School Law Summary 2013-3
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In this issue: Arbitration • Arbitration — Appeal • Criminal — Miranda Rights • Equal Protection • First Amendment • Fourth Amendment • Individuals with Disabilities • Public Records • Qualified Immunity • Rehabilitation Act of 1973 • Retirement — Benefits • Tort Liability
In the matter of arbitration between Massillon City School Dist. and Massillon Edn. Assn., Case No. 53 390 00052 10, Arbitrator Michael Paolucci, (July 6, 2010).
Issue: Whether the district violated any provision of the collective bargaining agreement in the manner in which it responded to the theft of an employee’s wedding ring by a student.
Award: For the board. The arbitrator found that the board’s lack of response following the report of the incident was appropriate and that no “assault” occurred when the student returned the ring to the employee and made statements in front of the class that embarrassed the employee. The arbitrator found that nothing submitted by the grievant could come close to falling within the meaning of physical or verbal “assault” as defined in the collective bargaining agreement.
In the matter of arbitration between Massillon City School Dist. and Massillon Edn. Assn., Case No. 53 390 00399 09, Arbitrator Robert Vana (March 31, 2010).
Issue: Whether the district violated the collective bargaining agreement when it terminated an employee’s insurance plans pursuant to a reduction in force.
Award: For the grievants. The arbitrator found that although the reduction notices were sent to the employees in April, the letters could not be effective, under the terms of the collective bargaining agreement, until August. As a result, the grievants were on active employment until August and should have retained the right to participate in the district’s health plans. The discontinuation of the insurance plans in June was a violation of the collective bargaining agreement. However, the arbitrator found that since the time had passed for such insurance plan coverage to be effective, there was no practical remedy available.
In the matter of arbitration between Massillon City School Dist. and Massillon Edn. Assn., Case No. 53 390 000270 12, Arbitrator Jeffrey Belkin ( February 21, 2013).
Issue: Whether the district violated the collective bargaining agreement when it eliminated positions through its reduction in force plan.
Award: For the district. The arbitrator found that the union was unable to establish that the district’s reduction in force plan was unreasonable. The arbitrator determined that the district’s discretion to make reasonable staff reductions was conferred by RC 3319.17 and the collective bargaining agreement. The fact that the district’s financial deficit actually was less than projected did not create an abuse of discretion when the reduction in force plan was implemented.
Ohio court denies district’s motion to refer its case to arbitration.
Academic Support Servs., L.L.C. v. Cleveland Metro., Sch. Dist. 2013-Ohio-1458.
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2013/2013-Ohio-1458.pdf
Academic Support Services (Academic) filed a complaint against Cleveland Metropolitan School District (CMSD) alleging that CMSD breached a contract provision regarding supplemental tutoring services to CMSD students. CMSD filed a motion for summary judgment, claiming no genuine issue of material fact existed. It also argued, in the alternative, that the case should proceed to arbitration pursuant to a contract provision, which provided that “if the district denies the claim in whole or in part, then the claim shall be submitted to nonbinding arbitration.” The trial court denied CMSD’s motion for summary judgment and a trial date was set.
CMSD filed a motion to stay proceedings and refer the matter to arbitration. The motion also was denied, and CMSD appealed. On appeal, CMSD argued that the trial court erred in denying the motion to stay proceedings and refer the matter to arbitration. The court of appeals held, however, that CMSD had waived its right to arbitrate and thus their motion was properly denied.
To determine whether a waiver occurred, the court noted “the essential question is whether, based upon the totality of the circumstances, the party seeking arbitration has acted inconsistently with the right to arbitrate.” The court considered four factors in its determination: 1) whether the party seeking arbitration invoked the jurisdiction of the trial court by filing a complaint, counterclaim or third-party complaint without asking for a stay of proceedings; 2) the delay, if any, by the party seeking arbitration in requesting a stay of proceedings or an order compelling arbitration; 3) the extent to which the party seeking arbitration participated in the litigation, including the status of discovery, dispositive motions and the trial date; and 4) any prejudice to the nonmoving party due to the moving party’s prior inconsistent actions.
Based on these factors, the totality of the circumstances indicated that CMSD had waived its right to arbitrate. Specifically, the court found that CMSD did not petition the court in a timely manner to refer the case to arbitration. The court also found that CMSD had fully participated in the litigation by filing a dispositive motion, exchanging discovery, and preparing a trial brief, witness list and exhibit list. Furthermore, the court noted that CMSD waited until one month before trial to file the motion to refer the case to arbitration.
With all of these facts suggesting CMSD had waived its right to arbitrate, the trial court’s denial of the motion was affirmed.
Supreme Court of Kentucky rules that student’s incriminating statements must be suppressed because he was not given Miranda warnings.
N.C. v. Commonwealth, 396 S.W.3d 852 (April 25, 2013).
http://opinions.kycourts.net/sc/2011-SC-000271-DG.pdf
A high school student brought hydrocodone to school and sold two pills to another student. The empty prescription pill bottle was found in the boys’ restroom by a teacher and turned in to the school principal. The school principal called the student whose name appeared on the bottle into his office, where he and the school resource officer (SRO) questioned the student about his involvement with the pills. After persistent questioning, the student admitted he brought the pill bottle to school and sold some of its contents to another student. The student was not given Miranda warnings at any time during the questioning.
The student subsequently was charged with possessing and dispensing a controlled substance. The student filed a motion to suppress evidence, claiming that the incriminating statements were given in violation of his Miranda rights and thus should not be admissible at trial. The motion was denied, and the student appealed. On appeal, the decision to deny the motion to suppress was affirmed. The student then filed for discretionary review by the Supreme Court of Kentucky, which was granted.
The Supreme Court of Kentucky held that the student should have been given his Miranda rights when he was called into the principal’s office. It stated Miranda warnings are required when a person is being questioned by law enforcement and the person is being held in custody. In this case, the court found the student was being questioned by law enforcement because the SRO participated in all aspects of the questioning of the student and helped elicit the incriminating statements. It further found that the student was in custody when questioned because the circumstances of the interrogation indicated a reasonable person in the student’s position would not feel that he could terminate the interrogation and leave. Since the student was being questioned by law enforcement and was being held in custody, the court held the he should have been given Miranda warnings.
Thus, the court concluded that any incriminating statements given by the student during the questioning should have been suppressed.
Sixth Circuit rules that Michigan public schools are not required to collect membership dues for unions that represent public school employees.
Bailey v. Callaghan, 6th Cir. No. 12-1803 (May 9, 2013).
http://www.ca6.uscourts.gov/opinions.pdf/13a0129p-06.pdf
Michigan enacted Public Act 53 in 2012, which prohibited public school employers from collecting dues or service fees from wages of public school employees on a labor organization’s behalf. Numerous unions and union members brought suit claiming this law violated their First Amendment rights, as well as the Equal Protection Clause of the U.S. Constitution. The district court ruled in favor of the plaintiffs and entered a preliminary injunction barring enforcement of the Act. The state appealed.
On appeal, the plaintiffs argued that unions engage in speech and their ability to engage in speech depends upon their ability to collect union dues. The plaintiffs further argued that since unions will have difficulty collecting the union dues without the help of public schools, Public Act 53 violated their right to free speech under the First Amendment. The Sixth Circuit Court of Appeals rejected this argument and held that the Michigan law does not infringe upon their First Amendment rights because payroll deductions do not constitute speech. The restriction on payroll deductions does not interfere with the unions’ ability to speak.
The plaintiffs also argued that the law violates the Equal Protection Clause because the law targets public schools. Since it prohibited public schools from collecting union dues, but did not bar other state or local employers from collecting union dues, the classification violated the 14th Amendment. The Sixth Circuit rejected this argument, holding that it is a legitimate government interest in the classification. Public schools, unlike other state or local employers, have a legitimate interest in preserving their resources to be used for other purposes beyond collecting union dues. Thus, the law did not violate the Equal Protection Clause.
Based on these findings, the Sixth Circuit reversed the district court’s decision to issue a preliminary injunction and remanded the case for further proceedings.
District of Columbia district court denies preliminary injunction seeking to enjoin public schools from closing 15 underutilized schools.
Smith v. Henderson, Dist. Ct. D.C. No. 13-420 (JEB) (May 15, 2013).
http://www.gpo.gov/fdsys/pkg/USCOURTS-dcd-1_13-cv-00420/pdf/USCOURTS-dcd-1_13-cv-00420-0.pdf
The District of Columbia Public Schools created a “Consolidation and Reorganization Plan” in response to decreased enrollment in several public schools in the D.C. area. The plan was designed to close approximately 15 underutilized schools and reallocate the funds from those schools to others in the district. The plaintiffs, two Advisory Neighborhood Commission members and three guardians of children who attended schools slated for closure, claimed the program was discriminatory in nature because the schools to be closed consisted primarily of poor, minority, and disabled students. The plaintiffs sought a preliminary injunction to bar enforcement of the plan, but were denied.
The plaintiffs brought several civil rights claims, most notably a claim under the Equal Protection Clause. The district court stated that to prevail under an equal protection claim, the plaintiffs must demonstrate evidence of intentional discrimination on behalf of the defendants. The plaintiffs argued that the relocation of disadvantaged students would have a negative impact on their education. They also argued that the plan would not likely save significant money in the budget, as proposed by the district.
The district court held that the plaintiffs arguments were invalid as they merely demonstrated a “disparate impact” on the students and was not evidence of intentional discrimination. Thus, the Equal Protection Clause argument failed.
The plaintiffs also sought relief under the Individuals with Disabilities Education Act, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, claiming the district’s plan violated various provisions of these acts. The district court found these claims to be invalid because they were unlikely to succeed on the merits. Thus, the plaintiffs motion for a preliminary injunction was denied.
Fourth Circuit finds no First Amendment or 14th Amendment violations in preventing student from wearing shirts depicting the Confederate flag or a shirt mentioning history of slavery.
Hardwick v. Heyward, 4th Cir. No. 12-1445 (March 25, 2013).
http://www.ca4.uscourts.gov/opinions/Published/121445.p.pdf
A student, over a period of three years, wore eight different Confederate flag shirts to school. Each shirt depicted a confederate flag in full view. On each occasion, school officials prohibited the student from wearing the shirts. In response, the student also wore five “protest” shirts, which school officials also prohibited. Four of the protest shirts used lettering that revealed a Confederate flag through red, white and blue coloring, in a diagonal cross. The fifth “protest” shirt displayed the American flag with “Old Glory” above the flag and “Flew over legalized slavery for 90 years!” underneath it. During the period of three years, both the student and her parents made multiple attempts to persuade the district to allow her to wear the confederate flag shirts as a means to express her heritage and religion.
After her final attempt in the spring of 2006 to persuade the district, the student filed a complaint pursuant to 42 USC § 1983 against her middle school and high school principals, as well as the district’s board of trustees. The complaint alleged violations of the student’s First Amendment right to free speech and expression and her 14th Amendment right to due process and equal protection. The district court granted summary judgment in favor of the defendants, and the student appealed.
The U.S. Court of Appeals for the Fourth Circuit affirmed the judgment of the district court. The court of appeals decided the First Amendment claim and found that the district’s history of racial conflict over the past 30 years provided sufficient grounds for reasonably forecasting the Confederate flag shirts would “materially and substantially interfer[e] with the requirements of appropriate discipline in the operation of the school.” The court also allowed the use of events occurring after the prohibitory action as additional grounds for justification.
In its determination, the court of appeals grouped the “protest” shirts with lettering revealing the Confederate flag with the shirts depicting the full flag. Also, the court found that the shirt depicting the American flag and mentioning a history of slavery in the U.S. was “undoubtedly likely” to cause a disruption because it “explicitly broadcast the fact that African-Americans were slaves for part of American history” in a similar manner that the Confederate flag did. Additionally, the court found that there were no 14th Amendment concerns because the dress codes were viewpoint neutral and did not suffer from being too vague or too overbroad to violate due process.
Third Circuit affirms district court’s ruling that student’s Christmas party invitation does not materially or substantially interfere with the discipline operation of the school or the rights of others.
K.A. v. Pocono Mountain Sch. Dist., 3rd Cir. No. 12-1728, 710 F.3d 99, (March 12, 2013).
www2.ca3.uscourts.gov/opinarch/121728p.pdf
An elementary school student brought invitations to school to invite her classmates to a Christmas party at her church. The student was prohibited from distributing the invitations because the school claimed the invitations violated the district’s policy. The policy provided in part that the flyers must “promote student interests primarily, rather than the special interests of any particular group” and that “invitations to individual student-hosted social events” may be distributed “upon approval of the superintendent or designee.” The superintendent cited these provisions of the district’s policy as reasons why the student could not distribute the invitations to her classmates.
The student’s father filed a lawsuit in the U.S. District Court for the Middle District of Pennsylvania, claiming that the prohibition violated his child’s First Amendment rights. A motion for a preliminary injunction was subsequently filed asking the district court to bar the district from prohibiting his child from distributing religious flyers and materials in school. The preliminary injunction was granted. The district appealed.
On appeal, the court upheld the preliminary injunction. The court stated that a student “may express his opinions, even on controversial subjects … if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others.” The material risk of substantial disruption test is subject to a few narrow exceptions. If the expression involves “lewd, vulgar or profane” language, is “school-sponsored” (i.e. speech a reasonable observer would view as the school’s own speech), or “promotes illegal drug use,” the school may regulate the speech. Otherwise, the school may regulate the speech only if it substantially interferes with the discipline operation of the school or the rights of others.
Applying the above standards, the court held the student’s invitations did not fall within any of the exceptions. The court further stated the invitations did not pose any material risk of substantial disruption to the school or the rights of others.
Tenth Circuit finds that students’ First Amendment rights were not violated by school preventing them from handing out fetus dolls.
Taylor v. Roswell Indep. Sch. Dist., 10th Cir. No. 11-2242 (Apr. 8, 2013).
http://www.gpo.gov/fdsys/pkg/USCOURTS-ca10-11-02242/pdf/USCOURTS-ca10-11-02242-0.pdf
Five students of two different high schools belonged to a religious youth group called Relentless, which was affiliated with a local church. The students routinely engaged in religious expression at school. They would often bring items to school to distribute to other students and faculty members. The items included sandwiches, hot chocolate, candy canes with religious messages and “affirmation rocks” with scriptural references painted on one side. When the distributions began, the school had two policies concerning distribution of non-school related materials on campus. One policy required advance permission from the district before distributing any promotional items or advertisements on campus. The second was an unwritten policy (later formalized into a written policy) requiring students to obtain permission before on-campus distribution of non-school-sponsored literature. The students never received permission to distribute the previously listed items. They were not disciplined, reprimanded or asked to stop distributing the items. There was no evidence the distributions caused disruption.
On January 29, 2010, some of the students belonging to the youth group, with the help of the pastor that led the group, began to distribute 2,500 two-inch dolls designed to resemble a fetus that was twelve weeks into gestation. The group gave each student entering the school a doll and a card. One side of the card encouraged students to visit or call a pregnancy resource center associated with the church/youth group. The other side featured the youth group’s logo and a scriptural passage. Once inside the school, some of the students ripped the heads off the dolls and began to play with them as if they were balls. Other students complained about misuse of the dolls to the vice principal. The assistant principal responded by stopping the distribution of the dolls and taking away the remaining dolls until the end of the day. The assistant principal contacted the principal of another school in the district to see if he was experiencing the same problem. The principal was out of town, but addressed the possibility of a problem through his campus security officer, who ultimately confiscated the dolls after observing several “educational disruptions.”
The doll-related disruptions that both schools experienced included students using the dolls as darts and sticking them to the ceiling; students plugging toilets with the dolls; students dismembering the dolls and shoving their heads over other objects; students lighting the dolls on fire; and students hanging the dolls outside their pants’ zippers. Additionally, teachers complained about the disruptions, some saying that the disruptions took eight to 10 minutes out of each class period.
Two weeks later, the youth group attempted to distribute the dolls again. Administrators at both schools immediately stopped the second distribution. In late February, the youth group’s legal counsel sent a written demand to the district that the group be permitted to conduct the fetus doll distribution. The superintendent, administrators of both schools and the senior pastor of the church sponsoring the youth group met to discuss the issue, but the meeting ended without resolution.
The students responded by filing a lawsuit against the district seeking declaratory and injunctive relief. Their complaint alleged that school officials violated their First and 14th Amendment rights by preventing them from distributing the dolls. It also challenged the district’s policies requiring preapproval before distributing any non-school-sponsored material on school grounds. A magistrate judge granted summary judgment in favor of the district on all claims. The students appealed.
The Tenth Circuit Court of Appeals affirmed the decision. The court broke down each count individually (note: a second count was abandoned on appeal). The first count included two First Amendment speech claims. First, the students challenged the district’s preapproval policies for non-school-sponsored material, alleging that the policies were unconstitutional prior restraints and unconstitutionally vague. The court held that the challenge to the school policy failed because the policy was constitutional under the prior restraint doctrine since it constrained official discretion. Second, they challenged the policies as applied to the youth group’s members, claiming that the district’s refusal to allow them to distribute the dolls violated their free speech rights. The court held that the district did not violate the students’ free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption.
The third count alleged that the district discriminated against the students in violation of the 14th Amendment’s Equal Protection Clause. The court found that the students’ free exercise and equal protection claims failed because the decision to stop the distribution was not based on religion, and the students failed to show they were treated differently from similarly situated students.
Sixth Circuit reverses district court’s granting of summary judgment on “expulsion” due process claim and Fourth Amendment wrongful cell phone search claim.
G.C. v. Owensboro Pub. Sch., 6th Cir., No. 11-6476 (March 28, 2013).
www.ca6.uscourts.gov/opinions.pdf/13a0078p-06.pdf
G.C. attended Owensboro High School in Kentucky as an out-of-district student beginning in 2005. After a series of disciplinary problems, the superintendent declared that he would revoke G.C.’s authorization to attend Owensboro High School if he had any more disciplinary problems. The district’s policy for out-of-district students included a provision stipulating that continued enrollment was subject to the recommendation of the school principal and the approval of the superintendent. During G.C.’s time at Owensboro High School, teachers and school officials learned that G.C. used drugs, had anger management issues, suffered from depression and had thoughts of suicide. On September 2, 2009, G.C. violated the school cell phone policy when he was seen texting in class. His teacher confiscated his phone and read four text messages. Subsequently, the superintendent revoked G.C.’s out-of-district privilege to attend the school. His parents were contacted and told they could appeal the decision if they desired.
G.C. responded by filing an action for declaratory and injunctive relief, as well as compensatory and punitive damages, in the U.S. District Court for the Western District of Kentucky. The student alleged violations of his First, Fourth and Fifth Amendment rights, as well as violations of the Kentucky Constitution. The complaint was later amended to also include a Rehabilitation Act claim. The district filed a motion for summary judgment on all claims. The court ruled in favor of the district on all federal claims, and the student appealed.
The court of appeals reversed the district court’s ruling on the due process claim Fourth Amendment claims. The court found the student did not receive a pre-expulsion hearing as required by state law and implied by Sixth Circuit rulings. The court found that revocation of the privilege to attend an out-of-district school was the functional equivalent to an expulsion. In regard to the Fourth Amendment claim, the court refused to adopt a broad standard for allowing phone searches.
The court stated that it would narrowly implement a two-part test for school searches requiring that a search be (1) justified at its inception and (2) conducted reasonably in relation to the scope of the circumstances justifying the interference. This meant that “using a cell phone on school grounds did not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone.” In applying the test to the facts before the court, the court found that general background knowledge of drug abuse or depressive tendencies, without more, does not enable a school official to search a student’s cell phone when a search would otherwise be unwarranted. Furthermore, the court stated that it was not necessary for injury or compensable damages to be shown, because G.C. still could be awarded nominal damages. As a result, the court of appeals remanded the case for further proceedings.
Nebraska Supreme Court rules that principal’s search of student’s truck violated the Fourth Amendment because the principal lacked probable cause.
J.P. v. Millard Pub. Sch., 830 N.W.2d 453, (May 17, 2013).
http://www.supremecourt.ne.gov/sites/supremecourt.ne.gov/files/sc/opinions/s11-777.pdf
A student of Millard West High School left school property during school hours to retrieve a wallet and sweatshirt from his truck, located across from school property. Upon his return to the school, a parking lot security person notified the principal of the student’s departure and subsequent re-entrance into the building. The student maintained that he had permission to leave the building, but no evidence was found suggesting he had permission to leave and walk to his truck.
The principal decided to search the student’s backpack, which contained a cell phone, keys and a wallet. No evidence of contraband was found. However, the principal escorted the student across the street where he proceeded to search the student’s vehicle. The student explicitly objected to the search, but the principal ignored the student’s wishes and continued. During the course of the search, the principal found drug paraphernalia. The student subsequently was suspended for 19 days.
The student’s father objected to the search and requested a hearing. The hearing officer found that the student was guilty of the offense and upheld the 19-day suspension. A suit was later filed in the district court, naming Millard Public Schools, the board and other school officials as defendants. The court determined that the principal lacked probable cause to search the student’s truck, and thus found a Fourth Amendment violation had occurred. The defendants appealed. The Nebraska Supreme Court affirmed and ordered the offense be removed from the student’s permanent record.
Under the Fourth Amendment, a warrantless search or seizure is presumed unreasonable unless law enforcement can demonstrate probable cause to conduct the search. Probable cause is found when “the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found.” The Nebraska Supreme Court cited a two-part test for determining the reasonableness of school searches. The first step requires the search “be justified at its inception,” which is satisfied “when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” The second step requires the search “be reasonably related in its scope to the circumstances which justified the interference in the first place.”
The court determined the subsequent search of the student’s truck was unreasonable and thus a violation of the Fourth Amendment. The court found that since the truck was located off school grounds, the principal had no authority to extend the search beyond the initial backpack search. Furthermore, the court held that the principal lacked probable cause to continue the search because no evidence of contraband was found in the initial search. A lack of contraband in the initial search gave no reason for the principal to believe the student had contraband in his truck. As a result, the Nebraska Supreme Court found the search of the student’s truck unreasonable.
Third Circuit rules that mother of student with autism has no IDEA claim due to a failure to exhaust administrative remedies and lack of standing.
J.T. v. Dumont Pub. Sch., 3rd Cir. No. 12-2241 (Apr. 26, 2013).
http://federal-circuits.vlex.com/vid/433676598
J.T., the mother of a child with autism, met with the director of special services to prepare an IEP for the child, who was entering kindergarten. The child study team concluded that the best option for the child was to place him in an inclusion program. They informed the mother that the general education curriculum taught to all students in the inclusion class would be the same as in a regular kindergarten class. The only kindergarten inclusion class in the two-square-mile school district was located at Grant School. The closest school to the family’s home was Selzer School. The child study team planned for the child to transition back to Selzer School for first grade after completing a year at Grant School in the inclusion class.
In response to the decision, the mother filed a due process petition with the New Jersey Department of Education objecting to the child’s placement in the inclusion class because it was not a general education class and was not located at the nearest school. After multiple communications with the director of special services, the mother requested the child be placed at the Selzer School instead. The director offered multiple times to place the child in a regular class at the Selzer School. However, the mother did not accept the offers, so the child was placed at Grant School.
The parent then filed a class action complaint under IDEA and § 504 of the Rehabilitation Act, after which she withdrew the due process petition. She later amended the class action complaint on behalf of all kindergartners who reside in the town of Dumont and require special education services, seeking declaratory and injunctive relief, including a proposed declaration that defendants “consider placing each kindergartner who requires special education services in regular classrooms in the school they would otherwise attend if not requiring special education services.” During this time, the child made significant progress in the kindergarten inclusion class at Grant School, enough so that he returned to Selzer School for first grade. Defendants moved for summary judgment, contending that plaintiffs did not have standing because they failed to allege a legally cognizable injury and, alternatively, failed to exhaust their IDEA administrative remedies. The district court granted summary judgment on both grounds. The parent appealed.
The Third Circuit Court of Appeals affirmed. To have standing under Article III, a plaintiff must show “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” The court noted, “A procedural violation is actionable under the IDEA only if it results in a loss of educational opportunity for the student, seriously deprives parents of their participation rights, or causes a deprivation of education benefits.” The court found that neither the parent nor the child had standing because neither suffered substantive harm. The court also noted that purely procedural violations are not actionable. In addition, the court went on to say even if the mother had standing, summary judgment would be proper because she failed to present any facts showing she or her child were harmed procedurally or substantively under IDEA.
Tenth Circuit finds that parents exhausted IDEA remedies, but failed to meet the standard for a 14th Amendment claim.
Muskrat v. Deer Creek Pub. Sch., 10th Cir. No. 11-6194 (April 23, 2013).
caselaw.findlaw.com/us-10th-circuit/1628771.html
J.M. is a child with a developmental disability. He also had impaired gross and fine motor skills, as well as balance problems and a pattern of seizures. He attended elementary school and was enrolled as a special-education student with an IEP. During the time of the lawsuit, J.M. was between 5 and 10 years old, but had the mental age of a 2 or 3 year old. While at school, he was placed in timeouts at least 30 times between the 2004-2005 and 2005-2006 school years. These timeouts consisted of being placed in a small room alone for a period of four minutes or less. His parents felt that the timeouts were affecting his health and complained until his IEP was changed to prohibit placing him in the timeout room, but instances of school personnel placing J.M. in timeouts still occurred after the change. Also during his time at the elementary school, J.M. allegedly suffered three instances of physical abuse at the hands of school staff, two consisting of slaps and one consisting of restraint.
His parents filed a complaint against Deer Creek Public Schools, the principal, a special-education teacher and a full-time aide. The complaint alleged state law torts, as well as a 42 USC §1983 claim, accusing the defendants of violating J.M.’s constitutional rights. The parents’ claims focused on continuing emotional trauma and related medical expenses resulting from the timeouts. The district moved to dismiss, arguing that the district court lacked subject matter jurisdiction because the plaintiffs had failed to exhaust their claims through an administrative process established under IDEA. The district also asserted that the state law torts failed to state a claim on which relief could be granted.
The district court rejected the district’s IDEA exhaustion argument, but agreed that the state law torts were deficient. The court allowed the parents to amend their complaint. The district moved for summary judgment, arguing that its actions stated no constitutional violation under a 14th Amendment “shocks the conscience” analysis. The district court agreed, entered judgment against the parents on their §1983 claim and declined to retain jurisdiction over other remaining state-law action. The parents argued that the district court had improperly dismissed the whole case because they could still proceed under a Fourth Amendment “reasonableness” theory as an alternative to the 14th Amendment theory. The district court denied this motion, because it was not raised in the original complaint. The parents appealed, contending that the district court erred in granting summary judgment in favor of the defendants.
The court of appeals, like the district court, found that the district court did have subject matter jurisdiction because administrative remedies were exhausted. The court noted that the physical torts could in no way be addressed by IDEA hearings, due to their having no relation to disputes over the child’s education. The court of appeals then agreed with the district court’s finding that the 14th Amendment claim did not meet the controlling legal standard of “shocking the conscious.” In addition, the court stated that there was neither supervisory liability nor school district liability because no specifics on the claims were ever raised. On the issues of substituting the Fourth Amendment claim, the court agreed with the district court and went on to declare that the circuit does not have settled law on whether the Fourth Amendment applies to school discipline cases. As a result, the Tenth Circuit Court of Appeals affirmed the district court’s grant of summary judgment.
Fourth Circuit holds that it has jurisdiction to consider South Carolina’s petition for review.
S.C. Dept. of Edn. v. Duncan, 4th Cir. No. 12-1764, 714 F.3d 249, (April 26, 2013).
http://www.ca4.uscourts.gov/opinions/Published/121764.p.pdf
South Carolina reduced funding for special education by $67.4 million due to a significant decline in state tax revenues. Under the Individuals with Disabilities Education Act (IDEA), “a state must not reduce the amount of its own financial support for special education ‘below the amount of that support it provided for the preceding fiscal year.’” If a state does not comply with this condition, known as the “maintenance-of-effort” condition, the amount of federal funding allocated to the state must be reduced or a waiver must be granted to comply with the federal statute. A waiver may be granted if doing so “would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in financial resources of the state.”
The state requested a waiver of its maintenance-of-effort condition for fiscal year 2010 due to the decline in state tax revenues, but was denied. The state argued that it was entitled to a hearing before the Secretary of the U.S. Department of Education made his final determination whether to grant the waiver of the maintenance-of-effort condition. A request for the hearing was filed, but also was denied. The South Carolina Department of Education then filed a petition for review of the denial of South Carolina’s request for a waiver and a hearing.
On appeal, the court of appeals held that it did have jurisdiction to consider the state’s petition for review. The court noted that IDEA provides that any state “dissatisfied with the secretary’s action with respect to eligibility … may … file with the United States court of appeals for the circuit in which such state is located a petition for review of that action.” Citing IDEA, the court stated the maintenance-of-effort waiver determination was “an action with respect to eligibility” and thus could be heard.
Furthermore, the court held that South Carolina was entitled to a hearing. The court stated that when the U.S. Department of Education decided the state was not entitled to a full waiver of the maintenance-of-effort condition, that decision constituted a determination of eligibility for funds. Since the decision involved an eligibility determination, the state was entitled to a hearing before a final decision on the waiver request was made. As a result, the court ruled in favor of the South Carolina Department of Education.
U.S. Supreme Court holds that Virginia’s freedom of information laws are constitutional, even though they limit access to public records to Virginia citizens.
McBurney v. Young, 133 S.Ct. 1709 (2013).
http://www.law.cornell.edu/supremecourt/text/12-17
Virginia’s Freedom of Information Act (FOIA) grants Virginia citizens access to all public records, but grants no such right to non-Virginians. Petitioners McBurney and Hurlbert, citizens of states other than Virginia, filed public records requests under the Act. McBurney sought documents from the Virginia Division of Child Support Enforcement regarding his application for child support, and Hurlbert requested real estate tax records from the Henrico County Real Estate Assessor’s Office. The requests of both McBurney and Hurlbert were denied because of their citizenship.
After the requests were denied, they filed a lawsuit seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause of the U.S. Constitution, and in Hulbert’s case, the dormant Commerce Clause. The district court granted Virginia’s motion for summary judgment, and the Fourth Circuit affirmed.
On appeal, the U.S. Supreme Court held that no constitutional rights were violated. Under the Privileges and Immunities Clause, the “citizens of each state are entitled to all privileges and immunities of citizens in the several states.” Although the court acknowledged that the clause is typically used to ensure that the citizens of each state are placed on the same footing as citizens of other states, it recognized that it only protects those privileges and immunities that are fundamental. The requestors alleged that Virginia’s FOIA provision violated four different fundamental privileges or immunities: the opportunity to pursue a common calling; the ability to own and transfer property; access to the Virginia courts; and access to public information.
The court rejected these claims, however, finding that Virginia’s FOIA did not unconstitutionally hinder the requestors’ rights to pursue a common calling or to “take, hold and dispose of property,” or access real estate tax assessment records or public proceedings. Also, the court ruled that the Privileges and Immunities Clause is not so broad as to cover the right of out-of-state citizens to have access to public information on equal terms as in-state citizens. In regard to the dormant Commerce Clause Claim, the court held that Virginia made no violation because FOIA does not regulate commerce. In sum, the court affirmed the decision of the court of appeals rejecting petitioners’ constitutional claims.
Supreme Court of Ohio determines that Ohio attorney general did not need to disclose documents due to attorney-client privilege.
State ex rel Lanham v. Dewine, 2013-Ohio-199.
http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-ohio-199.pdf
Kent Lanham, a resident of Clermont County, requested copies of records concerning any report, complaint, claim or other communication from the Ohio attorney general’s office relating to State Representative Danny Bubp simultaneously holding the public offices of state representative and magistrate in a major’s court. In response, the attorney general’s office mailed a CD containing 172 pages of responsive documents. Several documents were withheld and parts of other documents were redacted based on the claim that they were covered by attorney-client privilege.
Lanham’s attorney requested clarification and confirmation of the attorney-client privilege claim in the form of a list identifying the attorneys and clients involved in each redaction, as well as how communications between the director of media relations for the former attorney general and the assistant attorney who was general chief of the opinions section for the office were covered by the privilege. The attorney general’s office replied, stating Lanham’s questions concerning its reliance on the attorney-client privilege were beyond the scope of the public-records inquiry.
Lanham filed an action for a writ of mandamus to compel the attorney general’s office to provide access to those portions of the requested public records that were withheld, including the records for which it claimed attorney-client privilege. The action also requested an award of statutory damages, attorney fees and costs. The attorney general’s office filed a motion to dismiss, and the citizen filed a motion to strike the exhibits attached to the motion to dismiss. The court granted the motion to strike and denied the motion to dismiss. Lanham refined his document request by identifying six redacted documents that remained at issue, as well as two additional documents that were never included on the CD he received, but were on a log of the items withheld under the attorney-client privilege exception.
The Supreme Court of Ohio determined the first affidavit in question was valid because the assistant attorney general in question had the requisite “personal knowledge.” The court found the second group of affidavits to be valid even though the affidavits mentioned mediation because the affidavits did not disclose any details of the mediation itself, but mentioned only those documents that were still at issue after the mediation was complete.
In addition, the court denied the writ of mandamus to compel the attorney general’s office to provide unredacted copies of the requested records. The court found that the attorney general’s office correctly excepted the documents from disclosure by establishing an attorney-client privilege exception. The court also noted that the attorney general’s office had no duty under RC 149.43 to submit a privilege log to preserve their claimed exception. In terms of each set of requested documents, the court found that the six emails were covered by the attorney-client privilege because they were communications between an attorney and a client seeking legal advice; they contained legal analysis and conclusions; and they were never shared with anyone outside the attorney general’s office. Additionally, the court found that the other two documents qualified as falling under the same privilege even though they were not between an attorney and a client. This was because the attorney obtained the documents while investigating a matter in which he was advising a client, and the court determined that the documents contained material pertinent to such an investigation. Due to the failure of all of the Lanham’s claims, the Supreme Court of Ohio also denied the request for statutory damages and attorney fees.
Sixth Circuit determines that school nurse was entitled to qualified immunity after performing a medical inspection of a student’s genital area.
Hearring v. Sliwowski, 6th Cir. No. 12-5194 (March 27, 2013).
http://www.ca6.uscourts.gov/opinions.pdf/13a0077p-06.pdf
B.H., a 6-year-old female student, complained of irritation in her genital area and that it “burned” when she urinated. The complaint was reported to the school’s secretary, who upon hearing of the problem informed B.H.’s mother. B.H.’s mother informed the school that her daughter had a history of chronic bladder infections. Two days later, B.H. again reported irritation in her genital area. The school nurse was notified and took B.H. into a private bathroom used by teachers and conducted a “visual check” of the area. The nurse at no time touched B.H., but her parents did not give consent prior to the examination. The nurse testified that there was no suspicion of child abuse motivating the examination.
B.H.’s mother filed a complaint alleging that the visual examination violated B.H.’s Fourth Amendment right to be free from unreasonable searches and sued the nurse in her individual capacity. Subsequently, the complaint was amended to add the Metropolitan Government of Nashville-Davidson County as a municipal defendant for the alleged unconstitutional search due to its failure to appropriately train its school nurses. The nurse argued that she was not liable on the basis of qualified immunity. The district court denied summary judgment with respect to both defendants, and the nurse appealed.
On appeal, the court ruled that qualified immunity did not apply to the nurse. A government official will be liable for the violation of a constitutional right only if the right was “clearly established … in light of the specific context of the case.” A right is clearly established if “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” The court noted that “ordinary common sense” puts school administrators on notice that a search of a student’s naked body ‘grossly offend[s]’ the student’s sense of decency, self-respect and bodily privacy.”
The court of appeals found that the nurse did not have fair warning that her medical assessments were subject to the Fourth Amendment’s reasonableness requirement. The court determined that the right was not clearly established. As a result, the court of appeals ruled that the nurse was entitled to qualified immunity regardless of whether her conduct amounted to a violation of B.H.’s Fourth Amendment rights.
Fifth Circuit rules that student has a claim for gross mismanagement of her IEP because the district failed to make reasonable accommodations for her disabilities.
Stewart v. Waco Indep. Sch. Dist., 5th Cir. No. 11-51067, 711 F.3d 513 (March 14, 2013).
www.ca5.uscourts.gov/opinions/pub/11/11-51067-CV0.wpd.pdf
A student suffered from mental retardation and speech and hearing impairments. She attended school as a special-education student. In November 2005, Stewart was involved in an incident in which inappropriate sexual contact between herself and another student occurred. Her school district subsequently revised her individualized education program (IEP), which specified that she remain under close supervision and be separated from male students. Although her IEP was modified, Stewart experienced three other instances of sexual misconduct following the initial incident. The district punished the special-education student in all three instances. At no time during any of these subsequent incidents did the district further modify her IEP.
Stewart ultimately filed suit against the district, claiming that the district grossly mismanaged her IEP under Section 504 of the Rehabilitation Act of 1973 because the district failed to make reasonable accommodations for her disabilities. The district court dismissed Stewart’s claim and she appealed. On appeal, Stewart argued she had two separate claims, one for the district’s deliberate indifference to disability-related, student-on-student sexual assault and the other for gross mismanagement of her IEP.
The Fifth Circuit Court of Appeals held Stewart did not have a claim for deliberate indifference, but did have a claim for gross mismanagement. The court stated that Stewart failed to plead sufficient facts to state a claim for deliberate indifference. To show deliberate indifference to disability-related, student-on-student sexual assault, the conduct must be “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” In this case, the court held Stewart’s complaint could not meet this high standard because the complaint did not address the harassers’ identities and relationship to Stewart, the punishments given out to the harassers, the nature of the abuse and several other factors which were considered in student-on-student harassment incidents.
As for gross mismanagement, the court held “a school district refuses reasonable accommodations under Section 504 when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment.” The court found the district had an ongoing responsibility to modify Stewart’s IEP once it was apparent that the behavior the IEP was intended to prevent kept occurring. Thus, the failure to modify Stewart’s IEP constituted gross mismanagement. As a result, the court of appeals reversed the district court’s ruling and remanded for further proceedings.
Ohio board not required to make contributions to STRS because virtual learning academy instructors are independent contractors.
State ex rel. Nese v. State Teachers Ret. Bd. of Ohio, 2013-Ohio-1777.
www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-ohio-1777.pdf
The Jefferson County Educational Service Center (ESC) hired instructors to teach a virtual learning academy (VLA) program that the ESC promoted throughout Ohio. It treated these individuals as employees and subsequently deducted contributions to be paid to the retirement system.
However, the State Teachers Retirement System (STRS) board later determined the instructors were independent contractors and refunded all contributions. Three VLA instructors filed suit to overturn STRS’s decision and sought writs of mandamus to compel the ESC to make the necessary contributions to the retirement system on their behalf. In December 2011, the Tenth District Court of Appeals denied the writ. The instructors appealed.
On appeal, the Supreme Court of Ohio held that STRS did not abuse its discretion in determining that the VLA instructors were independent contractors and not employees. It found the decision was not “unreasonable, arbitrary or unconscionable” because the Jefferson County ESC did not possess “the right to control the manner or means of performing the work.”
The court considered a number of factors, including who controls the details and quality of the work; who controlled the hours worked; who selected the materials, tools and personnel used; and the method of payment, among others. Using these factors, the court found the following: 1) the VLA instructors did not have an employment contract with the Jefferson County ESC; 2) the instructors did not receive fringe benefits (including health insurance) from the ESC; 3) the instructors created their own work schedules and the materials used to provide instruction to their students (including their own examination materials); 4) the instructors taught the students in the students’ own homes and without the use of Jefferson County ESC’s facilities; and 5) the instructors were given 1099 forms as opposed to W-2 forms for tax purposes.
Based on these findings, the Supreme Court of Ohio affirmed the court of appeals’ ruling and held that the individuals were independent contractors. Since they were independent contractors, the court ruled that the Jefferson County ESC was not required to make contributions to the retirement system on the VLA instructors’ behalf.
Ohio court of appeals holds that claim for employer intentional tort is unfounded for lack of specific intent.
Cain v. Field Local Sch. Dist. Bd. of Edn., 2013-Ohio-1492.
www.supremecourt.ohio.gov/rod/docs/pdf/11/2013/2013-ohio-1492.pdf
Paulette Cain was hired as a nonteaching assistant by the Field Local School District, assigned to work with learning disabled children. She subsequently was transferred to another position where she worked in the a multiple handicaps/disabilities class. While working in the class, Cain was assaulted by two students and suffered severe injuries. She and her husband subsequently filed suit against the board of education, superintendent and principal of the school for her injuries. The trial court granted summary judgment in favor of the defendants. Cain and her spouse appealed.
In her complaint, Cain alleged that her employer transferred her to the new position as a result of her filing a union grievance against another coworker who was later dismissed. Cain also maintained that she did not receive any training before or after she was assigned to the position to work with children who were known to exhibit violent and aggressive behavior. Due to her filing the grievance and the lack of training, Cain argued that the defendants were responsible for her injuries.
The defendants argued that the grievance filing had no relationship to her transfer. They claimed the decision to transfer came about before she filed the grievance. Furthermore, the principal stated that the reason for Cain’s transfer was a result of an overall reduction in the school’s workforce. Thus, the defendants maintained they did not possess “any intent to injure Cain, or any substantial certainty that she would be injured, due to the reassignment.”
In the end, the court of appeals affirmed the lower court’s ruling and found that the defendants possessed no specific intent to injure Cain. She argued that the intent to injure must be assessed using an objective standard, i.e. what a reasonable, prudent employer would believe under the circumstances. The court disagreed, stating “a plaintiff must always prove ‘specific’ or ‘deliberate’ intent by the employer to cause injury.” It further held that when an employer puts an employee in a dangerous situation without training, more is needed to prevail on an employer-intentional tort claim. The requisite “specific intent” is not present in those circumstances. As a result, the lower court’s ruling in favor of the defendants was affirmed.