School Law Summary 2012-2
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In this issue: Arbitration • Collective bargaining • Discrimination • First Amendment - Free speech • Immunity • Individuals with disabilities • Individuals with disabilities - Attorneys' fees • Nonrenewal • Public records • Referee's report • Student discipline • Title IX • Vicarious liability
Collective bargaining agreement was not violated when grievant was not rehired for vacancy that was unfilled.
In the matter of Arbitration between Sandy Valley Education Association and Sandy Valley Board of Education, AAA Case No. 53 390 00530 10, Arbitrator Richard P. Gortz (April 8, 2011)
Issue: Whether employer violated the terms of the collective bargaining agreement by failing to recall grievant to open position and involuntarily transferring grievant to another position.
Grievant taught keyboarding and technology courses to middle school students. However, the administration discontinued the keyboarding classes. Prior to this, grievant was considered a full-time teacher with benefits, but once the keyboarding classes ceased she was not. Grievant accepted an offer to teach an online health course, but refused to grade tests or enter grades at the end of the first semester, claiming she was not certified to teach that particular class. Her attorney and the board agreed to place grievant on layoff status so she could have recall rights.
The union argued that the board knew grievant was laid off and qualified when the Technology Instructor position was posted. Therefore, she should have been recalled once the board determined she was qualified. The board argued that grievant’s position teaching the online health course was not involuntary. Subsequently, the school decided to go into a STEM program instead of technology classes. Therefore, the board argued that the CBA was not violated since the Technology Instructor position was discontinued and never filled.
Award: For the board. The board is not contractually required to fill a vacancy. A violation may have occurred if the position was filled with a less senior employee or a new hire. However, that was not the case. Therefore, no violation occurred because the Technology Instructor position was not filled.
Thanks to Mary Jo Shannon Slick, Esq., Stark County Educational Service Center, Canton, for submitting the above arbitration decision.
Employer did not violate terms of the collective bargaining agreement by denying grievant full-time status as a bus driver.
In the matter of Arbitration between Kirtland OAPSE Local 366 Association and Kirtland Local School District Board of Education, AAA Case No. 53 390 00123 11, Arbitrator Donald N. Jaffe, Esq. (March 20, 2012)
Issue: Whether employer violated the terms of the collective bargaining agreement by denying grievant full-time employment as a bus driver.
Grievant was a bus driver for the Kirtland Local School District Board of Education for 19 years. In 2005, grievant was arrested for driving under the influence while in her personal vehicle. Grievant was charged with possessing physical control of a motor vehicle, operating a vehicle while intoxicated, and driving within lanes. The court sentenced her following her plea. The board’s insurance agency notified them that the grievant was uninsurable as a bus driver due to her guilty plea. Grievant then submitted a letter terminating her employment as a bus driver, but continued working in the district as the head cook. However, the board decided to add grievant to the district’s substitute bus driver list.
From May 2009 until March 2010, grievant was a substitute bus driver for the district on an as-needed basis. She then applied for a vacant bus driver position with the district in November 2010. The board hired another substitute bus driver with no previous alcohol related offenses for the vacant bus driver position. In August 2011, grievant resigned from her position as head cook and became a cafeteria cashier.
The union argued that the board violated the collective bargaining agreement by refusing to hire grievant as a full-time bus driver since she previously held that position and was qualified. In response, the board argued that grievant was not qualified for the vacant bus driver position because of the alcohol-related offense on her driving record.
Award: For the board. The board can adopt more stringent qualifications for employment than what is required in the Ohio Administrative Code 3301-83-06 (B). Policy No. 8600.04 implemented by the district provided that a bus driver could not have “no more than six points within the last twenty-four month period, no six point violations during the last seven year period, and not be convicted of driving while under the influence of alcohol and/or a controlled substance during the past six years.” The arbitrator concluded that Policy No. 8600.04 was applicable to grievant at the time the board hired a full-time bus driver.
Thanks to David A. Rose, Esq., Brindza McIntyre & Seed LLP, Cleveland, for submitting the above arbitration decision.
Court vacates award issued by arbitrator because authority exceeded.
Martins Ferry City School Dist. Bd. of Edn. v. Ohio Assn. of Public School Employees, Local 4, AFSCME and its Local 546, No. 11 CV 0382 (March 1, 2012)
Arbitrator Margaret Nancy Johnson was chosen to administer the arbitration between Martins Ferry City School District Board of Education and the Ohio Association of Public School Employees. The arbitration was caused by a “district-wide uniform salary reduction” plan. Johnson requested the district terminate the five percent wage reduction plan because the collective bargaining agreement (CBA) was specific as to wages, and therefore state law was inapplicable. She concluded by stating since the salary schedule in the CBA was at variance, the statutes were superseded by the contractual provisions. Johnson also decided that the district could not implement a uniform salary reduction plan because it violated the CBA. Therefore, the district was ordered to pay the members of the bargaining unit the difference between the negotiated wages and the uniform reduction for contract year 2010-2011. In response, the district sought to have the award issued by Johnson vacated.
The court of common pleas held that Johnson exceeded her authority by issuing an award that: “(1) modified the CBA by adding terms not found in the express language of the agreement; (2) was contrary to law; and (3) did not draw its essence from, or have a rational nexus to, the CBA.” The court asserted that Johnson contradicted the unambiguous language of the statutes by interpreting the CBA to include both parties complete understanding. She inferred the intent of the parties to supersede statutory provisions, which did not exist. The court continued by stating that a uniform salary reduction, provided by the legislature, allows a district to uniformly reduce all nonteaching employees’ salaries equally in that district. Neither party expressed an interest to supersede statutory law. As a result, the court vacated the award issued by Johnson.
The OSBA Legal Assistance Fund provided assistance in this case. This case is being appealed.
Court denied summary judgment in part on teacher’s hostile work environment and religious discrimination, but granted summary judgment for retaliation because teacher failed to establish a prima facie case.
Weiss v. Dept. of Edn. of the City of New York, S.D. N.Y., No. 09 Civ. 1689, 2012 U.S. Dist. LEXIS 44273 (March 29, 2012)
An employee sued his former employer for unlawful discrimination on the basis of age, religion, retaliation and hostile work environment, along with a violation of his right to due process. Peter Weiss was employed by the Department of Education of the City of New York (DOE) as an assistant principal for the School for Community Research and Learning (SCRL) from 2004 until he was terminated in 2008.
DOE argued that Weiss was terminated due to his unsatisfactory performance including frequent absenteeism and his unprofessional actions while working. Weiss argued that Principal William Mulqueen’s offensive comments regarding Weiss’ Jewish heritage were continuous and hostile. Weiss also alleged that he was terminated because he was Jewish and Mulqueen retaliated against his frequent complaints by giving him less work and recommending that he be terminated. Weiss filed a claim of harassment, discrimination and retaliation on the basis of age, religion and disability with the Office of the Corporation of Counsel and the Equal Employment Opportunity Commission (EEOC). Claims under the Civil Rights Law Section 40-c and 75, and violations of freedom of speech, association and equal protection later were withdrawn. Also withdrawn were claims under the Family Medical Leave Act. The EEOC issued a right to sue letter that was followed by this lawsuit.
The district court granted summary judgment in part for the DOE, ruling that Weiss failed to establish a prima facie case of retaliation, but denied summary judgment in part finding that the claims of hostile work environment and religious discrimination remained for trial. Regarding the claim of retaliation, the court concluded that Weiss was not able to demonstrate that he engaged in a protected activity or that Mulqueen knew of that protected activity. However, the court decided that Weiss’ allegations of a hostile work environment created genuine issues of material fact as to whether a reasonable employee would have found his work conditions hostile. Finally, the court concluded that Weiss provided sufficient evidence to create a triable issue of fact for a jury to determine whether religious discrimination occurred because he was able to prove (1) he was a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination.
Second Circuit upholds district court’s decision that suspension warranted when student’s drawing substantially disrupted the school environment.
Cuff v. Valley Central School Dist., 2nd Cir. No. 10-2282-cv (March 22, 2012)
A fifth grade science teacher asked her students to fill in a picture of an astronaut and write a “wish” in the left leg of the astronaut. One of the students responded to the assignment by expressing a desire to “blow up the school with the teachers in it.” Prior to the incident, the student had drawn another drawing depicting a person firing a gun. Above it, the student had written “One day I shot 4 people each of them got fo[ur] blows + they were dead. I wasted 20 bulits [sic] on them.” The student said that he was portraying a game of paintball in the drawing. The year prior, the student wrote a story about “a big wind [that] destroyed every school in America…[And] every body ran for there [sic] life and than [sic] all adults died and all the kids were alive. Than [sic] all the kids died.” The student also had a history of discipline for misbehavior in and around school. In response to the astronaut drawing, the student was suspended for five days. The student’s parents brought a Section 1983 action, alleging that the suspension violated their son’s First Amendment right to freedom of expression.
The lower court granted the district’s motion to dismiss for failure to state a claim. The parents appealed, and the court of appeals vacated and remanded, holding that, without some context, the facts alleged in the complaint did not dictate a dismissal. On remand, the parties completed discovery, and the district moved for summary judgment. The lower court granted the motion and the parents appealed.
The court of appeals applied Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, and its progeny, and held that “the relevant inquiry is whether the record demonstrates facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” The court held that the test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. The court also opined that school administrators are in the best position to assess the potential for harm and act accordingly.
Applying these standards, the court concluded that the student’s suspension should be upheld. It was reasonably foreseeable, the court held, that the astronaut drawing could create a substantial disruption at the school. When the student was suspended, he had a history of disciplinary issues, and his other earlier drawings and writings had also embraced violence. In addition, the astronaut drawing was seen by other students in the class, and caused another student, who observed the child with the drawing, to leave her seat and bring it to the teacher’s attention. The court stated that it didn’t matter whether the student intended his wish to be a joke or that he lacked the capacity to carry out the threat expressed in the drawing. As a result, the district could reasonably have concluded that the student’s drawing would substantially disrupt the school environment and their resulting decision to suspend the student was constitutional.
Superintendent and district not entitled to immunity in fired football coach case.
Steinbrink v. Greenon Local School Dist., 2nd Dist. No. 11CA0050, 2012-Ohio-1438
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2012/2012-ohio-1438.pdf
Tad Steinbrink was employed as a high school teacher and assistant high school football coach by the Greenon Local School District for seven years. In 2009, the district made Steinbrink aware of several complaints that had been made against him as a result of his work as a football coach for the district. Steinbrink was placed on administrative leave and was promised an opportunity to respond to the complaints. The following month, Steinbrink received notice that the board would be acting to terminate his supplemental contract. At the board meeting, the superintendent handed out copies of her final decision to each person who attended the meeting. She later sent an email to all attendees, asking them to throw away the final decision they received at the meeting, because it contained incorrect information alleging libel, defamation, intentional infliction of emotional distress and tortious interference with contract. Steinbrink sued the district, alleging that he was not given timely notice of the superintendent’s report and recommendation, that he was denied his promised opportunity to respond, and that the superintendent caused “new and damaging comments” about him to appear in the Springfield News-Sun.
The district filed an answer to Steinbrink’s complaint, pleading twenty-eight affirmative defenses, including statutory immunity. The district also filed a rule 12(c) motion for judgment on the pleadings, arguing that the complaint failed to plead actionable claims for relief, that the district and the superintendent were immune from liability, that Steinbrink’s proper avenue of relief was a claim for workers’ compensation benefits, and that Steinbrink’s claims for relief from defamation and libel were barred by the statute of limitations. The trial court overruled the district’s motion without stating its reasons. The district appealed.
The court of appeals affirmed the lower court’s ruling. The court held that the district’s motion for dismissal based on statutory immunity was properly denied since there was a causal relationship between Steinbrink’s claims and his employment relationship with the district. RC 2744.09(B) exempts claims that are brought by an employee against his political subdivision related to any matter that arises out of the employment relationship between the employee and the political subdivision.
Additionally, the court found that the superintendent’s statements as to Steinbrink’s unlawful conduct were sufficient, for purposes of a rule 12(c) motion, to plead that her acts were committed with a malicious purpose, in bad faith, or in a wanton or reckless manner. As a result, pursuant to RC 2744.03(A)(6)(b), she was not entitled to immunity. The court also rejected the district’s argument that Steinbrink’s proper avenue of relief was a claim for workers’ compensation benefits, since intentional torts do not occur within the employment relationship and are therefore beyond the reach of the authority conferred on the Bureau of Workers’ Compensation. The Second Circuit Court of Appeals affirmed the district court’s grant of summary judgment.
Sixth Circuit upholds district’s qualified immunity defense after district prohibits teacher from attending meetings on behalf of the district.
Baar v. Jefferson County Bd. of Edn., 6th Cir. Nos. 10-5704, 10-5741, 2012 U.S.App. LEXIS 5019, (Mar. 7, 2012)
http://www.ca6.uscourts.gov/opinions.pdf/12a0262n-06.pdf
Robert Baar, a public school teacher in Jefferson County, Kentucky, sent several “inappropriate letters” to one of his colleagues, Missy Payne. After Payne received a letter from Baar that spoke of increasing “danger” to Payne and her family, Payne told the principal about the letters. After conferring with the school board, the principal held a meeting with Baar, where he agreed to sign a memorandum of understanding requiring him to discontinue communication in any form, verbal or written, with Payne. Baar then was transferred to another school.
Three years later, Baar sent Payne an email stating “Count me in for the LACA meeting on the 29th. I will bring the money for the dues to the meeting. Bob.” LACA stands for the “Louisville Area Chemistry Alliance,” a professional organization of chemistry teachers that Baar co-founded, and one in which he actively participated from 1992 to 2001, but had no involvement after 2001. Baar indicated that he had sent the email because he wanted to attend an upcoming LACA meeting and because Payne was listed as the RSVP-contact person. In response to the email, the principal issued Baar a written reprimand, which disciplined Baar for violating the memorandum of understanding, instructed Baar to not communicate with Payne in any fashion, and prohibited Baar from representing the district at any LACA meetings. Baar filed suit against Payne, the board of education, the superintendent, two other school officials, and two principals, claiming that his First Amendment rights had been violated.
The district court granted qualified immunity to the district and dismissed Baar’s official capacity claims. Baar appealed. On appeal, the district asserted that the district court correctly granted qualified immunity because no reasonable school official could have understood that Baar had a constitutionally protected right to attend LACA meetings, and that preventing Baar from attending LACA meetings would trump the district’s interest in assisting Payne. The court agreed, finding that reasonably competent officials could disagree on whether the teacher’s interest in attending meetings outweighed the school district’s legitimate interests in prohibiting attendance. As a result, the employee relations’ director and principal were entitled to qualified immunity.
Third Circuit court rules school district had no obligation to update IEP without notification of intent to re-enroll in public school.
D.P. and Maria P. v. Council Rock School Dist., 3rd Cir. No. 11-2747, 2012 U.S.App. LEXIS 8595 (March 6, 2012)
http://www.ca3.uscourts.gov/opinarch/112747np.pdf
In 2007, D.P. transferred to the Council Rock School District (district) in Pennsylvania from Hamilton Township School District in New Jersey (Hamilton Township). D.P. was identified as a student needing special education services due to autism and his speech and language impairment. The district was required to provide D.P. with a free appropriate public education (FAPE) in accord with his current individualized educational program (IEP) since he transferred from an out-of-state district. The district needed to provide D.P. with a FAPE that was comparable to his IEP at Hamilton Township until the district developed an IEP for him. D.P. first attended Richboro Elementary School for his Extended School Year (ESY), then was sent to Goodnoe Elementary School for part-time autistic support because he was higher functioning than other students.
The district’s psychologist noticed D.P. exhibit inappropriate behaviors in December 2007. D.P.’s parents requested he be taught through a Verbal Behavior System including a functional behavior analysis and behavior support plan after the district issued a report in December 2007 detailing D.P.’s behavior. D.P. was transferred back to Richboro Elementary in January 2008 at the request of his parents. At this time he also received one-to-one direct teaching. A Notice of Recommended Educational Placement (NOREP) was signed and returned January 2008, which approved D.P.’s IEP from January 2008 through January 2009. During the summer of 2008, D.P.’s parents unilaterally enrolled him at the Comprehensive Learning Center (CLC), a private school focused on children with autism. The district was notified that D.P. would be withdrawn in July 2008, and would be enrolled at CLC for the 2008-2009 school year. D.P.’s IEP expired in January 2009 as a result of him enrolling at CLC and not arranging an IEP team meeting.
D.P.’s mother requested a due process hearing under IDEA and §504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, alleging that the district failed to provide a FAPE for D.P. during the 2008-2009 school year. The due process hearing officer ruled that the district complied with the IDEA for the 2008-2009 school year, and parent appealed.
The court entered summary judgment in favor of the district. On appeal, D.P.’s mother argued that the district failed to provide a FAPE, and as a result they should receive tuition reimbursement. She argued the district had a duty to update D.P.’s IEP to place him at CLC because taking him out of CLC would negatively impact his education.
The court of appeals held that the district had no obligation to update D.P.’s IEP regarding events from December 2008 because his parents failed to give notice to re-enroll him in public school. Also, the court noted that the district was no longer obligated to update D.P.’s IEP because “a school district is only required to continue developing IEP’s for a disabled child no longer attending its schools when a prior year’s IEP for the child is under administrative or judicial review.” Therefore, the district was not required to reimburse D.P.’s parents for his unilateral placement at CLC.
INDIVIDUALS WITH DISABILITIES – ATTORNEYS’ FEES
District court holds that plaintiffs who achieve desired results via private settlement are not “prevailing parties” entitled to attorneys’ fees under the IDEA.
Cain v. Nevada County School Dist., W.D. Ark. No. 4:10-CV-04011, 2012 U.S. Dist. LEXIS 146498 (Dec. 20, 2011)
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020111221D20.xml
A dispute arose between the parents of a disabled student and the district concerning the method for providing the student with a free and appropriate public education. The parents filed a complaint with the Arkansas Department of Education, alleging that the district failed to provide the student with appropriate teachers and aides, an appropriate individualized education program (IEP), extended year services, appropriate curriculum and evaluations, and failed to follow the IEP. In accordance with the Individuals with Disabilities Act (IDEA), the parties held a resolution session to attempt to resolve the dispute.
The agreement reached by the parties at the resolution session resolved all pending disputes except for the payment of the parents’ attorney’s fees. After the district refused to pay the parents’ attorney’s fees, the parents sued the district. Both parties made cross-motions for summary judgment.
Under the IDEA, attorneys’ fees may be awarded to the “prevailing party who is the parent of a child with a disability.” The issue before the court then was whether the parents were entitled to an award of attorneys’ fees for being the “prevailing party” in their claim brought pursuant to the IDEA. Citing well-established case precedent, the court stated that a litigant is a “prevailing party,” if he obtains “actual relief on the merits of his claim that materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”
The court held that the parents succeeded on the merits of their claims. They were successful in obtaining services for their disabled child by virtue of filing an IDEA complaint and requesting a due process hearing. Pursuant to the resolution agreement, the district was required to change the student’s educational placement from homebound services to that of a full-time student and provide the student with a full-time aide, a minimum of 180 hours of compensatory education services, and various other accommodations. However, the court also stated that it takes more than successful settlement of an IDEA dispute in order to secure reimbursement of attorneys’ fees. The court cited case precedent stating that attorneys’ fees can be awarded only to parties who receive a final judgment on the merits or a court-ordered consent decree. Ultimately, the court held that IDEA plaintiffs who achieve their desired results via private settlement are not considered to be “prevailing parties” and cannot recover attorneys’ fees. As a result, the parents were responsible for paying their own attorney’s fees and costs and the district’s motion for summary judgment was granted.
The Supreme Court of Ohio rules that school board is required to meet with administrator upon request to discuss nonrenewal of contract.
State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., Slip Opinion No. 2012-Ohio-1484
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-1484.pdf
Stacey Carna was a principal in the Teays Valley Local School District. During May of 2007, Carna was placed on administrative leave pending an investigation as a result of accusations that Carna illegally altered her students’ test answers on the Ohio Achievement Tests. Carna denied the allegations. Robert Thompson, the assistant superintendent, orally informed Carna in July of 2007 that she would not be recommended for another contract once her contract expired and she would not return to the district the following year. Upon learning this information, Carna told Thompson that she wanted to meet with the board to discuss the nonrenewal of her contract. On December 15, 2007, and February 25, 2008, Thompson notified Carna that she would not be recommended for another contract and not be rehired for the 2007-2008 school year. Thompson again informed Carna in February 2008 that the superintendent intended to recommend that her contract not be renewed for the 2008-2009 school year. The Ohio Department of Education decided that there was no wrongdoing on Carna’s part
Subsequently, the board voted to not renew Carna’s contract two weeks before the statutory deadline, but did not give her notice of the meeting. Carna filed suit seeking mandamus relief. The trial court granted judgment in favor of the district. The appellate court affirmed, ruling that Carna’s oral request for a meeting with the board was improper.
The Supreme Court of Ohio reversed the appellate court’s judgment and held that the board must meet with the administrator in executive session to discuss the reasoning behind nonrenewal, once the administrator has been notified that the contract will not be renewed and has requested a meeting. The Supreme Court of Ohio also ruled that the statute required Carna to request the meeting. Per RC 3319.02 (D), the administrator does not have to wait for a final evaluation or notice from the board informing her that she has the right to request the meeting. The case was remanded to the trial court for further proceedings.
School district emails may be public records if no exemption applies.
Easton Area School Dist. v. The Express Times, 41 A.3d 977, 2012 Pa. Commw. Unpub. LEXIS 307, unreported
The Express Times submitted a public records request to Easton Area School District under the Right-to-Know Law (RTKL). The request was for “all emails sent and received between October 1 and October 31, the email addresses of nine school board members, superintendent, and the general school board address.” The district denied the request, asserting it was not a public record and that the information was protected by privilege. The Express Times appealed to the Office of Open Records (OOR). The district responded by arguing that the records were protected.
The OOR found that the district did not establish that all of the emails requested were exempt and did not specify which emails were protected from being released. The OOR ruled that some exceptions did apply, but those that did not were not specifically identified. The district did establish that some of the information was protected by the Family Education Rights and Privacy Act (FERPA). The OOR granted Express Times’ appeal, in part, and denied it, in part, and required the district to disclose the emails that were not exempt. The district appealed the OOR’s decision to the trial court. The trial court affirmed the OOR’s decision. The district then appealed to the Commonwealth Court of Pennsylvania.
On appeal, the district argued that the public records request was not adequately specific, the emails requested were not public records, and if the request was specific the district should have the opportunity to review the records in order to assert all exemptions. The commonwealth court ruled that the emails were public records and the request was specific. Lastly, the court held that the district was able to recognize the applicable exemption, but failed to raise the objection. Accordingly, the court affirmed the trial court’s decision.
Referee opines that engaging in conduct unbecoming to an administrator’s position is “good and just cause” for termination.
In the matter between N. Marvin Dalton and Southeastern Local School District Board of Education, Nov. 7, 2011, Referee Larry A. Smith
Issue: Whether the board had “good and just cause” to terminate a principal’s right to recall. The principal sent emails to an individual he believed was 26 years of age. In the emails, the principal solicited sexual favors and sent inappropriate pictures. In later emails, the recipient indicated that he was only 16 and lived with his parents in Springfield. He told the principal that if he didn’t want to talk anymore that was “OK.” The principal replied that he still wanted to meet and asked the person if he could talk on the phone so they could decide “when and where.” The person with whom the principal actually was communicating with was a policeman who was using an assumed name. The Clark County Prosecutor did not file charges for any crime.
Recommendation: The referee recommended that the principal’s contract be terminated. The referee opined that “engaging in…conduct that is unbecoming to the…person’s position” is not only grounds for the revocation of a license, but is also “good and just cause” for termination, so long as there is a nexus between the conduct and that which is claimed to be “unbecoming to the person’s position.” The referee held that the principal had committed acts that came to light and “justifiably caused him to lose all credibility as a leader thus rendering him ineffective and consequently unfit to be a school principal. He engaged in conduct that is unbecoming to the position of a school principal.” The referee also opined that the district’s concern about student safety was justified, as one reasonably could believe that the principal had the propensity to engage in sexual conduct with a person who is 16 years of age and a student with the district.
Thanks to Lisa Burleson, Esq., Benesch, Friedlander, Coplan & Aronoff, LLP, Columbus, for submitting the above referee’s report.
Trial court did not abuse its discretion in affirming the board’s decision to discipline two students for possessing drugs and drug-related paraphernalia.
Judd v. Bergant, 11th Dist. No. 2011-G-3020, 2012-Ohio-979
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2012/2012-ohio-979.pdf
Two students violated four rules of the Chardon Local School District Code of Student Conduct, including possession of a disruptive item, possession of a tobacco product, and possession of drugs and drug-related paraphernalia. The students were suspended for 10 days and expelled for 80 days. One of the students appealed the discipline since the offenses occurred on property owned by the city of Chardon and did not occur during school hours. The Geauga County Court of Common Pleas affirmed the board’s decision to discipline, stating that the board’s decision was “supported by a preponderance of the evidence in the record of the proceedings.”
Judd appealed, arguing that the trial court erred since the suspension was “unconstitutional, illegal, arbitrary, capricious, unreasonable and unsupported by the evidence.” He also argued that school boards are without authority to enforce student conduct when such conduct does not occur at a time or place that is under the authority or protection of the board.
On appeal, the court affirmed. The court noted that the students’ attempt to sell drugs during the school day caused a disruption of the function of school, which violated the district’s policy that prohibits students from “disrupting or obstructing any mission, process, activity or function of the school.” Additionally, the court found that it was not improper for the school board to find that instruments related to drug use were “instruments disruptive to education,” in violation of a policy prohibiting students from using or possessing instruments that may be disruptive to education. As a result, the court of appeals could not find that the trial court abused its discretion in finding that the preponderance of the evidence supported the board’s finding that the students had broken the rules as set forth in their code of student conduct.
The court did not decide whether the board had the ability to enforce student conduct when the conduct does not occur on school property. The school district was able to show that the parking lot was on an easement that was given by the city of Chardon to the Chardon Local School District. As a result, the court found that the trial court did not abuse its discretion by finding that the conduct violated school rules by taking place on any “school conveyance,” as required by the code of student conduct.
New York court rules that district did not violate Title IX by denying student’s mid-year class transfer request.
Pungitore v. Barbera et al., (S.D. N.Y. March 29, 2012) Case No. 11 CV 6249
http://www.nsba.org/SchoolLaw/Issues/Equity/Pungitore-v-Barbera-No-11-6249-SD-NY-Mar-30-2012.pdf
An eighth-grade student was enrolled in an honors algebra class, but felt she was not being challenged. She discussed the matter with her mother and stated that some of her male classmates were taking an accelerated math class known as the Florida Virtual School (FVS). The student’s mother contacted the guidance counselor to request a meeting with school staff members. After the meeting, the assistant superintendent did not believe FVS was the practical route for the student, but her mother disagreed. The student was then invited to attend the FVS class and meet the teacher. After attending the class, the student indicated that the teacher patronized her and said she was only there because of her mother. The teacher determined that the student might be able to transfer to the FVS class depending upon her exam score.
The district determined that it was best for the student to complete her honors algebra class and switch to the accelerated honors math class next year. The student’s mother alleged that she was discriminated against because of her gender and disputed the district’s determination. Her mother filed suit on her behalf claiming gender discrimination.
The court ruled that the district did not violate Title IX. It held that the student did not suffer an injury because she was enrolled in a double accelerated math class at the time the lawsuit arose. The court continued by stating that a past injury cannot be relied upon because there must be a repeated injury. The student was not placed in the accelerated math class during eighth grade because she did not make a transfer request until mid-year and her math skills were lacking in some areas. The district believed it would be better for the student to start the class at the beginning of the school year. The court concluded that the mother did not have standing to bring the claim and did not provide detailed evidence of gender bias to explain why the district did not transfer the student to the class mid-year.
District court rules that school district violated Title IX by failing to provide equal treatment to plaintiff class.
Ollier v. Sweetwater Union High School Dist. S.D. Cal. Case No. 07cv714-L, 2012 U.S. Dist. LEXIS 86300 (Feb. 9, 2012)
http://www.cwlc.org/m/2012/02/Sweetwater-Findings-of-Fact-and-Conclusions-of-Law.pdf
Plaintiffs sued the district for violating Title IX. This class action suit stemmed from the district discriminating against Castle Park High School (CPHS) female athletes regarding facilities, locker rooms, equipment and supplies, travel and transportation, coaches, the scheduling of games and practice times, publicity, funding and equal athletic participation opportunities.
There were fewer coaches for female sports than coaches for male sports due to lack of coaches, more obligations and limited experience. This shortage diminished their ability to properly recruit female athletes. Another allegation of Title IX violations was the size and quality of the female locker rooms and facilities because they were inferior to the male locker rooms and facilities.
Eventually, the softball coach was terminated after complaints were made regarding the inferiority of the softball facility conditions. The district stated that the termination was a result of the coach not following proper protocol.
The court ruled that the district violated Title IX by providing unequal benefits and treatment to female athletes. The court also found the district retaliated against the plaintiff class. The softball coach’s termination, they held, was pretextual, and the district was not able to provide non-retaliatory reasoning for that action. Female athletes were not given equal athletic participation opportunities and were treated subordinately. The district was ordered to comply with Title IX and the plaintiff class was entitled to injunctive relief.
Seventh Circuit vacates summary judgment and remands for further proceedings because of the harms suffered by the girls’ basketball team.
Parker, et al., v. Franklin Cty. Cmty. School Corp., et al, (C.A.7, 2012), 667 F.3d 910
http://chronicle.com/items/biz/pdf/scheduling.pdf
Plaintiffs filed suit against the Franklin County Community School Corporation alleging discrimination against the varsity girls’ basketball team. The girls’ basketball season started two weeks before the boys’ season. During this time, the girls’ games were scheduled on prime time nights, which were evenings that preceded days without school. Prime time night games provided larger crowds and more community support than weeknight games. Once the boys’ season started the majority of the girls’ games were played during the week, which resulted in less crowds and support. During the 2009-2010 season, nearly ninety-five percent of the boys’ varsity basketball games, but less than fifty-three percent of the girls’ games, were played on prime time nights. Subsequently, the girls’ schoolwork was affected negatively by the weeknight games. Attempts made by the athletic director to increase the amount of prime time games played by the girls’ basketball team were denied.
The trial court granted the school corporation’s motion for summary judgment on plaintiffs 42 U.S.C.S. §1983 and Title IX claims. It ruled that the school corporation was entitled to sovereign immunity under the Eleventh Amendment and did not deny equality of athletic opportunities to the girls’ team. On appeal, plaintiffs argued that the discriminatory scheduling policy practices violated Title IX.
The court of appeals reversed, finding that the school corporation’s scheduling difference had a cyclical effect on the girls’ basketball team by “stifling community support, preventing the development of a fan base, and discouraging females from participating in a traditionally male-dominated sport.” The panel found the school corporation’s actions damaging and systematic. It vacated the entry of summary judgment on the Title IX and equal protection claims and remanded.
California Supreme Court finds district had special relationship with student and duty to protect from harm by third parties in sexual harassment case.
C.A. v. William S. Hart Union High School Dist., 53 Cal. 4th 861, 270 P. 3d 699 (2012)
This lawsuit stemmed from a student alleging that he was sexually harassed and abused by a school guidance counselor. The student attended Golden Valley High School in the William S. Hart Union High School District where Roselyn Hubbell was the head guidance counselor. The harassment and abuse began around January 2007. The student alleged that the counselor used her authority and required him to engage in sexual activities causing him to suffer from emotional distress, anxiety, nervousness and fear. The student filed state negligence claims against the counselor and the district for damages as a result of the sexual harassment and abuse.
The student argued that the district knew Hubbell engaged in and continued that type of behavior with minors. He also stated that not only did Hubbell cause his injuries, but the district was also at fault because they did not properly train, hire or supervise Hubbell, nor did they prevent her from harming him. The student continued by stating that the district owed him a duty of reasonable care based upon the special relationship between public school personnel and students. The district argued that there was no statutory authority to hold a public entity liable for the negligent supervision, hiring or retention of its employees. Also, the district believed that they had no special relationship with the student, but instead their relationship was with the school. The trial court agreed with the district and dismissed the claim.
The court of appeals affirmed the trial court’s decision. It found that the alleged sexual misconduct was not within the scope of Hubbell’s employment with the district, and the district could not be directly liable for negligently hiring, supervising or maintaining her employment.
The Supreme Court of California ruled in favor of the student and remanded the case to the court of appeals. The Court held that school authorities have a duty to oversee a student’s conduct on school property, and they must use reasonable procedures to protect student from foreseeable injuries caused by the negligent or intentional action of third parties. Essentially, this protection extended to the hiring, training, supervising and retention of school employees. The Court held that the district had a special relationship with the student because he was under their supervision. Based upon that relationship, the district had a duty to protect from any dangers caused by third parties while a student is on school property. Finally, the Court found that the district may be vicariously liable for the negligent actions of administrators or supervisors “in hiring, supervising or retaining a school employee who sexually harasses and abuses a student.”