School Law Summary 2013-1
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Grievance not arbitrable because it was not timely.
In the matter of arbitration between Beaver Local Education Association/OEA/NEA and Beaver Local Board of Education, Case No. 53 390 00076 11, Arbitrator Anna DuVal Smith, (July 27, 2012).
Issue: Whether the grievance was arbitrable.
Richard Shilling was employed by the Beaver Local Board of Education as a 7th grade math teacher. In 2010, Shilling applied for a wrestling coach position, but was informed in November 2010 that he was not chosen for the position. The board hired a non-bargaining unit employee who was not a Beaver Local teacher and who was less qualified than Shilling. Subsequently, Shilling filed a grievance on December 22.
The union argued that the grievance was arbitrable because it was filed within 10 days of the board appointing the new coach. In addition, the union argued that the superintendent and selection committee could not bind the board to hire the wrestling coach because a contract is not binding on a district “unless it has been made or authorized at a regular or special meeting of the school board.” The union argued that Shilling would not have known who was selected as coach when he received an email from the superintendent on November 12, 2010, because the email only stated that Shilling was not selected. Shilling testified that he would not have filed a grievance if a qualified bargaining unit employee were hired. The union alleged that because Shilling was qualified for the position, the board violated the collective bargaining agreement (CBA).
The board argued that the grievance was not arbitrable because it was filed almost six weeks after Shilling was notified that he was not chosen for the position. The board also argued that it did not violate the CBA or law because the union did not establish its burden. The board noted that RC 3313.53 requires the board to offer such position only to those employees of the district who are licensed individuals before moving to non-employees. The board believed that Shilling was not entitled to an award and that the grievance should be denied.
Award: For the board. The arbitrator ruled that the grievance was not arbitrable because it was not timely filed.
Thanks to John E. Britton, Esq., Britton, Smith, Peters & Kalail Co., LPA, Cleveland, for submitting the above arbitration decision.
Board complied with CBA regarding nonrenewal of head basketball coach’s supplemental contract.
In the matter of Arbitration between Cleveland Heights Teachers Union and Cleveland Heights – University Heights City School District, AAA Case No. 53-390-L-00452-11, Arbitrator Patricia Thomas Bittel, (August 23, 2012).
Issue: Whether the district violated the collectively bargained agreement (CBA) and board policy with respect to the nonrenewal of Grievant, who served as the boys’ head basketball coach. Grievant served as coach beginning in 2006 until the 2011-2012 school year, when he was replaced. Grievant asserted that his non-renewal was disciplinary in nature, violated required disciplinary procedures and violated applicable Board policy. The Board asserted the grievance lacked substantive arbitrability.
Award: For the board. The arbitrator acknowledged that although “the procedures for renewal [in the district] were anything but crisp and clear,” the CBA was clear that supplemental contracts were to be awarded only for one, two or three years’ duration. It made no provision for a continuing supplemental contract or a tenured coaching position. As a result, the Arbitrator found that the Grievant’s contention that his status as a coach was ongoing ran counter to applicable contract language and could not be enforced.
The Arbitrator also rejected the Union’s assertion that the Board’s action was disciplinary in nature. Nothing in the CBA led to the conclusion that the non-renewal of supplemental contracts were to be considered disciplinary in nature. The Arbitrator found that because Grievant’s supplemental contract had expired when the Board made its selection, he did not lose any contractually protected right. Once the supplemental contract expired, the CBA permitted the Board to award the basketball coaching position to anyone it found sufficiently qualified, subject to the negotiated ranking order. Having satisfied these criteria, the Board had no other contractual obligations when awarding supplemental contracts. As a result, the Arbitrator found that no arbitrable dispute had been presented to the Arbitrator.
Thanks to John Britton, Esq., Britton, Smith, Peters & Kalail Co., LPA, Cleveland, for submitting the above arbitration decision.
Board did not violate CBA when it displaced the high school’s head cook.
In the matter of Arbitration between Ohio Association of Public School Employees Local 419 and Jefferson Area Local School District Board of Education, AAA Case No. 53-390-00101-12, Arbitrator Mary Jo Schiavoni, (November 12, 2012).
Issue: Whether Grievant should have been displaced from her position as head cook in the district by another employee through the exercise of a claimed discretionary right to return in violation of the collective bargaining agreement.
Grievant was hired as a Cafeteria Monitor in October 2006. She was laid off in September 2009, but awarded a 3-hour cook position at the high school. In 2011, she was awarded a 4-hour cook position. A head cook position opened at one of the district’s elementary schools. The head cook at the high school, Denise Kapferer, requested to be transferred into the vacant position at the elementary school. The union agreed to waive the CBA posting period and the district placed Kapferer into the position. Grievant successfully bid for the newly vacated head cook position at the high School.
Within a few weeks, Kapferer expressed dissatisfaction with the elementary school head cook position and requested to return to her position at the high school. Grievant was returned to her former 4-hour cook position at the high school and was temporarily transferred to the head cook position at the elementary school for a period not to exceed 60 days. The district bid the elementary school head cook position, and although the Grievant applied for the position, the district awarded the position to another district employee with more seniority.
Award: For the board. The CBA contained language that allowed employees who were selected to fill a vacancy to choose to be reassigned to their former position within a period of 30 days. Although the union president agreed to dispense with the posting period, there is no evidence that the parties intended to waive the employee’s right to be reassigned to her former position. Kapferer’s return to the head cook position during the 30-day period was the result required by the proper application of the contractual language. The Arbitrator found that the results of the Grievant returning to her position as a 4-hour cook were all carried out in accordance with the CBA. As a result, the Arbitrator found that the district did not violate the parties’ collective bargaining agreement when it displaced the Grievant from her position as Head Cook in the high school and allowed another employee the right to return to that position.
Thanks to John Britton, Esq., Britton, Smith, Peters & Kalail Co., LPA, Cleveland, for submitting the above arbitration decision.
District Court for Southern District of Ohio rejects motion to dismiss after district failed to respond to disability-based bullying of student.
Galloway v. Chesapeake Union Exempted Village Sch. Bd. of Edn., S.D. Ohio No. 1:11-cv-850 (Oct. 23, 2012).
http://scholar.google.com/scholar_case?case=11326973515703460956&hl=en&as_sdt=2&as_vis=1&oi=scholarr
A student of Chesapeake Union Exempted Village Schools was diagnosed with Asperger’s Disorder, ADHD, seizure disorder and specific learning disabilities. He was identified as a student with a disability pursuant to the Individuals with Disabilities in Education Act (IDEA), the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act.
Since 2005, the student allegedly had been the victim of disability-based discrimination, harassment, and bullying by both the teachers and students in the Chesapeake school system. After each incident, the student’s parents would inform school officials what had happened and asked for help, but at each step, they alleged that school officials did nothing to stop the bullying, including failing to rein in the teachers who were perpetrating the bullying and/or encouraging it. As a result of the bullying, the student suffered physical injuries and emotional distress. His parents also alleged they suffered emotional distress as a result of seeing their son endure the bullying. The parents filed suit against the district alleging, among other things, substantive due process, equal protection, ADA, Section 504 and Title IX causes of action. The district filed a motion to dismiss.
The court dismissed the substantive due process claim since the claim failed to state the underlying constitutional right that district employees allegedly violated. The court found that the equal protection claims failed to allege any direct causal link between a policy and the alleged disparate treatment. The court dismissed the equal protection claim against the school board. However, because the claims made factual allegations that district employees knew about the disparate treatment yet did nothing to remedy the problem, the court found that the claims against the defendants in their individual capacities were appropriate.
The court denied the district’s request to dismiss the claims for disability and sex discrimination, finding that the parents alleged sufficient facts to maintain that their son was discriminated against due to his disability and/or “on the basis of sex.” The court additionally denied the district’s request to dismiss the negligence claims, finding that a jury could conclude that the district employees conduct fell within one of the exceptions to immunity under Ohio Revised Code section 2744.03.
Washington court rules in favor of school district because prima facie case of defamation not established.
Sisley v. Seattle Sch. Dist. No. 1, Wash. Ct. App. No. 67552-4-I, 286 P. 3d 974 (July 30, 2012).
http://www.courts.wa.gov/opinions/pdf/67552-4.cor.doc.pdf
The March 2009 edition of a Seattle high school’s student newspaper included an article written about the development plans of certain properties owned by Hugh Sisley and his brother that surrounded the district’s high school. Sisley and his wife filed a lawsuit against the district alleging defamation. They claimed the article was false, libelous and caused damages. The Sisley’s argued that the article’s statement of “the Sisley brothers have also been accused of racist renting policies” was particularly defamatory. The district moved for summary judgment.
At the trial court, the district submitted eleven articles that previously were published in area newspapers. The articles described the “deplorable conditions” of the Sisley brothers rental properties, called them “slumlords,” and discussed their relationship with the founder of a white supremacist organization. The trial court granted the district’s motion for summary judgment. The Sisley’s appealed.
On appeal, the Sisley’s alleged that the trial court erred when it failed to exclude the eleven articles submitted by the district. Additionally, the Sisley’s argued that the articles were irrelevant, unduly prejudicial and inadmissible as hearsay. The court of appeals found the articles to be “relevant to multiple issues presented on summary judgment, including (1) whether the allegedly defamatory statement was false, (2) whether the district knew, or should have known in the exercise of reasonable care, that the statement was false, and (3) whether the Sisley’s reputations would not have been damaged but for the allegedly defamatory statement.” In addition, the court found the articles to be relevant and admissible because they appeared to demonstrate facts of consequence to the determination of the defamation claim. The Sisley’s did not prove that the danger of unfair prejudice would outweigh the probative value of the articles.
As a result, the court of appeals ruled that the Sisley’s failed to establish a prima facie case of defamation because they did not prove the element of falsity. The court affirmed the trial court’s ruling.
Alabama court determines that school resource officers used excessive force.
J.W. v. Birmingham Bd. of Edn., N.D. Ala. No. 2:10-cv-3314-AKK (Oct. 3, 2012).
Numerous students filed a lawsuit alleging that an Alabama school district’s school resource officers (SROs) violated their constitutional rights by using a chemical spray, Freeze+P, on them for minor school infractions. The students also claimed that the SROs did not follow the proper decontamination procedures after the students were sprayed, and as a result, the students suffered from the side effects of the chemical spray for several hours.
The SROs were stationed at city high schools to help with discipline and make arrests. They were Birmingham Police Department (BPD) officers and were authorized to carry and use chemical spray to handle violations of the law when needed. The BPD did not have a specific policy on SROs using chemical spray, but the SROs were required to follow BPD’s general policy on “Chemical Spray Subject Restraint: Non-Deadly Use of Force.”
The students sought declaratory and injunctive relief against the BPD chief in his official capacity, arguing that he was responsible for the “Chemical Spray Subject to Restraint: Non-Deadly Use of Force” policy. The students argued that the policy was unconstitutional. In addition, the students argued that the SROs use of excessive force violated the Fourth and Fourteenth Amendments.
The board moved for summary judgment and argued that qualified immunity applied. The court noted that officials must prove that they were engaged in a discretionary function when the alleged unlawful act took place in order to raise qualified immunity as a defense. The court ruled that the chief was not entitled to qualified immunity in his official capacity, but was entitled to qualified immunity in his individual capacity regarding the excessive force claims because he did not violate a clearly established constitutional right.
The court determined that the alleged behavior of the students did not warrant the use of force applied by the SROs under the circumstances. Additionally, the court found that the students were not acting in a violent, disruptive, aggressive, threatening or unlawful manner as alleged by the board. However, the court ruled that a jury must ultimately decide whether the students posed a threat. The court also found that the students rights were established, and it was unreasonable for the SROs to believe that using chemical spray was appropriate. In addition, the court ruled that a reasonable jury could determine that the defendants conduct violated the Fourth and Fourteenth Amendments if taken in a light favorable to the students.
New York school district did not violate First Amendment for suspending student who threatened to blow up the school.
Saad-El-Din v. Steiner, 101 A.D.3d 73 (N.Y. App.Div.3d Dept 2012).
http://decisions.courts.state.ny.us/ad3/Decisions/2012/514071.pdf
A ninth grade student at the high school stated to some fellow students and a teacher that he was “going to just blow this place up” and warned them not to come to school on Friday. The teacher reported the student’s statements to the assistant principal, stating that although she didn’t believe the statements to be a direct threat towards her, she didn’t know the student well enough to know whether there was any validity to his threats. Administrators contacted the student’s father and the police.
The student was suspended immediately from the high school for five days and charged with having engaged in conduct that is insubordinate, disorderly, violent, disruptive and/or a danger to the safety, morals, health, or welfare of himself and/or others, and a violation of the high school’s code of conduct. A hearing was held, after which the hearing officer found the student guilty of the charge and recommended that he be suspended for an additional 25 days. The school board affirmed the recommendation. After the student’s parents exhausted their administrative appeals, they commenced an action in state court, seeking to vacate the Commissioner of Education’s dismissal of their appeal and to have the suspension expunged.
The student’s parents contend that the decision to suspend the student for making the statements at issue, absent evidence of or a determination that he actually intended to carry out the threat, was arbitrary and capricious and violated his First Amendment right to freedom of speech. The court rejected this argument, finding that the relevant inquiry focused on whether the student’s conduct “might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.”
In this case, the court found that although none of the witnesses testified that they understood the student’s words to mean that he intended to engage in the expressed violent conduct, it was nevertheless reasonably foreseeable that such a threat to “blow up the school” would create a substantial disruption within the school. As a result, the court concluded that the decision of the school officials to suspend the student did not violate the student’s constitutional right to free speech.
Eighth Circuit determines that website created by Missouri students was not protected speech.
S.J.W. v. Lee’s Summit R-7 Sch. Dist., 8th Cir. No. 12-1727 (Oct. 17, 2012).
http://www.ca8.uscourts.gov/opndir/12/10/121727P.pdf
In December 2011, two brothers created a website that contained racist, offensive, sexually explicit and degrading comments. One of the brothers uploaded files onto the website with a school computer and others accessed the website using district computers, but the records did not identify the names of those who accessed the site.
The brothers were suspended after administrators determined that they were responsible for the website. The brothers sued the district, seeking a preliminary injunction to lift the suspensions. The brothers testified that the posts were supposed to be “satirical” and denied that they were racist. They also testified that a third student, who posted racist comments, caused the disruption in school. District administrators believed further disruption would ensue if the brothers returned to the high school early. The district court granted the brothers motion for a preliminary injunction. The district appealed.
The district argued that it would not be able to enforce the remaining time on the suspensions if the brothers graduated before a final decision was made on the merits. The district alleged that the district court improperly shifted the burden to the district “when the district court suggested that the case could be resolved by summary judgment motions during the summer of 2012.”
The brothers argued that the website was protected free speech and did not cause a substantial disruption at the school. However, they alleged that the third student’s posts caused disruption. The brothers also argued that the “Communications Decency Act” (CDA) protected them from punishment. The CDA states “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
The court of appeals determined that the district court’s findings did not support the relief that was granted because irreparable harm was not established to issue a preliminary injunction. The court noted that “student speech that causes a substantial disruption is not protected.” In addition, the court of appeals determined that any future harm to the brothers was speculative and did not support a preliminary injunction. As a result, the district court’s ruling was vacated, and the preliminary injunction was reversed.
Minnesota court rules that the district violated student’s first amendment rights for regulating off-campus speech.
R.S. v. Minnewaska Area Sch. Dist. No. 2149., Dist. Minn. No. 12-588 (MDJ/LIB) (Sep. 6, 2012).
http://www.nsba.org/SchoolLaw/Issues/StudentRights/RS-v-Minnewaska-Area-School-District.pdf
R.S. was a sixth grade student in the Minneswaska Area School District. R.S. posted a message on her Facebook account wall stating that she “hated” an adult school hall monitor. The principal was notified about the message, informed R.S. that it was impermissible bullying and disciplined R.S. for the message. R.S. posted a second message using profanity and was disciplined again.
In March 2011, school officials questioned R.S. about internet communications she had with a male student that were sexual in nature. R.S. alleged that she was forced to provide school officials with the username and password to her email and Facebook accounts. The officials threatened to discipline her if she did not provide them the information. R.S. provided them with the information because she felt threatened, but she was never asked for permission to nor did she consent to a search of her private accounts.
R.S. filed a lawsuit. The district argued that R.S. did not establish that the actions of the school officials were performed in accordance with a custom or policy. In addition, the district argued that the claims against individual school officials in their official capacity should be dismissed because they were duplicative.
R.S. argued that the complaint alleged sufficient facts to show a pattern of student discipline for speech that occurred outside of school and for school officials searching a student’s private online account. R.S. agreed that the district did not have a written policy regarding regulating student online communications. However, R.S. argued that she was disciplined twice for her online communications, which was evidence of the principal’s policymaking. The district court determined that R.S. “alleged facts sufficient to show at least customs, if not policies, of the challenged behavior” by the district.
In addition, the court ruled that out-of-school student statements are protected under the First Amendment unless “they are true threats or reasonably calculated to reach the school environment and egregious as to pose a serious safety risk or other substantial disruption.” However, the court ruled that the posts were not threats and would not likely cause a substantial disruption to the school environment.
The court denied the district’s motion for qualified immunity because R.S.’s right to speak without school interference was established. Her speech was nonviolent, nondisruptive and occurred outside of school. In addition, R.S. had a reasonable expectation of privacy regarding her private Facebook information and messages. The court ruled that the district did not establish a legitimate school interest for searching R.S.’s private communications, nor did school officials believe they would find evidence of illegal behavior or violations of school policy. As a result, the court found that R.S. stated valid claims for First and Fourth Amendment violations.
INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Pennsylvania district did not violate child find provisions when it consistently monitored, documented and responded to student’s individual educational needs.
D.K. v. Abington Sch. Dist., 696 F.3d 233 (3rd Cir.2012).
http://www.ca3.uscourts.gov/opinarch/102189p.pdf
This case required the court to determine whether a public school district’s failure to designate a struggling student as “disabled” violated the Individuals with Disabilities Education Act (IDEA).
When the student began kindergarten with the district in the fall of 2003, he struggled with reading and misbehaved regularly. At the conclusion of the school year, the district recommended that the student repeat kindergarten. Although his second year of kindergarten was better, he showed little maturation and his teachers expressed concerns about the student’s behavior. Forty-three tantrums were documented between March and May 2005.
In response, teachers implemented “behavior plans” including a sticker chart and a system using Popsicle sticks, but did not conduct a functional behavioral assessment. The student’s parents were optimistic about, and cooperative in, these behavioral improvement plans. However, at the end of the year, the student’s parents and the district shared a concern about how well the student would behave in first grade.
When the student’s behavior issues continued into the first grade, his teacher recommended measures that the parents could implement at home. The possibility of a formal evaluation was not discussed at that time. In April 2006, the student’s parents requested an evaluation and the district administered a cognitive ability test. The district’s psychologist concluded that the student’s scores placed him in the average and low-average ranges and that the student was not in need of special education services. He advanced to the second grade.
In January 2007, the student began seeing a private therapist who informed the district that she was “extremely convinced” that the student needed special placement. Outside testing had diagnosed the student with “auditory processing” and “sensory stimulation” problems. The district’s second round of testing determined that the student was eligible for special education services as a student with “another health impairment” and he was offered an individual education program in November 2007.
In January 2008, the student’s parents requested a due process hearing and requested an award of compensatory education for September 2004 through March 2008. The state agency hearing officer denied the parents’ claims. The appeals panel found no abuse of discretion and affirmed the hearing officer’s findings. The district court affirmed the state agency, concluding that the district did not violate its obligation to identify students in need of special education.
The court affirmed the judgment of the district court, finding that the district consistently monitored, documented and responded to the student’s individual educational needs. The student’s teachers held numerous conferences with his parents at which they described in detail the student’s misconduct, frustration, challenges, and development. The district proposed solutions, but did not imply that these measures would succeed or eliminate the eventual need for an evaluation.
The court held that schools “need not rush to judgment or immediately evaluate every student exhibiting below-average capabilities, especially at a time when young children are developing at different speeds and acclimating to the school environment.” The court also held that neither the failure to employ a functional behavioral assessment nor a subsequent disability finding is per se indicative of an inappropriate evaluation. As a result, there was no child find or free appropriate public education violation.
INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Alabama school board required to reimburse parents for independent educational evaluation services obtained for student.
Phillip C. v. Jefferson Cty. Bd. of Edn., 11th Cir. No. 11-14859 (Nov. 21, 2012).
http://www.ca11.uscourts.gov/opinions/ops/201114859.pdf
A.C. received special education services. In 2005, his parents transferred him to a private facility, and obtained an independent educational evaluation (IEE) for him because they disagreed with the board’s assessment of his current level of functioning. However, the board refused to reimburse the parents for the IEE. The parents requested a due process hearing after the board refused to reimburse them. The hearing officer ruled that the board was required to “pay for the IEE, and the parents were entitled to reimbursement.” However, the board still refused to pay, and the parents filed a claim in the district court. The district court ruled in favor of the parents. The board appealed.
On appeal, the board argued that IDEA did not require state and local agencies to finance a parent’s IEE, that the hearing officer did not have the authority to require reimbursement, and that the IEE did not qualify for reimbursement.
The court noted that one of the provisions of IDEA was to allow parents to obtain an IEE at public expense if the parents disagreed with the public agency’s evaluation. In addition, the court stated that Congress did not alter a parent’s right to receive an IEE that was publicly financed. “The Supreme Court has acknowledged that states must reimburse parents for the cost of an IEE in order to ensure that parents can exercise their right to an independent expert opinion, which is an essential procedural safeguard.”
The court of appeals also ruled that the Secretary of Education did not exceed his authority by giving parents the right to have an IEE publicly financed. As a result, the court found the district court did not err, and the board was required to reimburse the parents for the IEE.
INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Second Circuit refuses to adopt “four corners rule” and concludes that use of “retrospective testimony” must be limited to services described in student’s IEP.
R.E. v. New York City Dept. of Edn., 694 F.3d 167 (2nd Cir.2012).
http://caselaw.findlaw.com/us-2nd-circuit/1612106.html
The parents of three autistic children declined public school placements offered by the New York City Department of Education and placed their children in private schools. The parents brought due process claims against the Department for tuition reimbursement on the grounds that the Department’s public school placement offers for their children were inadequate. In each case, the parents were initially granted relief following a hearing before an impartial hearing officer (IHO), but subsequently were denied relief after the IHO’s decision was reversed on appeal by the state review officer (SRO). In reaching its decision, the SRO relied in part on testimony about the educational program the student would have received had he or she attended public school. In each case, the parents sought to have the SRO’s decision reversed by the appropriate US District Court and, in two of the three cases, they succeeded. The Department of Education appealed on those two cases and the parents of the student in the third case also appealed. The appeals were held in tandem due to common questions of law.
On appeal, the parents challenged the appropriateness of relying on “retrospective testimony,” i.e. testimony that certain services not listed in the IEP would actually have been provided to the child if he or she attended the school district’s proposed placement. The parents urged the court to adopt a rigid “four corners” rule prohibiting any testimony about services beyond what was written into the IEP.
The United States Court of Appeals for the Second Circuit refused to adopt a four corners rule, but concluded that the use of retrospective testimony about what would have happened if a student had accepted the Department’s proposed placement must be limited to testimony regarding the services described in the student’s IEP. The court held that the IEP must be evaluated prospectively as of the time of its drafting. Therefore, any retrospective testimony that the school district would have provided additional services beyond those listed in the IEP, may not be considered. The court stated that its ruling was designed to recognize the critical nature of the IEP as the centerpiece of the IDEA system, ensure that parents have sufficient information on which to base a decision about unilateral placement, and put school districts on notice that they must include all of the services they intended to provide in the written plan.
Supreme Court of Ohio rules that itemized attorney billing statement is not protected by the attorney-client privilege.
State ex rel. Anderson v. Vermilion, 2012-Ohio-5320.
http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2012/2012-ohio-1868.pdf
Jean Anderson was a former mayor of the city of Vermilion. In May 2010, after she was no longer mayor, she made a public records request for “all itemized billing statements received” from law firms that provided legal services to the city, from January through April 2010. However, the city denied Anderson’s request and stated that the legal bills were exempt from disclosure under the attorney-client privilege.
Subsequently, Anderson filed a writ of mandamus in the court of appeals to compel the city to provide the nonexempt portions of her public records request. She also requested statutory damages and attorney fees. However, the court granted an alternative writ, and the city submitted an answer to the petition. Anderson then filed a motion for summary judgment. The court of appeals granted summary judgment in favor of the city and denied the writ. Anderson appealed.
On appeal, the city argued that the itemized attorney-billing statements Anderson requested were exempt from disclosure due to the attorney-client privilege. The city also argued that Anderson waived her right to the nonexempt portions of the attorney-billing statements because she waited until after the court of appeals ruling to request summaries of the information in the attorney bills that included attorney-client information. The Supreme Court of Ohio ruled that Anderson did not waive her right because the public records request that came after judgment was for records from a different time period.
The city also argued that it did not have to provide Anderson copies of the non-exempt portion of the requested attorney-billing statements because, after the city redacted the sections that were covered by the attorney-client privilege, the remainder of the request would be meaningless.
The Court ruled that Anderson’s claim for records from January 2010 through April 2010 was not moot, and she was entitled to those statements after redaction of items covered by the attorney-client privilege. The Supreme Court affirmed the denial of Anderson’s motion for summary judgment, and held that it did not abuse its discretion in denying her request for statutory damages and attorney fees because “a large part” of the requested statements were exempt from disclosure. The Court reversed the court of appeals ruling in favor of the city and remanded for further proceedings.
Ohio Supreme Court denies writ related to public records request for metadata.
State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St. 3d 139, 2012-Ohio-4246.
http://www.sconet.state.oh.us/rod/docs/pdf/0/2012/2012-Ohio-4246.pdf
In 2010, a 73-count criminal indictment was returned in Mahoning County Common Pleas Court. The specific offenses included engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money laundering, conflict of interest, filing false financial- disclosure statements and soliciting or accepting improper communications. The indictment charged that a developer conspired with elected officials, the former county Jobs and Family Services (JFS) director, and others to try to prevent JFS from leaving the developer’s mall and relocating to another plaza purchased by the county.
John McCaffrey, counsel for multiple defendants named in the indictment, requested documents from the Mahoning County Prosecutor’s Office under Ohio’s Public Records Act. Among other things, he requested records about any support that county prosecutors provided to the special prosecutors appointed in the matter, communications between the judge and the members of the grand jury and communications between those grand jury members and county prosecutors. McCaffrey requested both paper and electronic records responsive to his request.
The prosecutor’s office produced some of the requested documents, but declined to produce others. McCaffrey filed a mandamus action with the Ohio Supreme Court, alleging that the prosecutor’s response “included documents that existed in an electronic database and/or format, but…did not contain metadata concerning these documents; therefore the responses are incomplete.” Metadata is defined as “secondary data that organizes, manages, and facilitates the use and understanding of primary data.” The prosecutor’s office alleged that McCaffrey was not entitled to the requested metadata because he did not specifically request it.
The court agreed with the prosecutor’s office, finding that McCaffrey’s request for “records” was not specific enough for the prosecutor’s office to know that the “documents” requested were to include metadata. With regard to McCaffrey’s request for attorney calendar information, the court held that McCaffrey was entitled to the requested records to the extent that such information contained work-related entries. As a result, the court denied the writ for most of McCaffrey’s claims, but granted the writ to compel the prosecutor’s office to provide copies of those portions of the requested calendars that were work-related entries.
Ohio court rules that school board acted properly when suspending the contracts of nonteaching school employees.
Williams v. Clinton Massie Local Sch. Dist., 2012-Ohio-3537.
http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2012/2012-ohio-3537.pdf
Anna Williams and Brittany Henry were employed as custodians by the board. In 2009, the board implemented a reduction in force affecting Williams, Henry and another employee named Sandra Achor. Williams and Henry’s contracts were suspended due to financial reasons because they were the “least senior custodial employees working under limited contracts.” However, Achor only received a partial reduction in force and was moved from a salaried position to an hourly position. During this time, the board hired a third-party vendor to conduct supervisory services over the custodians.
Williams and Henry sued the board, contending that their contracts were improperly suspended. However, the trial court ruled in favor of the board and determined that neither the third-party nor Achor replaced Williams and Henry. Williams and Henry appealed.
On appeal, Williams and Henry argued that their contracts were suspended because: “(1) the board wished to replace them with a third-party vendor; (2) the former superintendent wished to keep Achor employed even though she was the least senior custodian; and (3) the former superintendent did not like Williams and expressly targeted the reduction in force so that Williams would lose her job.” The court of appeals ruled that there was no evidence proving that Williams and Henry were laid off upon the hiring of the third-party vendor. In addition, the contract with the third party-vendor was for supervisory services only, and the-third party vendor was hired three months prior to the suspension of both Williams and Henry’s contracts.
The court ruled that the board never ordered the third-party vendor to perform regular custodial duties. As a result, the court determined that the board acted appropriately and followed the requirements of RC 3319.172 when it suspended the contracts of the least senior nonteaching employees due to a reduction in force.
Florida court enjoins district from barring student’s distribution of religious invitations during non-instructional time.
Gilio v. Sch. Bd. of Hillsborough Cty, M.D. Fla. No. 8:12-CV-955-T-27EAJ (Oct. 5, 2012).
http://docs.justia.com/cases/federal/district-courts/florida/flmdce/8:2012cv00955/271000/42/0.pdf
A fourth-grade student filed a motion for a preliminary injunction to stop the district from barring the student’s distribution of religious invitations during non-instructional time at school. The student sought to distribute invitations for a church-organized Easter egg hunt.
Two board policies governed the distribution of literature from outside organizations and regulated school-sponsored publications and productions. The principal refused to let the student pass out the fliers, claiming that the district’s policies prevented the school from passing out fliers related to religious events or activities. The student contends that the policies were unconstitutional for restricting student speech and impermissibly discriminating on the basis of content and viewpoint.
The court held that the student’s motion for preliminary injunction should be granted. The court believed that the school board’s concern that permitting the student to distribute his invitations would violate other students’ rights to be free from religious messages in school erroneously assumes that individuals’ First Amendment privileges stop “at the schoolhouse gate.” The court held that a school district could not prohibit a student’s “private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” The court found that the student showed that the school board’s conduct likely violated the student’s First Amendment rights because the record is devoid of any evidence that permitting the student to distribute his invitations would have caused a material or substantial interference with schoolwork or discipline. Because the student was able to show a substantial likelihood of success on his claim that the school board’s policies were unconstitutionally applied to the student’s speech, the court felt that a preliminary injunction was appropriate.
The student was also able to show that because the school board’s policies targeted proselytizing messages solely from a religious perspective, there was a likelihood of success on the merits of her claim that the board policies were unconstitutional viewpoint-based discrimination.
Louisiana court rules that public dollars raised and allocated for public schools cannot be distributed to nonpublic schools or entities.
Louisiana Fed’n of Teachers v. State of Louisiana, 19th La. Dist. Ct. No. 612733 (Nov. 30, 2012).
http://la.aft.org/files/kelley_ruling.pdf
The plaintiffs filed a lawsuit challenging the constitutionality of Act 2 of the 2012 Regular Session of the Louisiana Legislature and Senate Concurrent Resolution 99 (SCR 99) of the 2012 Regular Session of the Louisiana Legislature. Act 2 requires the payment of Minimum Foundation Program (MFP) funds to nonpublic schools and the transfer of scholarship payments to each participating school on behalf of the responsible city or parish school district [by the Louisiana Department of Education].
The plaintiffs argued that Act 2 and SCR 99 unconstitutionally sent MFP funds that were mandated for public elementary and secondary schools to nonpublic entities. In response, the state argued that Act 2 and SCR 99 did not divert “MFP funds guaranteed to public schools because their share of per pupil funds from the MFP would not change.” However, the state believed SCR 99 and Act 2 had no bearing on local funding.
In addition, the plaintiffs argued that MFP funds could only be spent on public education and allocated to the public school system. The state alleged that the Board of Elementary and Secondary Education (BESE) could distribute the MFP funds as it saw fit. The state also contended that the Louisiana Constitution did not prevent the MFP funds from being used as SCR 99 or Act 2 described.
The court ruled that both SCR 99 and Act 2 unconstitutionally diverted MFP funds to nonpublic entities when the funds should have been allocated to public elementary and secondary schools. The court noted that the Constitution limits the use of MFP funds to public elementary and secondary schools. The funds were not meant to go to private educational providers. The court found that BESE acted outside the scope of its authority regarding the distribution of MFP funds.
In addition, the court noted that the plaintiffs established that the state was not using local funds to pay for the school voucher program because the state did not have access to the local accounts that maintained the funds. As a result, the court issued a declaratory judgment for the plaintiffs since Act 2 and SCR 99 were “unconstitutional diversions of MFP funds to nonpublic entities.” This case is currently on appeal.
Ohio Court of appeals upholds denial of district’s motion to dismiss after student is allegedly sexually assaulted on a school bus.
N.A.D. v. Cleveland Metro. Sch. Dist., 8th Dist. No. 97195, 2012-Ohio-4929.
http://scholar.google.com/scholar_case?case=12875807658164896515&hl=en&as_sdt=2&as_vis=1&oi=scholarr
In December 2010, a parent filed a complaint against the school district, alleging that her daughter was sexually assaulted on a school bus by two other students. The parent alleged that her daughter sustained serious emotional distress as a result of the incident, and that the district’s acts and omissions constituted wanton misconduct and a reckless disregard to the student’s safety. The parent alleged that the district “acted negligently, recklessly, and/or wantonly by proceeding to operate the bus along the route without stopping to inspect the students and protect her daughter from the abuse which was known, or should have been known to be ongoing.”
The district filed a motion to dismiss, claiming that it was immune to the parent’s claims under RC Chapter 2744. The district alleged that the operation of a school bus does not include the supervision of students who are passengers on the bus. The trial court denied the district’s motion without explanation. The district appealed.
On appeal, the court of appeals affirmed. In previous cases, the Ohio Supreme Court acknowledged that the transportation of students on a school bus constitutes a governmental function. Other cases also acknowledged that the operation of a motor vehicle encompassed more than the mere act of driving the vehicle involved. In this case, the court found that the facts were sufficient to overcome the district’s motion to dismiss.
The district also argued that the bus driver was entitled to individual immunity as an employee of a political subdivision. The district argued that the parents had not alleged any facts to show that the driver’s “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner” that would have exempted him from immunity under the statute. However, the court found that the parent’s complaint was factually sufficient for the purpose of overcoming the district’s motion to dismiss. As a result, the court affirmed the trial court’s denial of the district’s motion to dismiss.
Second Circuit rules that New York school district was deliberately indifferent to student on student harassment.
Zeno v. Pine Plains Cent. Sch. Dist., 2nd Cir. No. 10-3604-cv (Dec. 3, 2012).
http://www.justice.gov/crt/about/app/briefs/zenoopinion.pdf
A student transferred to Stissing Mountain High School (SMHS) in the Pine Plains Central School District. Within the district, minority students made up a small population of the student body. The student, who is bi-racial, was harassed by his classmates. His mother informed the principal about her concerns, but the principal did nothing to stop the harassment.
For the remainder of the 2005 school year, the student was harassed and subjected to racial name-calling. He informed school officials of the incidents, and his mother wrote letters to district officials. The superintendent did not offer to meet with the parent and did not notify the principal that she received the letters. Eventually, the district disciplined the students involved with a warning and/or suspension, but “did not implement other remedial measures in response to the student harassment”, at ¶ 9.
During the student’s second year at SMHS, a faculty member reported the racially offensive comments, directed towards the student, to school officials. The district suspended the other students involved and even moved one student to another school. The student’s attorney contacted the district and requested that he receive a “shadow” that would accompany him at school, and also requested that the district implement racial sensitivity programs to underscore the district’s zero tolerance of racism and bias.
In response, the district prepared an IEP for the student to help him deal with the school environment.
The student continued to be harassed during his junior and senior years. After graduation, he filed a lawsuit against the district alleging discrimination in violation of Title VI. The jury returned a verdict in favor of the student and awarded him $1.25 million in damages. The district then renewed its motion for judgment as a matter of law and moved for a new trial. In response, the district court granted the motion for a new trial “subject to Zeno accepting a reduced award” in the amount of $1 million. He agreed to accept the lesser award, and the district appealed.
On appeal, the district argued that the court erred by denying its motion and that the reduced damages were still excessive. The district also argued that it was not deliberately indifferent to the harassment that Zeno received. However, the court of appeals determined that reasonable jurors could have determined that the harassment of the student was severe, pervasive and objectively offensive due to the continuous harassment over the years. Additionally, the court of appeals found that the jury could have determined that the student was deprived of educational benefits as a result of the harassment because: “(1) he was deprived of a supportive, scholastic environment free of racism and harassment; (2) he accepted an IEP diploma instead of finishing his studies at SMHS; and (3) he was forced to leave SMHS.”
The court of appeals affirmed the lower court’s denial of the district’s motion for judgment as a matter of law and determined that there was support for an award of $1 million.
Court of appeals holds that reasonable exercise of professional judgment cannot constitute conduct unbecoming to the teaching profession.
Orth v. State of Ohio Dept. of Edn., 10th Dist. No. 12AP-155, 2012 Ohio 4512.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2012/2012-ohio-4512.pdf
Stacy Orth served as a teacher in the Columbus Public Schools for 25 years with no history of misconduct or disciplinary actions. In October 2009, she restrained an out-of-control student. As a result of the restraint, the student had scratches and red marks on his lower back and buttocks. The teacher did not have first aid administered immediately, but allowed the child to proceed home on a school bus.
Orth also did not immediately fill out the paperwork reporting her encounter with the student and his minor injuries. Based on these facts, charges were filed with ODE, alleging that Orth should lose her teaching license for engaging in conduct that is or was “unbecoming” to her teaching position. ODE held that Orth should lose her license, which Orth appealed. The trial court upheld the decision, and Orth appealed to the court of appeals.
The court acknowledged that “conduct unbecoming” is not clearly defined by statute or case law in Ohio. The court found that Orth made a reasonable professional judgment that resulted in better treatment for the scratches and removed the risk of another uncontrollable fit, which would have been the child’s third fit for the morning. The court found that they could not interpret the statute in such a way as to make Orth’s handling of the first aid treatment for scratches as conduct unbecoming a classroom teacher. The court held that “teachers are called upon to make professional judgments every day and the reasonable exercise of such professional judgment cannot constitute…conduct unbecoming a classroom teacher.”
Sixth Circuit rules that Michigan employees’ terminations did not deprive them of a property or a liberty interest.
Greer v. Detroit Pub. Sch.’s, 6th Cir. No. 11-2249 (Dec. 6, 2012).
http://www.ca6.uscourts.gov/opinions.pdf/12a1262n-06.pdf
The plaintiff class was employed as security guards for the Detroit Public Schools (DPS) and were part of the district’s union. In 2009, the district laid off twelve members of the security-officer workforce due to a reduction in work, and replaced them with twelve officers from a private security firm. On July 29, 2010, DPS notified the plaintiff class that their employment was terminated effective July 30, 2010. The plaintiffs believed they were terminated due to excessive absenteeism after an online press release posted on DPS’ website stated that the district had hired a private security firm, which among other things would reduce absenteeism among security personnel.
The union filed an unfair labor practice claim against DPS, claiming that DPS violated the Public Employment Relations Act (PERA) by refusing to “acknowledge a bid for services, refusing to bargain for a lower cost collective bargaining agreement (CBA), and refusing to allow the union to submit a bid prior to negotiating” with the private security firm.
The administrative law judge ruled that the union did not submit a proper bid, and that PERA prohibited the CBA from creating a protected property interest to a continued right of employment for the plaintiff class. As a result, the administrative law judge granted summary judgment in favor of DPS. Subsequently, the parties went to arbitration after the union filed grievances alleging that DPS violated the employees’ procedural due process rights. The arbitrator denied the grievances.
The plaintiff class filed a lawsuit against DPS and the union. They alleged that the union breached its duty of fair representation. In addition, the plaintiff class alleged that both the union and DPS entered into a joint operating agreement to retain the private security firm. Initially, the trial court granted summary judgment in favor of DPS, but later entered a preliminary injunction and required DPS to rehire the terminated union members. The court of appeals then vacated the injunction and ruled that the plaintiff class had not demonstrated irreparable harm.
On appeal, the plaintiff class argued that DPS deprived them of property without due process of law. The court found that the plaintiff class did not sufficiently allege facts that established a viable due process claim amounting to a deprivation of property. In addition, the plaintiff class alleged that DPS deprived them of their liberty without due process of law. The court noted that an injury to reputation alone does not create a protected liberty interest.
The plaintiff class alleged that DPS violated their liberty interests by posting an online press release that discussed absenteeism among security personnel. However, the court found that the press release would not prohibit them from seeking alternate employment, and they failed to establish that the claims for absenteeism fell outside the “umbrella of improper or inadequate performance, incompetence, neglect of duty, or malfeasance.” Lastly, the court determined that the plaintiff class did not specifically identify those who were injured. As a result, the court affirmed the district court’s ruling for summary judgment.
Georgia bus driver was not denied substantive due process rights when district allowed him to submit materials to the school board for their consideration.
Strickland v. Columbia Cty. Bd. of Edn., 11th Cir. No. 12-12231 (Nov. 6, 2012).
http://www.ca11.uscourts.gov/unpub/ops/201212231.pdf
In 1995, Bobby Strickland was hired as a school bus driver. In 2009, he was involved in an incident while on his bus route. Several students confirmed that they saw Strickland push one student into a seat and another down the bus stairs. Students said they saw Strickland yelling and reading from a clipboard while the bus was in motion, and that they believed Strickland to be out of control.
After the incident, the board’s transportation director met with Strickland twice to discuss the incident and informed Strickland that he would be recommending termination. He explained Strickland’s option to appeal to the assistant superintendent. Strickland filed an appeal. After meeting with Strickland, the assistant superintendent and superintendent recommended termination. Strickland appealed the termination to the board, which voted unanimously to approve Strickland’s termination. Members of the board declined to grant Strickland a hearing on the matter, noting that the information before them was sufficient to permit a reasoned decision. Strickland filed a complaint in state court alleging that, in terminating his employment, the district violated his procedural and substantive due process rights. The district removed Strickland’s action to federal district court and the district court granted summary judgment in favor of the district. Strickland appealed.
On appeal, the court affirmed the district court’s decision. Strickland argued that he enjoyed a property right in his continued employment with the board and that, in terminating him without an in-person hearing, the board deprived him of his property without due process of law. The court concluded that the board provided Strickland with an adequate pre-termination process. After the incident was initially investigated, the transportation director met with Strickland twice to discuss the evidence the investigation revealed. Following the meetings, Strickland was notified by letter of the director’s decision to recommend termination. Strickland then received another hearing, where he was permitted to tell his side of the story, supported by any evidence he could provide. Strickland also had an unrestricted opportunity to submit materials for the board’s consideration. Thus, even though he was not physically present while the board entertained his appeal, he had an opportunity to respond to the allegations against him and was not denied his right to procedural due process.
Seventh Circuit affirms summary judgment for school district without “actual knowledge” of sexual misconduct by one of its teachers.
N.R. Doe v. St. Francis Sch. Dist., 694 F.3d 869 (7th Cir.2012).
http://caselaw.findlaw.com/us-7th-circuit/1611863.html
A 14-year-old eighth grade male student filed suit against a Wisconsin public school district due to allegations of sexual abuse by a 26-year-old female teacher. The school district concedes misconduct by the teacher. After an exchange of text messages in which she told the boy that she wanted him to be her boyfriend, she invited him to her apartment. He accepted the invitation and when he arrived they spent 15-20 minutes “kissing and petting.” Sexually suggestive text messages followed, though no further physical contact. The boy’s parents discovered one of the text messages. The teacher was fired, prosecuted and pleaded guilty to fourth-degree sexual assault.
The teacher was disliked by other teachers in the district. Several complained to the school’s principal about the fact that she was texting throughout the school day and about her “crush” on the student. The district’s superintendent interviewed the teacher and felt that her denials of impropriety were sincere. The district court granted summary judgment in favor of the school district. The parents appealed.
The court of appeals affirmed. The parents alleged that the teachers’ complaints of an inappropriate romantic relationship between the teacher and the student were enough to put the school district “on notice” of misconduct suggesting sexual harassment. However, the court acknowledged that this knowledge fell short of the “actual knowledge of misconduct” standard required by Title IX. The court also stated that “judges must be sensitive to the effects on education of heavy-handed judicial intrusion into school disciplinary issues, or heavy-handed administrative intrusion required by judges interpreting Title IX and other statutes that…have made education one of the most heavily regulated American industries.”
In light of its holding, the court of appeals affirmed the district court’s decision to grant summary judgment in favor of the school district.