washington’s highest court,
turbate. which held the case must go be-
M.H. appealed the conviction, ar- fore a jury.
M.H. recorded a video of the in- guing he didn’t violate Matthew’s
cident and posted it on Snapchat privacy because he only
with a caption that read: “I think recorded what “Matthew ex-
this dude is jacking off.” The posed to public view – his feet
footage didn’t show Matthew’s through the gap between the stall
face, but he was easily identifi- wall and the floor.”
able as his unique tennis shoes
were visible between the stall Court: No dice, kid
door and bathroom floor.

Video makes the rounds The court didn’t buy that excuse,
noting that “the bathroom, includ-
The video circulated through the ing a public stall, is perhaps the
school, and other students made epitome of a private place.”
fun of Matthew about it. Two
Further, the court pointed out that

Principal dropped the ball deemed a leader, so Clark was 7
assigned duties, such as acting
In 2004, 15-year old Nicholas as a coach/mentor to younger The legal fight continued to the
Clark had to register as a sex of- teammates at the track and field state supreme court, which said
fender because he’d been con- facilities which were shared by the case had to go before a jury.
victed of indecent liberties after both the middle and high school
sexually assaulting a middle students. State’s high court
school student. weighs in
As you can imagine, Clark struck
The sheriff’s office notified up a friendship with N.L. a 14- First, the court explained that it
Clark’s principal, but he failed to: year old girl who was on the mid- didn’t matter that the rape oc-
dle school track team. She was curred off campus, as what mat-
1. Share the information with fac- also about the same age as ter was “the location of the
ulty members, which violated dis- Clark’s previous victim. negligence {not} the location of
trict policy. the injury.”
One afternoon, Clark asked N.L.
2. Create a safety plan that to skip track practice and invited The court also refused to accept
would’ve kept Clark away from her to go out for a hamburger. the school’s argument that it
younger students, which again She agreed, and they left school couldn’t have foreseen that the
violated district policy as Clark’s in his car. Instead of going to students would leave campus to-
status as a sex offender. Burger King, Clark took N.L. to gether, as “students have been
his home, where he raped her. skipping class together since the
Fast forward to the spring of days of Huck Finn and Tom
2007: Afterward, N.L. told her mom, Sawyer.” Noting that “foresee-
who notified school officials and ability is normally an issue for
Clark was 18-years old and a the local police department. One jury,” the court refused to toss the
varsity member of the high month later, police arrested claim on this issue.
school’s track team. He was Clark, and he eventually pleaded
guilty to second-degree assault. Finally, the court explained that
the sheriff’s office felt the need to
Was the school notify the school about Clark’s
negligent? status as a sex offender so
school officials could take appro-
N.L. brought a negligence action priate steps to counteract the
against the district. The school danger he presented to the stu-
argued it couldn’t be held re- dent body.
sponsible or liable as N.L. wasn’t
in school or on school grounds at But the principal didn’t notify the
the time of the rape. faculty or create a plan to keep
Clark away from younger stu-
The court tossed the claim, find- dents, the court pointed out. So
ing N.L.’s decision to skip track this was an issue for jury, too.
practice and leave with Clark
“broke the chain of causation.” The ruling for N.L. was affirmed
so she will get her day in court.
On appeal, the ruling for the
school was reversed. N.L. v. Bethel School District, 378
P.3d 162 (Wash. 9/1/16)

8

9

cess of intimate facilities” i.e.,
restrooms and locker rooms.

State of Texas v. U.S. No. 7:16-
cv-00054-O, 2016 WL 4426495
(5th. Cir. 10/18/16).

Fifth Circuit: Injunction’s What it means to us…. If/Then examples
for bathroom &
locker room only In a nutshell, you have to follow Teachers need concrete exam-
the rest of the guidance, or you ples, so we use “if/then” state-
After reading the cover story in risk losing federal funds. ments to spell out the specifics of
this week’s issue of the WAVE, successful de-escalation tech-
you might be wondering: But Administrators – especially those niques:
what about the states’ lawsuit in states that follow the Fifth Cir-
against the feds? cuit (Texas, Louisiana and Mis- 1. If a student displays anxiety,
sissippi) might want to take a then staff should respond with
Shortly after the Fourth Circuit second look at the guidance. Ac- support.
ruled for G.G., the feds released cording to some experts, there’s
a controversial “Dear Colleague” a lot more to it than just bath- 2. If a student acts defensive,
letter regarding transgender stu- room rules. Like most legislation then staff should give them a di-
dents. its back loaded. rective.

The letter didn’t carry the weight
of law, but its message was
clear: Toe the line or lose fund-
ing.

States fight back De-escalation explained: 3. If a student challenges your
What teachers need to authority, then you must ignore
Led by Texas, a handful of states know the dig and redirect him or her
sued, challenging the letter. back to the problem you’re trying
By Courtney Wiber, counselor, to solve.
In August, a Texas court issued Crisis Prevention Institute
an injunction blocking the letter, 4. If a student is engaging in risky
meaning the feds cannot with- Most educators know what de- behavior, to themselves, others
hold federal funding from schools escalation is – in theory at least. or district property, then that’s the
that don’t comply with the letter. only time teachers should use
It’s a method of stepping in at the physical intervention.
State of Texas v. U.S., No. 7:16- first sign of trouble to prevent
cv-00054-O, 2016 WL 4426495 things from escalating to a bigger When teachers know how to use
(N.D. Tex. 8/26/16). problem. de-escalation techniques, they’re
more prepared to handle small
On appeal, the Fifth Circuit af- Lovely concept – but that’s all it issues before things turn into big
firmed the ruling, but clarified that is. The definition doesn’t offer ugly problems.
“the injunction is limited to the ac- guidance on how to accomplish
the goal.

The Decision: were sent out into cyber- 10
From page 5 space without being ad-
dressed to any specific “What were they thinking”
Yes, the court overturned target.
the conviction. The following stories are about ed-
So the conviction had to be ucators who made some very poor
Jason was found guilty of overturned, the judge held. decisions.
“sending written threats to
kill or do bodily harm” – a vi- Analysis: Following safety Caught on video: Teacher
olation of state law. procedures is crucial dragged girl by her hair

That statute’s plain lan- Even though Jason’s con- At Greenville High School in Mis-
guage leaves little room for viction was overturned, the sissippi, a teacher was caught on
interpretation, the court school didn’t “lose” here. video dragging a special needs
noted. student by her hair about 15 feet
No one got hurt – and that’s across the gym floor.
It specifically says the writ- always the ultimate goal.
ten threat must be sent to The footage also showed the
the intended victim. As soon as they were noti- woman grabbing a cup from the girl
fied about the threats, and hitting her on the head with it.
That wasn’t the case with school staffers remained
Jason, the court noted. calm and made quick deci- The videos were posted on Face-
sions that complied with book, and the outraged parents
On Twitter, Jason would’ve school policy, like: identified the teacher by name and
had to use the “@” symbol demanded her termination.
to direct the threats to a spe- 1. Putting the school on
cific person. He didn’t. lockdown, and An investigation is ongoing.
Jason’s tweets were not
sent to any student or staff 2. Calling the police Teacher to students: “Your
at school. parents will be deported”
Cite: J.A.W. v. State of
They were public tweets that Florida A substitute teacher in California
has been fired for scaring stu-
dents after Donald Trump won the
election.

At Bret Harte Preparatory Middle
School, a student recorded the
unidentified man telling kids that
their parents would be deported
and they’d be “left in foster care.”

“If you were born here, then your
parents gotta go,” the man is
heard saying on the recording.
“And they’re gonna leave you be-
hind.”

When a student asked how po- girlfriend, an elementary school 11
lice would find them, the man teacher. This is a complicated
said, “I got your address, your case that will make for an ID we have here is an apparent
mama’s address, your daddy’s channel TV show. murder for hire,” said St. Louis
address. It’s all in the system, Attorney Jennifer Joyce. “What
sweetie. And when they come 1. Cornelius Green, who was the we do know is that Mr. Green did
and there’s an illegal, they gotta principal at Carr Lane Visual Per- send Mr. Cutler through the mail
go!” forming Arts (VPA) School. $2,500 in cash.”

Teen refused to turn 2. Jocelyn Peters, who was dat- Green faces two counts of first-
down music, ing Green and worked as a degree murder for Peters and the
teacher at nearby Mann Elemen- unborn child. He’s being held on
attacked principal tary. a $3 million cash bond.

A New York principal was treated 3. Phillip Cutler, who lives in 2016 Dumbest Teacher
and released from a hospital Oklahoma and is Green’s child- Award goes to...
after being attacked by an 18- hood friend.
year old. Most of us know when to keep
This past March, Peters was our mouths shut. But a teacher in
Matthew Tossman is the principal found fatally shot at her apart- Iowa didn’t. This is what hap-
at Manhattan Early College ment. She was seven months pened:
School for Advertising. pregnant at the time.
Mary Beth
He saw a student, Luis Penzo, in During the week of Peter’s mur-
a school hallway with his head- der, Cutler was in St. Louis visit- Haglin faced
phones blasting loudly and ing Green. Court documents
asked him to turn the music show that Cutler’s phone of the a misde-
down, according to the police re- night of the murder was near Pe-
port. ters’ apartment and that Cutler meanor
had possession of Green’s car
Penzo punched Tossman in the and Peters’ apartment key. charge for
face. He was taken to a nearby
hospital, where he was treated In July, Cutler was charged with having an af-
for swelling and lacerations two counts each of first-degree
around both eyes. murder and armed criminal ac- fair with a stu-
tion against Peters and the fetus.
Penzo was charged with assault dent at
and is being held on $5,000 In August, Green was fired from
bond. his position at Carr Lane VPA on Washington
theft charges. He was arrested
Cops: Ex-principal hired for allegedly taking $2,700 that High School.
hit man to kill teacher was being raised for a student
dance group’s upcoming field But she decided to fight back.
A Missouri principal who was trip.
fired in August for alleged theft Her strategy? She went on the
has recently been charged with Police arrested Green, saying he
hiring a man to kill his pregnant hired Cutler to kill Peters. “What “Dr. Phil” show, where she made

eyebrow-raising statements:

“The student seduced me…

caught me in my weakest mo-

ments. We had sex almost daily.

I did think I could keep this a se-

cret.”

Originally, she faced a maximum
two-year sentence. After the
show aired, prosecutors
changed the misdemeanor
charge to “felony exploitation.”
Now she’s looking at up to five
years in the pokey.

12

Teacher arrested after he
wrote “focus”

on students head

At Landstown Middle School in
Virginia, teacher Daniel Board
has resigned after he was ar-
rested and charged with assault
on a student.

Board was frustrated with a male
student because he wasn’t pay-
ing attention, according to stu-
dents in the classroom. They
said that Board asked them to
hold the boy down and then
wrote “focus” on his forehead.

When parents heard what hap-
pened, they had a lesser beam
attention and complained. The
school investigated and notified
the police.

Assistant principal blames
girls for boys’ bad grades

At Clements High School in
Texas, assistant principal Phil
Morgante talked about the dress
code at a recent school assem-
bly.

Someone recorded it and of
course posted it on social media
sites. In part, Morgante said,
“Ladies, I blame you all for boys’
low grades because of tight
clothing.”

That didn’t go over well with fe-
male students.

The district quickly released a
statement saying the comment
shouldn’t have been made.

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