School Law Summary 2014-1
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In this issue: Community Schools • First Amendment — Free Speech • Fourteenth Amendment • Individuals with Disabilities Act • Liability • Rehabilitation Act • Strikes • Student Discipline • Substitute Teaching • Tax — Valuation • Teacher — Termination • Title IX • Violence • Vouchers
Ohio court of appeals rules management company owns community schools’ property, since public money loses that character once paid to private company.
Hope Academy Broadway Campus v. White Hat Mgt., L.L.C., 2013-Ohio-5036.
http://www.sconet.state.oh.us/rod/docs/pdf/10/2013/2013-ohio-5036.pdf
The governing boards of ten community schools entered into similar management agreements with separate education management organizations, all owned by White Hat Management. The management agreements provided for payments from the schools to White Hat, including a fixed percentage of the per-student state funding they received, called a “continuing fee.” White Hat was responsible for the day-to-day operation of the schools, including the purchasing of furniture, computers, books, and all other equipment. White Hat also was responsible for providing a building and staff for the schools.
In February 2012, the schools filed a motion for partial summary judgment, claiming they were entitled to all property White Hat purchased using public funds without payment to White Hat. In May 2012, the trial court found that, pursuant to the management agreements, the schools were entitled only to the personal property purchased by White Hat using funding sources that required the purchase to be in the schools’ names. The trial court also found that White Hat had no fiduciary duty to give property to the schools without compensation. The schools appealed.
On appeal, the court rejected the schools’ argument that White Hat acted as the schools’ purchasing agent with respect to all property purchased with the continuing fee because the fee originated from a public source. The court held that once public funds are paid to a private entity, they lose their public character. In this case, the court held that although the monies White Hat used to pay for the property were once public funds, at the time of the purchases, they were in the possession and control of White Hat, a private entity. White Hat could decide how to spend the money, and the board no longer had any control over or possessory interest in the money.
The court then interpreted the management agreements based on the assumption that the funds White Hat used to pay for the property were private funds. The agreements required White Hat to purchase on behalf of the schools only that property that, by the nature of the funding source, must be titled in the schools’ names. Because White Hat’s private funds did not require the property purchased with them be titled in the schools’ names, the court found that White Hat owned the property purchased with White Hat’s private funds. Accordingly, the schools’ assignment of error was overruled and the judgment of the trial court was affirmed.
This case has been appealed to the Ohio Supreme Court.
Oregon federal court upholds discipline of student for off-campus speech deemed sexually harassing.
C.R. v. Eugene Sch. Dist. 4J, Or. No 6:12-cv-1042-TC (Sept. 12, 2013).
http://www.nsba.org/SchoolLaw/Issues/StudentRights/CR-v-Eugene-Sch-Dist.pdf
C.R. was one of several seventh grade male students that engaged in sexually harassing two disabled students using verbal statements while walking home after school. C.R.’s comments contained sexual connotations referring to oral sex. C.R. was suspended for two days following the misconduct. C.R. filed suit against the school district, alleging that the district violated his First Amendment free speech rights by disciplining him for speech that occurred after hours and off-campus.
While acknowledging that the location of the speech can be relevant, the court in this case cited case law precedent in Oregon that held that “off-campus speech is within the reach of school officials.” The court found that “for off-campus speech, the test still remains whether school officials may forecast substantial disruption of or material inference with school activities or whether speech collides with the rights of other students to be secure and to be let alone in the school environment.”
The court rejected C.R.’s First Amendment claims. The court held that the district reasonably believed that bullying and harassment could lead to more problems and substantial disruptions of school activities. The court found that the district “reasonably forecasted” that its failure to discipline harassing behavior could create a climate welcoming to such behavior in school. As a result, the court granted summary judgment to the district on C.R.’s First Amendment free speech claim.
Federal district court rules no actionable First Amendment retaliation claim after Ohio board member publicly censured, declines jurisdiction over state law open meetings claim.
Dillaplain v. Xenia Community Schools Bd. of Edn., S.D. Ohio No. 3:13-cv-104 (Oct. 21, 2013).
http://law.justia.com/cases/federal/district-courts/ohio/ohsdce/3:2013cv00104/162016/10
In spring 2010, Robert Dillaplain served as the board president of the Xenia Board of Education. During his time on the board, Dillaplain made a number of requests to school administrators for documents and information. These requests were met with resistance by school administrators. In January 2013, the new board president informed school administrators that they were not obligated to respond to requests by a single board member if they deemed the requests to be onerous. Thereafter, the superintendent directed the treasurer not to provide Dillaplain with the records he requested. Dillaplain subsequently obtained the same records by filing a public records request.
In February 2013, the board went into executive session to discuss a complaint by other board members against Dillaplain. Dillaplain requested, pursuant to board policy, that the complaint against him be discussed in public. The board did not take action on Dillaplain’s request for public discussion and instead waited until they moved into executive session to deny his request for an open meeting. The board then proceeded to discuss and consider the complaint against Dillaplain. During the executive session, the board discussed matters that had not been specified as one of the purposes for the executive session and specifically directed its general counsel to draft a resolution of censure against Dillaplain. The resolution for censure was voted on in open session at the March 2013 meeting.
Dillaplain filed an action against the board alleging a First Amendment retaliation claim, arguing that the public censure set forth in the board’s resolution was in retaliation for engaging in his First Amendment rights to free speech. The court found that the board’s speech in expressing its opinion and publicly censuring Dillaplain was not conduct rising to a level that would “deter a person of ordinary firmness from continuing to engage in protected speech, at least with regard to a public official engaged in the political process.” As a result, the court concluded that Dillaplain failed to state an actionable First Amendment claim.
Dillaplain also filed procedural due process claims against the board. Dillaplain argued that the resolution impaired his ability to participate in the political process, impaired his ability to represent his constituents and impaired his ability to earn a living as a physician. The court rejected these arguments, concluding that Dillaplain held no property right in his elected position or in the ability to carry out the functions of his position. There also was no property right with regard to his position as a physician, since he was not practicing as a physician at the time. As a result, the court dismissed Dillaplain’s due process claims.
With regard to the claims that the board violated the Ohio Open Meetings Act, the court declined to exercise supplemental jurisdiction over the state law claims, and dismissed the claims without prejudice.
Third Circuit determines that district did not have a constitutional duty to protect students from assaults and racial intimation by other student.
Morrow v. Balaski, 3rd Cir. No. 11-2000 (June 5, 2013).
http://www2.ca3.uscourts.gov/opinarch/112000p.pdf
Brittany and Emily Morrow were students at Blackhawk High School. In January 2008, they began experiencing physical assaults and threats by a fellow student. The fellow student was disciplined under the school’s “No Tolerance Policy” and criminally charged after physically attacking Brittany. However, the student continued to harass and attack the sisters. The sisters’ parents met with school officials and were told that the district could not guarantee the students’ safety. The parents enrolled the sisters in another school and filed suit against the district.
The parents alleged a violation of their daughters’ Fourteenth Amendment substantive due process rights. They also filed a supplemental state law claim against the assistant principal for negligence and/or gross and willful misconduct. The district court dismissed the complaint with prejudice and held that there was no special relationship between public school authorities and students. The parents appealed.
On appeal, the parents argued that the school officials violated Brittany and Emily’s liberty interests by failing to protect them from the threats and assaults inflicted by a fellow student. The court of appeals found that there was no assertion that the student acted under authority that was delegated by the school or that she “exercised coercive power with significant encouragement.” The student was disciplined and was not given the authority to harass or bully the sisters. As a result, the parents did not have a constitutional remedy under the special relationship theory.
Additionally, the parents argued that the district had a duty to protect the sisters because they created or exacerbated a dangerous situation. The court ruled that the school’s suspension of the student did not create a new danger for the sisters and did not cause them to be more vulnerable to danger than had the school not acted at all. Also, the school’s failure to expel the student did not create an affirmative act. Therefore, the district and assistant principal were not liable.
INDIVIDUALS WITH DISABILITIES ACT
Hawaii law barring students from attending public school after age 20 violates IDEA.
E.R.K. v. State of Hawaii Dept. of Edn., 728 F.3d 982 (9th Cir.2013).
http://caselaw.findlaw.com/us-9th-circuit/1642674.html
A Hawaii statute, dubbed “Act 163,” barred both general education students and students who received special-education services under the Individuals with Disabilities Education Act (IDEA) from attending public school after the last day of the school year in which they turned 20. Hawaii provided education for students over 20 to earn a high school equivalency diploma by enrolling in one of the state’s ten community schools for adults, but it did not provide special education services for students over 20.
Four disabled students filed a class action suit against the Hawaii Department of Education alleging that Act 163 violated federal law by denying public education to special needs students aged 20 to 21, while offering it, in the form of the community schools for adults, to students without special needs. The students also raised claims under the Americans with Disabilities Act (ADA) and the Rehabilitation Act (section 504) alleging that the department’s exclusion of disabled students from adult education constituted disability discrimination under those statutes.
The district court ruled for the department on all three claims. On the IDEA claim, it held that the Act was consistent with federal law because the community school for adults program did “not provide the equivalent of a secondary school education to general education students,” and because the department had no “systemic practice of offering the same or equivalent education to general education students who have aged out while eliminating education services for special education students.” On the ADA and section 504 claims, the court held that the students had not met their burden of identifying a reasonable accommodation that would allow disabled students to benefit meaningfully from the adults’ schools.
On appeal, the Ninth Circuit reversed the district court’s ruling on the IDEA claim. The court framed the issue as whether the Act ran afoul of the IDEA, which restricts the power of states to establish age limits on special-education eligibility in certain circumstances. The court ruled that the Act did run afoul of the IDEA, pointing out that the IDEA requires states to provide a free appropriate public education to all children with disabilities residing in the state between the ages of 3 and 21. However, it noted that the law contains the following exception to the age limit: “A state’s duty to provide special education to children with disabilities does not extend to children aged 3 through 5 or 18 through 21 to the extent that [the duty’s] application to those children would be inconsistent with state law or practice, or the order of any court, respecting the provision of public education to children in those age ranges.”
Based on the legislative history of the IDEA, which stated that “states are free to elect not to provide special education to disabled students between 18 and 21, but only if they also elect not to provide ‘free public education’ to nondisabled students,” the panel interpreted the exception to mean that Hawaii cannot deny special education to disabled students aged 18 through 21 if it in fact provides “free public education” to nondisabled students in that range of ages. The court found that the community school for adult program constituted “free public education” and that the state offered “free public education” to nondisabled students over 18 and under 22. As a result, the Act violated the IDEA by denying public education to special needs students aged 20 to 21, while offering it, in the form of the community schools for adults, to students without special needs.
The court affirmed the district court’s holdings as to the ADA and section 504 claims that the students had failed to establish the existence of reasonable accommodations that would make the community school for adults program generally accessible to disabled students.
Kentucky court determines that parents are entitled to reimbursement for tuition and transportation after stay-put order at private school where student unilaterally placed.
N.W. v. Poe, No. 2013-cv-07 (WOB-JGW) (Nov. 4, 2013).
http://www.nsba.org/SchoolLaw/Issues/SpecialEd/NW-v-Poe.pdf
N.W. was a student who displayed characteristics of severe apraxia and autism living in the Boone County School District. The Admissions and Release Committee (ARC) determined that he qualified for special education services due to a developmental delay. As a result, he was placed at St. Rita School for the Deaf. However, N.W.’s parents unilaterally enrolled him at Applied Behavioral Services School (ABS).
N.W.’s parents and the district entered into a mediated agreement in which the district would reimburse the parents for certain expenses and pay certain costs associated with N.W.’s tuition. At the July 2011 ARC meeting, the district’s board-certified behavioral analyst presented her preliminary transition plan for N.W. Although N.W.’s parents did not object to the plan, they had concerns about his transition. During the August 2011 ARC meeting, N.W.’s mother voiced her concerns about the students at the district’s transition school having lower verbal skills than N.W. In addition, the parents noted that without a more specific transition plan and schedule for N.W. at the district school, the parents would reject the district’s proposal.
The parents filed a due process request. The hearing officer determined that N.W.’s ARC contained the required members, and the district did not deny him a free appropriate public education (FAPE). In addition, the hearing officer ordered N.W. to continue working on a transition plan that was similar to the plan proposed by the district. The hearing officer ordered N.W.’s stay-put placement to be at ABS. The district was required to reimburse N.W. for the transportation and tuition expenses through the end of the 2012 summer session at ABS. Both parties appealed to the Exceptional Children’s Appeals Board (ECAB). ECAB affirmed the hearing officer’s decision, but issued a reverse stay-put order and held that N.W. was not entitled to compensatory education, attorney’s fees or reimbursement expenses. The parents appealed.
On appeal, N.W.’s parents argued that the district failed to develop and implement an appropriate individual education plan (IEP) because it failed to offer an appropriate plan to transition N.W. to a district school. The court found that N.W. did not suffer any substantive harm because he never transitioned to the district school and there was still time to figure out his transition plan. In addition, the court found that the district acted in good faith during the ARC meetings with the intention of providing N.W. with a learning environment that could meet the needs of his IEP. However, the court did reverse ECAB’s stay-put placement decision and reinstated the hearing officer’s findings. As a result, the district was required to reimburse the parents for tuition at ABS as well as transportation costs.
Ohio court of appeals affirms denial of district’s motion for summary judgment after student falls into open orchestra pit.
Jones v. Delaware City Sch. Dist. Bd. of Edn., 2013-Ohio-3907.
http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2013/2013-ohio-3907.pdf
In October 2009, a student was injured when he fell into the district high school’s open orchestra pit. The student’s family filed a complaint against the district, alleging that the district was negligent in allowing and maintaining the configuration of the orchestra pit as a “physical defect” as provided in RC 2744.02 and in failing to warn of the existence of a physical defect. The district filed a motion for summary judgment, arguing that the district was immune from liability and that the student was precluded from recovery under the open and obvious doctrine. The court denied the district’s motion for summary judgment. The district appealed.
On appeal, the court applied a three-tiered analysis to determine whether the district was immune from liability as a political subdivision. Under the first tier, a “political subdivision is not liable in damages in a civil action for injury, death or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” The court found that the student’s claims fell within the general grant of immunity provided under the first tier.
Under the second tier, the court was required to determine whether any one of the five statutory exceptions applied to waive the district’s immunity. In this case, the student’s family argued that RC 2744.02(B) exception applied. That section provides that “political subdivisions are liable for injury, death or loss to person or property that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function.” In this case, the district claimed there was no physical defect in the orchestra pit and that the orchestra pit operated as intended. The court disagreed, finding that although the orchestra pit was not inherently defective, the orchestra pit without reflective tape and lights could constitute a physical defect. Accordingly, the court of appeals found that the trial court did not err when it determined that genuine issues of material fact remained as to whether the student’s injury was due to a physical defect.
Under the third tier, immunity may be reinstated if the political subdivision can demonstrate the applicability of one of the statutory defenses. The district argued that immunity should be reinstated because it used its judgment and discretion in determining how to use equipment and facilities. The court rejected this argument, finding that the decision to open and close the pit was a routine decision that did not involve policymaking or a high degree of discretion. The court found that the affirmative defense did not apply to this case and could not be used by the district to reinstate its immunity.
As a result of the three-tiered immunity analysis, the court of appeals found the trial court did not err in denying the district’s motion for summary judgment.
Eighth Circuit affirms ruling that statutory non-compliance did not establish that a Missouri school district acted in bad faith or with gross misjudgment.
B.M. v. South Callaway R-II Sch. Dist., 8th Cir. No. 12-3841 (Oct. 17, 2013).
http://media.ca8.uscourts.gov/opndir/13/10/123841P.pdf
B.M. was a fourteen-year-old student in the South Callaway R-II School District whose behavior began to worsen over the years. In 2007, his mother took him to a pediatrician who referred him for further evaluation. The pediatrician also provided his mother with forms for his teachers to record their observations of his classroom conduct. At the end of the 2006-2007 school year, B.M.’s mother had not requested that the district evaluate or accommodate B.M. under section 504 of the Rehabilitation Act or the Individuals with Disabilities Education Act (IDEA).
In January 2008, the school principal proposed that B.M. be evaluated for accommodation under the IDEA. However, B.M.’s mother refused to return the IDEA authorization forms to the district. During February 2008, B.M.’s mother took him to an outside center where he was diagnosed with ADHD. In addition, B.M. was diagnosed with dysthymic disorder, but neither an evaluation nor accommodation under section 504 or IDEA was recommended.
Subsequently, B.M.’s mother requested that he be evaluated under section 504. However, the district would not conduct a section 504 evaluation until an IDEA evaluation was completed. The district determined that B.M. did not qualify for an accommodation under IDEA and provided his mother with a section 504 referral form. The district proposed a section 504 education plan, but his mother objected to it and pulled B.M. out of school. B.M.’s mother filed a complaint with the United States Department of Education’s Office of Civil Rights (OCR) alleging statutory and regulatory violations.
Eventually, B.M.’s mother agreed to a section 504 plan proposed by the district and allowed B.M. to return to school. OCR determined that the district failed to comply with section 504 and the Americans with Disabilities Act (ADA). B.M.’s parents filed a lawsuit against the district under section 504 and the ADA. The parents alleged that the district failed to evaluate and accommodate B.M. and failed to comply with statutory procedural requirements. The district found that the parents failed to exhaust their administrative remedies under IDEA, and the parents appealed. The court of appeals ruled that the parents must establish that the school officials acted in bad faith or with gross misjudgment. The court found that the parents did not contest the bad faith or gross misjudgment requirement in their opposition to summary judgment, and therefore could not preserve those arguments for appellate review.
In addition, the court of appeals determined that the facts presented by B.M.’s parents amounted to no more than possible instances of statutory non-compliance. Statutory non-compliance does not equal bad faith or gross misjudgment. The district repeatedly proposed accommodations for B.M. and sought authorization to pursue the IDEA evaluation process, but B.M.’s mother refused. As a result, the parents did not establish evidence of bad faith or gross misjudgment by the district.
Ohio Supreme Court finds no advance notice required for informational picketing.
Mahoning Edn. Ass’n. of Dev. Disabilities v. State Emp. Relations Bd., 2013-Ohio-4654.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-ohio-4654.pdf
In 2007, while the Mahoning Education Association of Developmental Disabilities (union) was negotiating a new contract with the Mahoning County Board of Developmental Disabilities (MCBDD), union members picketed an MCBDD evening board meeting to express their dissatisfaction with the progress of contract negotiations.
RC 4117.11(B)(8), a provision in Ohio’s Public Employee Collective Bargaining Act, prohibits public employees from picketing, striking or other concerted refusal to work without providing ten days’ written notice to the public employer and the State Employment Relations Board (SERB). In this case, the union did not submit such a notice, either to SERB or to MCBDD. MCBDD filed an unfair labor practice charge with SERB, who concluded that the union violated the statute and had committed an unfair labor practice. The union appealed to the trial court, challenging the constitutionality of the ten-day notice provision. The trial court upheld the constitutionality of the provision, and affirmed SERB’s decision. The Seventh District Court of Appeals reversed, finding that the ten-day notice provision was unconstitutional. SERB and MCBDD both appealed to the Supreme Court.
On appeal, the Ohio Supreme Court affirmed the court of appeals’ judgment reversing the decision of the trial court, but on alternative grounds. The court held that the legislature did not intend for RC 4117.11(B)(8) to apply to informational labor picketing, and instead should only be applied to picketing related to a work stoppage, a strike, or other “concerted refusal to work.” The court found that the statute was improperly applied to the union’s picketing activity, and the union did not commit an unfair labor practice. The Ohio Supreme Court did not address the constitutional issue in the case.
District prevails on summary judgment after disruptive elementary students were disciplined by district and handcuffed by local police.
Mitchell, et. al., v. Westerville City Sch. Dist. Bd. of Edn., S.D.Ohio No. 2:11-cv-1057 (Sept. 6, 2013).
http://dockets.justia.com/docket/ohio/ohsdce/2:2011cv01057/150715
In October 2011, two elementary school students, Mikeal (8) and Michelle (7) Mitchell, were riding the bus to school. Surveillance video from the bus shows that Mikael was disruptive and teased several students that morning. As students exited the bus, a female student struck Mikeal with her hand. The bus driver radioed for a school administrator to come to the bus, and she stood in the aisle to block Mikeal and the female student from exiting for about ten minutes while the school principal arrived. After exiting the bus, Mikeal and Michelle both went to the principal’s office, where they refused to comply with her instructions, ran around, knocked items off the shelves, threatened to hit her, and used profanity. The principal spoke to the children’s mother on the phone and explained the urgent need for her to come to the school, but received no indication from the mother that she would come. The principal ultimately called the police because she believed she needed help controlling and monitoring the children until their mother got them. When a Westerville City Police officer arrived, the children refused to listen to him, continued to run around and knock items off the principal’s shelves, and called the officer profane names. The officer called for backup assistance and the police later placed the children in handcuffs and transported them out of the principal’s office.
The principal suspended the children for 10 days and recommended to the superintendent that they be expelled. A hearing was held, at which the hearing officer determined that the children had violated the Code of Conduct by engaging in assault, destroying school property, engaging in disruptive behavior, engaging in insubordinate behavior, using profanity on school property, and taunting another student. The hearing officer recommended that the students be expelled for 80 days. The superintendent accepted the hearing officer’s recommendations. The family filed a complaint asserting a claim under 42 USC 1983 for racial discrimination against the district, the principal, and the bus driver. The complaint alleged that the students were discriminated against on the basis of their African-American race. The complaint also asserted a state law claim for false imprisonment against the bus driver.
The court found that the district and school employees were entitled to summary judgment on the Section 1983 claim because the plaintiffs did not show they suffered a constitutional deprivation or submit any evidence refuting the district’s position that the expulsions of the children were based solely on their conduct and not their race. Neither was there any evidence of the existence of a custom or policy of discriminatory discipline.
With regard to the false imprisonment claim, the court found that the bus driver was immune from liability for false imprisonment. Under Ohio’s political subdivision tort liability statute, the bus driver was immune unless she acted manifestly outside the scope of her employment responsibilities, acted with malicious purpose, in bad faith, or in a wanton or reckless manner. The bus driver established that she acted within the scope of her job responsibilities, and the court found that she did not act with malicious purpose, in bad faith, or in a wanton or reckless manner when she detained Mikeal on the bus for about 10 minutes. The court found that even if it was true that the bus driver overreacted, her behavior did not rise to the level of acting with a malicious purpose. As a result, the court granted the district’s motion for summary judgment.
Ohio court of appeals upholds State Board of Education’s decision to deny short-term substitute teaching license to lawyer indefinitely suspended from the practice of law.
Link v. Ohio State Bd. of Edn., 2013-Ohio-4229.
http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2013/2013-ohio-4229.pdf
In 2011, Wayne Link submitted an application for a short-term substitute teaching to the Ohio Department of Education (ODE). At this time, Link informed ODE that his license to practice law had been indefinitely suspended. In 2012, a hearing was held on Link’s short-term substitute teaching license application. However, Link’s law license was still suspended because he failed to undergo a psychiatric evaluation, among other things.
The hearing officer recommended that Link’s application for a substitute teaching license be suspended in accordance with RC 3319.31(B)(1). Link filed objections to the recommendation. In December 2012, the Ohio State Board of Education (SBOE) passed a resolution denying Link’s application. In addition, the SBOE ordered Link be permanently ineligible to apply for any license issued by SBOE. Link appealed, and the trial court affirmed SBOE’s decision.
On appeal, the court of appeals rejected Link’s argument that the trial court failed to provide findings of fact and conclusions of law because the trial court was not required to make separate findings of fact and conclusions of law. In addition, the court determined that the SBOE and the hearing officer had jurisdiction to determine Link’s fitness to hold a substitute teaching license. The hearing officer did not make any determination as to Link’s fitness to practice law.
The court of appeals determined that Link was not punished twice for the same conduct that caused his law license to be suspended by the Supreme Court of Ohio. The evidence that was used to suspend Link’s law license was also submitted to the hearing officer. However, since Link did not attend the hearing regarding his substitute teaching license, the evidence was undisputed. The SBOE applied the evidence to make a “separate determination” under RC 3319.31 in regards to whether Link should be granted a substitute teaching license. As a result, the court ruled in favor of the SBOE.
Ohio Supreme Court finds that the Board of Tax Appeals acted unreasonably and unlawfully when it reinstated the county auditor’s valuation.
Dublin City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2013-Ohio-4543.
https://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-ohio-4543.pdf
East Bank Condominiums II, LLC began constructing a condominium complex in 2006. The Franklin County Auditor found the aggregate true value of the twenty-one units amounted to $8,139,300. Subsequently, East Bank challenged the valuation of the property with the Board of Revision (BOR). The school board filed countercomplaints “seeking to retain the auditor’s valuation” of the units. However, the school board did not present any witnesses or additional information during the BOR hearing. The only evidence presented was on behalf of East Bank. The BOR accepted the valuation of $3,100,000, submitted on behalf of East Bank, as the total fair market value of the units. The school board appealed to the Board of Tax Appeals (BTA).
The BTA determined that East Bank did not present competent and probative evidence in support of its requested decreases in value and reinstated the auditor’s valuation of the twenty-one units. East Bank appealed, arguing that the BTA’s decision was unlawful and unreasonable by reinstating the auditor’s value when the school board did not introduce evidence in support of the auditor’s valuation. The school board argued that East Bank’s appraisal did not amount to competent and probative evidence of the true value of the property.
The Ohio Supreme Court of ruled that when a “party appeals the BOR’s decision to BTA, the appellant has the burden to prove its right to a reduction or increase” in the BOR’s value determination. East Bank had the burden of establishing its right to a reduction. The court found that East Bank did present testimony from an appraiser and its managing partner. Once the BOR adopted East Bank’s valuation, the burden shifted to the school board with regard to going forward with evidence on appeal to BTA. The school board failed to sustain its burden because it did not present evidence supporting its own valuation or the auditor’s valuation.
Additionally, the court ruled that BTA abused its discretion by reinstating the auditor’s valuation because East Bank presented competent and credible evidence, but the school board did not. The auditor’s valuation was too high, and it did not account for the unfinished units or the units’ depreciation in value resulting from the market. The court determined that BTA acted unreasonably and unlawfully by adopting the auditor’s valuation instead of determining the taxable value of the property, and that BTA’s finding contradicted the evidence in the record. BTA’s decision was reversed, and the court adopted the valuation of $3,100,000.
Ohio Supreme Court holds valuation complaint incorrectly identifying the legal owner should not be dismissed for lack of jurisdiction, provided the complainant has sufficient, independent standing.
Groveport Madison Local Schools Bd. of Edn v. Franklin Cty. Bd. of Revision, 137 Ohio St.3d 266, 2013-Ohio-4627.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-ohio-4627.pdf
In March 2009, the John W. Messmore Living Trust filed a valuation complaint, seeking a reduction of the Franklin County auditor’s valuation of a self-storage facility for tax-year 2008. Although the complainant was identified as the “John Messmore Living Trust,” the property owner of record was “Hamilton-33 Partnership.” In response to the complaint, the Groveport Madison Local Schools Board of Education filed a countercomplaint, requesting retention of the auditor’s valuation of $2,167,100.
At the Franklin County Board of Revision (BOR), the trust submitted an appraisal, which valued the property at $1,600,000. The BOR ordered a reduction of the property value to $1,600,000 as requested by the trust. The school board appealed the BOR’s order to the Board of Tax Appeals (BTA), arguing that the trust’s complaint should have been dismissed due to its failure to identify the true owner of the property. The BTA granted the motion to remand for dismissal.
On appeal, the Ohio Supreme Court held that a complaint against valuation that misidentifies the legal owner should not be dismissed for lack of jurisdiction, provided the complainant has sufficient, independent standing. The court explained that a tax board should be deprived of jurisdiction only if the complainant fails to comply with a mandatory standing requirement, and that the plain language of the statute governing complaints against valuation does not contain a mandatory requirement that the complaint correctly identify the legal owner of the subject property. In this case, the court found that the trust had standing to file a valuation complaint even though it did not hold legal title to the subject property since it owned other real property in Franklin County and submitted documentation to BTA in support of that contention.
Because the court found no statutory requirement that a valuation complaint accurately identify the legal owner of the property, the court found that BTA erred in concluding that the complaint’s misidentification of the property owner divested the BOR of jurisdiction. The court reversed BTA’s decision and remanded the matter to BTA to determine the board’s appeal on the merits.
Ohio court of appeals rules that arbitrator exceeded his authority when he used a termination standard not provided in the collective bargaining agreement.
Chardon Local Sch. Dist. Bd. of Edn. v. Chardon Edn. Assn., 2013-Ohio-4547.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2013/2013-ohio-4547.pdf
Amanda Stechschulte was a high school teacher in the Chardon Local School District convicted of vehicular assault after causing a serious motor vehicle accident while driving under the influence of alcohol. The incident occurred in March 2010 the teacher returned to work in April 2010 for the remainder of the school year. In October 2010, the teacher was found guilty of vehicular assault and was sentenced to two years of community control that included 90 days of residential community control in the Lake County jail. After the sentencing hearing, the district suspended her without pay. In November 2010, the district terminated Amanda’s teaching contract for good and just cause under RC 3319.16.
The Chardon Education Association/OEA/NEA filed a grievance against the district after Amanda was suspended without pay and later terminated. The grievance focused on whether the district properly and with “good and just cause” suspended the teacher without pay and ultimately terminated her employment. The arbitrator concluded that the district lacked good and just cause to suspend and terminate Amanda’s employment and that she should be awarded back pay.
The district moved to vacate the arbitrator’s award. The trial court entered judgment for the district, deciding that the arbitrator had based his decision solely on the conclusion that the district could not suspend or terminate her teaching contract unless her conduct amounted to an “egregious act and/or behavior.” The court found that, by applying this standard, the arbitrator “went beyond misinterpreting the collective bargaining agreement (CBA), he added terms or provisions to the CBA.” The union appealed.
On appeal, the court of appeals agreed with the trial court that the arbitrator misinterpreted the CBA and that the trial court properly vacated the award. The court agreed that, although the CBA mentioned “egregious acts and/or behavior,” the language did not apply to the termination or suspension of teacher contracts and rather applied to the contractual rights provided by the CBA between the parties. The court found that the express terms of the CBA stated that terminations would be pursuant to RC 3319.16, i.e. for good and just cause, and did not require the district to prove that the teacher’s conduct was egregious before it could suspend or terminate her teaching contract. As a result, the court of appeals confirmed that the arbitrator exceeded his authority and improperly executed his powers when he utilized a standard not provided for in the CBA and ignored the application of the good and just cause standard to the teacher’s termination.
Ohio Supreme Court upholds teacher’s termination because his refusal to eliminate religious symbols from the classroom was considered insubordination.
Freshwater v. Mt. Vernon City Sch. Dist. Bd. of Edn., 2013-Ohio-5000.
http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-ohio-5000.pdf
In June 2008, the school board passed a resolution of its “intent to consider the termination” of John Freshwater’s teaching contract. The resolution described the grounds for Freshwater’s termination, including failing to remove religious materials from the classroom and imposing his personal religious beliefs into his teachings after repeatedly being told not to do so.
Freshwater requested a public hearing in accordance with RC 3319.16. The referee found that the board terminated Freshwater’s contract for good and just cause. The board adopted the referee’s report and determined that Freshwater’s failure to follow the established curriculum, and his disobedience of instructions and orders from his superiors amounted to good and just cause to terminate his employment contract.
Freshwater filed suit appealing his termination. The trial court affirmed the board’s decision, and Freshwater appealed. On appeal, the court affirmed the trial court’s ruling and found that it did not abuse its discretion. The court stated that good and just cause is defined as a fairly serious matter and noted that the referee determined that “Freshwater’s repeated violation of the U.S. Constitution and repeated acts in defiance of direct instructions and orders of his superiors both constituted a fairly serious matter.” Freshwater made a discretionary appeal to the Ohio Supreme Court, which was accepted.
Ultimately, the Ohio Supreme Court ruled that the board had good and just cause to terminate Freshwater’s contract. The court found that Freshwater continuously ignored and defied the district’s orders by displaying religious materials in his classroom. In addition, Freshwater refused to remove his personal Bible from his desk and also refused to remove a poster of former President George W. Bush and Colin Powell and others in prayer from his classroom wall. The court stated that district orders must be considered reasonable and valid to amount to insubordination.
The board contended that the display of Freshwater’s personal Bible on his desk violated the Establishment Clause. However, the court found that the First Amendment protected the display of the personal Bible and did not threaten the Establishment Clause. The district’s order for Freshwater to remove the Bible from his desk was neither reasonable nor valid because this alone would not amount to insubordination or grounds for his termination.
Additionally, the court considered Freshwater’s refusal to remove the Oxford Bible, Jesus of Nazareth and the poster depicting George W. Bush and Colin Powell as insubordination because those orders were reasonable, valid and did not violate the First Amendment. While working in the district, as noted by the court, Freshwater could not ignore “direct, lawful, edicts of his superiors.” As a result, the Ohio Supreme Court affirmed the ruling of the court of appeals and upheld Freshwater’s termination based on insubordination.
Eleventh Circuit determines that Alabama school board did not act with deliberate indifference to actual notice of sexual harassment.
KB v. Daleville City Bd. of Edn., 11th Cir. No-12-15518 (Sep. 30, 2013).
http://www.ca11.uscourts.gov/unpub/ops/201215518.pdf
KB was a student in the Daleville City School District. Her mother, ES, filed a lawsuit against the school board on KB’s behalf alleging that she was sexually harassed by Alan Moody, a school custodian. It was alleged that Moody put his hand on KB’s buttocks. The district court granted summary judgment on ES’ Title IX claim. ES appealed alleging that genuine issues of material facts remained in dispute and summary judgment was improper. On appeal, the court reviewed prior claims of sexual harassment against Moody to determine if the school board had actual notice.
In 1996, Kathy Davis was a teacher in the district. During her first year at Windham Elementary, Davis informed the principal, Julia Fulford, that Moody had touched her buttocks three to five times. Davis did not want a formal complaint filed. The principal informed Moody that he was prohibited from entering Davis’ classroom unless others were present. In addition, the principal made a written record of the incident and placed it in her office personnel file and never received another complaint against Moody. The court of appeals found that Fulford was an appropriate person, under Title IX, who had authority to institute corrective measures on behalf of the district. Additionally, the court determined that a reasonable jury could find that Fulford had actual notice of the possibility that Moody may sexually harass a student like KB in the future. However, the principal’s response to Davis’ claims was not clearly unreasonable.
In 2006, Heather Nichols, a school employee, informed then-principal Christopher Mitten that Moody had touched her buttocks inappropriately on two occasions. The principal spoke to Nichols and told her that he would thoroughly investigate the allegations. The principal contacted the superintendent to verify the policies and procedures that must be followed as a result of the allegations. The principal asked Nichols to make a written statement of her allegations because they needed to be submitted to the central office.
Mitten drafted a letter detailing the incident. The court of appeals determined that Mitten had actual notice of the possibility that Moody would sexually harass another teacher or student because he received reports of Moody inappropriately touching Nichols. The court found that Mitten was an appropriate person under Title IX to have authority and take corrective measures. Mitten promptly began investigating the allegations when he received the email. The court of appeals found that the district could not be liable under Title IX for Mitten’s conduct because his response to the allegations was not unreasonable.
In regards to Nichols’ allegations, the court found that the superintendent acted appropriately based upon the information he was provided. The superintendent reviewed the investigatory report and consulted the school board’s legal counsel. Also, the superintendent informed Moody of the allegations against him, gave him a copy of the district’s sexual harassment policy and told him to carefully coordinate his movements around others. Therefore, the school board could not be liable for the superintendent’s actions under Title IX.
Subsequently, Moody was transferred to the middle school. KB alleged that Moody inappropriately touched her buttocks after students and teachers informed the principal that Moody improperly looked at others. However, Moody’s inappropriate looks failed to provide the principal with actual notice that he might commit a sexual assault on a student like KB. The court of appeals did find that the school board had actual notice of Moody sexually harassing/assaulting KB. In this case, KB missed school because of her fear of Moody. The school board’s response, however, was not clearly unreasonable. Once the principal learned of KB’s allegations against Moody, he restricted Moody’s movements. Within one week of violating those restrictions, the superintendent recommended Moody’s termination. The school board fired Moody less than two months later. As a result, the court of appeals affirmed the district court’s grant of summary judgment.
Michigan school officials’ actions did not result in “state-created danger” that led to school shooting.
Walker v. Detroit Public Sch., 535 Fed. Appx. 461 (6th Cir.2013).
http://www.ca6.uscourts.gov/opinions.pdf/13a0787n-06.pdf
In 2008, two high school students began to fight in the hallway. School security officers broke up the fight and returned the students back to classes. After school, one of the students returned and opened fire on a group of students walking away from the school. The other student was killed, and three other students were injured.
The deceased student’s mother sued the district, school principal and two security officers under 42 U.S.C. Section 1983 in violation of her substantive due process rights. The district court dismissed the school system as a defendant for failure to state a claim and later granted summary judgment in favor of the school employees on all claims.
On appeal, the student’s mother raised three arguments. First, she contended that the school system’s merger with a nearby high school resulted in a “state-created danger” of increased violence due to the known presence of rival gangs at the two schools. Second, she maintained that school officials failed to respond adequately to the fight between the two students and that failure caused a “state-created danger” that led to the shooting. Finally, she argued that a twenty-five year history of serious gang violence in and around the high school represented a “public nuisance” under state law attributable to the school system and the school officials.
The court of appeals affirmed the decision of the district court. With regard to the “state-created danger” claims, the court held that there was no constitutional requirement that the government “protect the life, liberty, and property of its citizens against invasion by private actors.” Additionally, the court found that when an official intervenes to protect a person, then later returns the person to a situation with a “preexisting danger,” the intervention does not satisfy the affirmative act requirement for state-created danger. It also found that even if a state actor is aware of a substantial risk when it takes action, the court is “unlikely to find deliberate indifference if the action was motivated by a countervailing, legitimate governmental purpose.” The court found that neither merging the high schools nor breaking up the fight satisfied the affirmative act element of a state-created danger claim.
The court found the relationship between the merger and the violence to be “too attenuated and indirect to count as an ‘affirmative act’ that placed [the plaintiffs] in the setting of a state-created peril.” With regard to intervening in the fight, the court found that the security officers’ actions fell squarely in line with other cases where state actors intervened and subsequently returned the victim to a pre-existing danger. In such cases, the intervention was held not to be an “affirmative act” for state-created danger purposes. The court of appeals upheld the district court’s disposition of both state-created danger theories.
The court of appeals also affirmed the trial court’s dismissal of the public nuisance claim. The court found the district court’s dismissal of the public nuisance claim against the school proper because the school system was immune from tort liability. The court found that the school officials’ failure to take additional disciplinary or preventative measures after breaking up the fight did not constitute such gross negligence as to be the proximate cause of the students’ injuries. As a result, the court found that the school officials were immune from tort liability under Michigan law and were properly granted summary judgment on the public nuisance claim.
Arizona court of appeals upholds private school scholarship program for students with disabilities.
Niehaus v. Huppenthal, 310 P.3d 983 (Ariz. Ct. App. 2013).
http://azcourts.gov/Portals/0/OpinionFiles/Div1/2013/1%20CA-CV%2012-0242.pdf
In 2011, the Arizona legislature passed the Empowerment Scholarship Account (ESA) program that allowed the Arizona Department of Education to disburse public funds as scholarships. These scholarships provided educational options for qualified students with a disability, including the payment of tuition and fees at private schools. As a condition of the scholarship, the parent of a scholarship student had to agree to release the school district from all obligations to educate the student. Several plaintiffs filed suit, seeking to enjoin the department from disbursing the scholarships, alleging that the disbursement of money violated the “Aid Clause” and “Religion Clause” of the Arizona Constitution. The Maricopa County Superior Court denied the plaintiffs’ motion.
On appeal, the court affirmed the Superior Court’s decision. The “Religion Clause” of the Arizona Constitution states: “No public money shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” The court concluded that the ESA did not violate the religion clause because the ESA program was neutral toward religion and directed aid irrespective of religious affiliation.
The court also rejected the plaintiffs’ argument under the “Aid Clause” of the Arizona Constitution. The “Aid Clause” provides that “no tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” The court interpreted this provision to prohibit “the appropriation of public money to private or sectarian schools” and proceeded to determine that an “appropriation” under Arizona law means sums set aside for a specified object.” The court found that the “specified objects” under the ESA were the families receiving the scholarship funds, and not the sectarian schools where the students enrolled. As a result, the court did not find a violation of the Aid Clause. The court emphasized that recipients of the scholarship monies have discretion as to how to spend the ESA funds and do not have to spend any of the aid at a sectarian school.
The plaintiffs also argued that the ESA unconstitutionally conditioned receipt of a government benefit on the waiver of a constitutional right because it required that the parents of a qualified student promise not to enroll the student in public school. The Arizona Constitution requires the legislature to provide a free public education to pupils between six and twenty-one. The court ruled that the program did not require a permanent or irrevocable forfeiture of the right to a free public education. According to the court, the ESA only required that students participating in the program not be simultaneously enrolled in public school. It noted that the same requirement applied to students attending private schools or being home schooled. As a result, the court affirmed the trial court’s judgment.