School Law Summary 2014-3
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In this issue: Bullying • Collective Bargaining • Disability — Retirement • Discrimination — Sex • First Amendment • Fourteenth Amendment • Individuals With Disabilities • Liability • Pupil-Activity Permit • Religion • Student — Discipline
Fifth Circuit rejects §504 claim after Texas student commits suicide, finding district was not “deliberately indifferent.”
Estate of Montana Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982 (5th Cir. 2014).
http://www.ca5.uscourts.gov/opinions/pub/12/12-41139-CV0.pdf
Montana Lance was a fourth grade student who received special education services at his elementary school in Texas. When Montana was in second grade, his mother informed a teacher that he was “making verbal statements about hurting himself at home.” He underwent a full psychological evaluation that concluded that Montana was “emotionally disturbed.” At school, Montana was the subject of peer bullying and began meeting with a school psychologist for individual counseling. Around that time, he told his teacher that he wanted to kill himself. A school counselor concluded that the “lethality” of Montana’s statements was low, but still notified Montana’s father. Montana’s parents arranged for him to meet with a psychologist, who said Montana gave no indication that he was intending to commit suicide.
Later that month, some students called Montana a name and pushed him into the rails of the cafeteria serving line. Montana stormed off and sat by himself at an empty table. Later that day, Montana was sent to the school office for talking in class. While in the office, he was allowed to use the nurse’s bathroom. When a significant amount of time passed, the nurse checked on Montana, and he said “he’d be right out.” However, Montana stopped responding to the nurse’s inquiries. When the nurse entered the bathroom, she found Montana hanging from his belt. He had no pulse and was pronounced dead upon arrival at the hospital.
Montana’s family sued the district, alleging claims under section 1983, section 504 and state law. The district court granted the district’s motion for summary judgment. The family appealed.
On appeal, the fifth circuit affirmed the lower court’s decision. The family claimed that the district “acted with gross professional misjudgment by failing to provide Montana educational services necessary to satisfy §504’s FAPE requirement.” The court rejected this claim because the district had provided Montana a FAPE under the IDEA. The family had never challenged the sufficiency of Montana’s IEP or the process through which it was developed.
The family’s next §504 claim was that the district was deliberately indifferent to the disability-based harassment Montana received from his peers. The court determined that the district was not deliberately indifferent to the bullying for three reasons. First, the district had fully investigated the two documented incidents of harassment and punished all of the students involved. Second, the district staff had responded to Montana’s needs in a proactive manner, often intervening or showing initiative in helping him. Third, the family’s expert witness acknowledged that the district’s anti-bullying policies and training programs were “appropriate and up to national standards.” As a result, the court concluded that the district’s response was “not clearly unreasonable.” It emphasized that the fact that just because a response proves ineffective does not necessarily mean it was “clearly unreasonable.”
Ohio district prevails on summary judgment in discrimination claim of student bullying by showing response was not “clearly unreasonable in light of known circumstances.”
Waters v. Perkins Local Sch. Dist. Bd. of Edn., N.D. Ohio No. 3:12-cv-00732 (March 31, 2014).
http://www.gpo.gov/fdsys/pkg/USCOURTS-ohnd-3_12-cv-00732/pdf/USCOURTS-ohnd-3_12-cv-00732-2.pdf
Two brothers who attended Perkins Local School District in Ohio alleged that the board of education and several administrators discriminated against them because of their race and national origin. The brothers presented evidence that they were repeatedly verbally accosted, pushed, tripped and slapped. On some occasions, students used racial slurs or derogatory references to their Cuban heritage. The boys’ parents alleged that the harassment deprived their sons of equal access to the school’s resources and opportunities. One brother testified he did not try out for the school basketball team, avoided school dances, and switched instruments in the band to avoid students who harassed him. He ultimately ended up attending a private school in part because of the harassment he endured from his peers.
The district alleged that the students were not deprived of educational benefits because they had good attendance and grades, and because students do not have a constitutional right to participate in extracurricular activities. The court rejected these arguments and highlighted that the parents were not alleging the district violated their sons’ rights to participate in extracurricular activities, but rather that their deliberate indifference to the peer harassment denied their sons equal access to their school’s resources and opportunities.
Ultimately, the court found that the parents’ claims failed because the district responded to the reported incidents in a manner that was not “clearly unreasonable in light of known circumstances.” The court found that the district’s potential liability arose only from their response to “known acts of harassment.” In response to reported incidents of harassment, the district “issued detentions, suspensions, communicated with parents, interviewed students, and changed class schedules.” The parents contended that the district’s responses did not work, as the harassment did not end, and that the district should have imposed harsher penalties, including expulsion. The court, however, reiterated that the deliberate indifference standard “does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular remedial demands.” As a result, the court found that the district’s responses to the reported harassment were not clearly unreasonable and granted the district’s motion for summary judgment.
The court also found that the district had no duty to end the harassment under the principles of substantive due process and that the actions they took did not constitute affirmative acts for the purposes of the state-created danger exception.
New York court upholds discipline of teachers who legally picketed because protests jeopardized student safety.
Matter of Santer v. Bd. of Edn. of E. Meadow Union Free Sch. Dist., 23 N.Y.3d 251 (2014).
https://www.nycourts.gov/ctapps/Decisions/2014/May14/51-52opn14-Decision.pdf
In March 2007, members of the East Meadow Teachers Association (EMTA) displayed picketing signs from their parked cars where parents were dropping off their children for school. The picketing, which was part of an organized EMTA protest over the lack of a new collective bargaining agreement, took place on the teachers’ own time, and all participating teachers arrived to work on time. The board of education for East Meadow Union Free School District (BOE) brought disciplinary charges against the teachers in connection with the picketing, alleging that the teachers’ actions jeopardized the students’ safety by forcing students to be dropped of in the middle of the street instead of at curbside. Although the teachers held weekly picketing demonstrations for more than two and a half years, this instance was the only time the teachers parked their cars in the street and the only time the district took disciplinary action against a picketing teacher.
At arbitration, the arbitrator concluded that the teachers intended to and did disrupt the student drop off and that the parked cars created a health and safety risk to children who had to be dropped off in the middle off a busy street. Both teachers were fined. The teachers appealed, arguing that the discipline violated their right to free speech under the First Amendment. The state trial court rejected their argument. The appellate court reversed the arbitrator’s decision, finding that the discipline violated the teachers’ First Amendment right of free speech. The district then appealed to the state’s highest court, which reversed the appellate court’s decision.
The majority analyzed the case using the two-prong test enunciated in Pickering v. Bd. of Edn. of Township High Sch. Dist. 205, 391 U.S. 365 (1968). The first prong is whether the speech related to a matter of public concern. If it did not, the employee’s speech had no First Amendment protection. The majority determined that the labor dispute affected political and social issues that were important to the public and so the speech in this case did relate to a matter of public concern.
The second prong of the Pickering test weighs the employee’s interests in free speech against the public employer’s interest in providing efficient public service. The majority ruled that the school board’s interests predominated in this case, since the teacher’s actions compromised student safety and disrupted school operations. The court recognized a strong public policy argument in favor of protecting children and the school’s duty of ensuring the safety of its students in its physical custody or “orbit of authority.” Additionally, because teachers picketed on a weekly basis without being disciplined, the court held that the teachers were not being disciplined on the basis of their speech, but rather on the disruptive and unsafe parking demonstration that took place that day.
Ohio court finds STRB incorrectly denied disability retirement benefits to principal for his debilitating headaches.
State ex rel. Menz v. State Teachers Retirement Bd. of Ohio, 2014-Ohio-2419.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-2419.pdf
Jason Menz worked as an elementary school principal with the Liberty Local School District. Menz suffered from severe and debilitating headaches that affected his ability to perform his customary job duties, causing him to frequently be absent from work. During the 2010-2011 school year, Menz was absent 132 days due to personal illness. In March 2011, the district declined to renew his administrative contract.
In 2009, Menz sought treatment, but continued to suffer from severe headaches. A doctor concluded that Menz should be considered permanently disabled, as his “migraine condition is expected to last at least an additional several years, if not a decade or two.” Menz filed a disability benefit application in June 2011, which included a report from his attending physician. STRS scheduled an independent medical evaluation, which concluded that Menz was temporarily disabled and suggested additional treatment options. Despite the additional treatment, Menz’s headaches did not improve. The independent medical evaluation concluded that because Menz would not be returning to work with his headaches, he was “disabled,” but to grant permanent disability retirement would “close off potential for future improvement.” The Medical Review Board and the State Teachers Retirement Board (STRB) concurred with the independent evaluator’s opinion and denied Menz’s disability application. Menz appealed, seeking a writ of mandamus to order STRB to vacate its decision denying his application for disability retirement benefits. The matter was referred to a magistrate, who recommended that the court deny Menz’s request for a writ of mandamus.
On appeal, the court rejected the magistrate’s recommendation and granted Menz’s request for a writ. Pursuant to RC 3307.62, a member of STRS is entitled to disability coverage when the member is “mentally or physically incapacitated for the performance of duty by a disabling condition, either permanent or presumed to be permanent for twelve continuous months following the filing of an application.” In this case, the examining physicians agree that Menz was prevented from working due to his debilitating headaches. Furthermore, each physician stated unequivocally that he was unable to return to work within the next 12 months. As a result, the evidence in the record supported that STRB abused its discretion when it determined Menz was not entitled to disability retirement benefits.
Seventh Circuit determines that Indiana school district impermissibly discriminated against the hair length of male basketball players.
Hayden v. Greenburg Cmty. Sch. Corp., 7th Cir. Case No. 13-1757 (Feb. 24, 2014).
A.H. attended school in Greensburg, Indiana. The school district’s “Dress and Grooming” policy permits the superintendent to establish grooming guidelines that are necessary to promote discipline, maintain order, secure the safety of students, and provide a healthy environment that is conducive to academic purposes. The guidelines also apply to athletic teams. The junior high school established an athletic code of conduct that allowed each varsity head coach to determine the acceptable length of hair for a particular sport.
The boys varsity basketball coach established an “unwritten” hair length policy that applied to the boys basketball teams. The policy required each player’s hair to be cut above the ears, eyebrows, and collar. However, no girls teams were subject to a hair length policy. A. H. wanted to play basketball, but also wanted to wear his hair longer than the policy permitted. When he was in seventh grade, A.H. cut his hair in order to play basketball, but he did not feel like himself. The next year, he refused to cut his hair. He was allowed to practice with the boys team, but was ultimately removed from the team for failing to abide by the policy. He relocated to another school district to live with his grandparents in hopes of playing basketball without cutting his hair.
A.H. returned to Greensburg to begin his freshman year of high school. He qualified for the freshman boys basketball team and agreed to follow the hair length policy so he could play. In the fall of 2012, A.H. tried out for the boys basketball team when his hair was longer than the policy requirements. He was reminded that he would have to comply with the policy if he wanted to practice with the team. A.H. decided to live with his grandparents again and attend the high school in their district.
A.H.’s parents filed a lawsuit after A.H. was removed from the junior high school basketball team for refusing to cut his hair. The parents contended that the policy constituted impermissible sex discrimination and violated A.H.’s substantive due process rights. The trial court dismissed the substantive due process claim noting that public schools have the authority to enact and enforce dress and grooming policies. Additionally, the trial court found that because the hair length policy did not apply to male athletes as a class, it did not discriminate on the basis of sex.
On appeal, the court determined that the hair length policy “impermissibly discriminated based on sex.” The policy applies only to male athletes. Additionally, the policy allows each varsity head coach to determine an acceptable hair length for their respective sport, but there is no explanation as to why short hair may be more necessary for boys who play basketball but not girls. The court of appeals ruled that the policy makes a specific distinction between female and male athletes without a legally sufficient justification for the sex-based classification.
Ninth Circuit determines there was insufficient evidence to establish retaliation by the university against a professor.
Demers v. Austin, 9th Cir. No. 11-35558 (Sep. 4, 2013).
http://cdn.ca9.uscourts.gov/datastore/opinions/2013/09/04/11-35558.pdf
David Demers was a tenured associate professor at Washington State University (WSU). In addition to his faculty position, Demers owns and operates Marquette Books, an independent publishing company. Demers alleged that the university violated his First Amendment rights by retaliating against him as a result of Demers distributing a pamphlet titled “The 7-Step Plan” (Plan) and for distributing a draft introduction and draft chapters of an in-progress book called “The Ivory Tower of Babel” (Ivory Tower). The Plan suggested ways to strengthen the Mass Communications faculty at WSU. The Ivory Tower was described as being partly autobiographical and partly empirical.
Demers alleged that university administrators retaliated against him by giving him negative performance reviews that contained falsehoods, conducting two internal audits, and by completing a formal notice of discipline.
The district court ruled in favor of the university. The court held that the pamphlet and book draft were written and distributed in the performance of Demers’ official duties as a faculty member, and as such were not protected by the First Amendment. Additionally, the district court determined that the Plan did not address a matter of public concern. Demers appealed.
On appeal, Demers argued that writing and distributing the pamphlet was not done pursuant to his official duties. He also contended that even if he wrote and distributed the pamphlet pursuant to his official duties, the ruling in Garcetti v. Ceballos, 547 US 410 (2006) does not extend to speech and academic writing by a publicly employed teacher.
The court of appeals found that Demers was acting in his official capacity as a professor when he wrote and distributed the pamphlet and the book draft. However, the court ruled that the rule in Garcetti does not apply to teaching and academic writing performed pursuant to the official duties of a teacher and professor. The court noted that academic employee speech not covered by Garcetti is protected by the First Amendment using the test found in Pickering v. Bd. of Edn. of Township High Sch. Dist. 205, 391 U.S. 365 (1968). The Pickering test requires the employee to show that his speech addressed matters of public concern. The employee’s interest in commenting upon matters of public concern must outweigh the interest of the state in promoting the efficiency of the public services it performs through its employees.
The court found that the way in which the pamphlet was distributed reinforced the conclusion that it addressed matters of public concern. It was sent to WSU’s President and Provost as well as other faculty members, alumni, friends and newspapers. The pamphlet also was posted on Demers’ website, making it available to the public. It dealt with a matter of public concern, the court found, because it contained suggestions about the future of a WSU department. However, the court found that the university was entitled to qualified immunity even if it did violate Demers’s First Amendment rights because there was no Ninth Circuit ruling “about whether or how Garcetti might apply to a professor’s academic speech.” As a result, the case was remanded for further proceedings.
Eleventh Circuit rules that comments made by the president of a non-profit professional association were not considered speech as a public employee.
Hubbard v. Clayton Cty. Sch. Dist., 11th Cir. No. 13-12130 (June 27, 2014).
http://media.ca11.uscourts.gov/opinions/pub/files/201312130.pdf
Richard Hubbard was an administrator with the Clayton County School District. He was scheduled to be an assistant principal for an elementary school during the 2006-2007 school year. His duties did not include speaking to the media. In 2006, Hubbard was elected president of the Georgia Association of Educators (GAE). The GAE is a private, non-profit professional association that represents public educators in Georgia.
The GAE’s practice was to have its president work full-time as the GAE would pay the full compensation package for the president. They considered this to be an “on-loan arrangement.” Since an employee-president of GAE could not continue his benefits and retirement contribution, the school districts and GAE arranged for the president to remain an employee of the district from which he or she was recruited so that the president’s salary and benefits were paid by the school district and fully reimbursed by the GAE.
While acting as the spokesperson for the GAE, Hubbard made comments related to the district’s accreditation crisis. He specifically stated that individuals on the board should step down if allegations about them in the Southern Association of Colleges and Schools Report were true. Shortly after Hubbard’s comments, the board voted to discontinue employee leave that was not specified in board policy, which included the “on-loan agreement.” There were other employees who had “on-loan arrangements” like Hubbard’s, but they were able to return to their employment with the district. He decided to resign from the district, but later tried to rescind his resignation. He was not able to rescind his resignation because he had already cashed out his leave and had not reported to his assigned school.
Hubbard filed a lawsuit against the district alleging that he was retaliated against for his speech, violating his First Amendment rights. The district argued that Hubbard’s speech regarding the district’s accreditation crisis was speech pursuant to his official duties with the district and not protected. The trial court found that the First Amendment did not protect Hubbard’s speech because it was pursuant to his official duties for the district. Hubbard appealed.
On appeal, Hubbard argued that his comments were made while acting in his capacity as a representative of the union, and therefore were not made as an employee but as a public citizen. The court of appeals agreed and determined that Hubbard’s speech was made in his capacity as the GAE president. Hubbard was considered “on-loan” to the GAE, which meant that he was an employee of the district during his tenure as the president of the GAE. He did not have obligations as a district employee during that time and his relationship with the district was a formality so he could retain his benefits. The court determined that Hubbard was on leave from the district while he was acting as the president of the GAE. Hubbard’s comments regarding the accreditation crisis were not an official district communication and could not be attributed to the district. As a result, the court of appeals vacated the lower court’s decision and remanded the case for further proceedings.
New York court finds that the First Amendment protects teachers’ union activity.
Pekowsky v. Yonkers Bd. of Edn., No. 12 4090 (S.D.N.Y. May 29, 2014).
Marc Pekowsky was a teacher with the Yonkers School District and also served as the representative for the teachers’ union. As the union representative, Pekowsky had frequent dealings with the principal. The principal believed that it was difficult to work with Pekowsky. On several occasions, the principal informed Pekowsky that she did not want to deal with him because she believed he elevated things to emergency status.
In January 2012, the principal scheduled meetings with two teachers to discuss their excessive absences and teaching methods. Instead of informing Pekowsky of the meetings, the principal informed the alternate representative. Pekowsky asked the principal to find coverage for his class so he could attend the meetings, but she told him if he could not find coverage, then he should not be at the meetings. However, Pekowsky found another teacher to cover his class. The principal was upset that Pekowsky excused himself from his class without administrative approval.
After the meetings, Pekowsky came across two students in the hallway who were not supposed to be there. On his way to report the students to the main office, Pekowsky encountered one of the students in the office. When the student tried to leave the office, Pekowsky blocked him. The student then threatened Pekowsky, at which point Pekowsky raised his voice at the others in the office and told them that such threats would not be tolerated. During that same afternoon, the principal sent an email to the district Chief Academic Officer (CAO) regarding the issues she had with Pekowsky. The CAO forwarded the principal’s email to the district investigator. The CAO reported that Pekowsky “lost control of himself and caused a major scene in the main office with a student and again in a teacher’s classroom with other students.” As a result, Pekowsky was removed from the school pending an investigation.
It was recommended that Pekowsky be removed from his current school, and the superintendent agreed. The principal also placed a letter of admonishment in Pekowsky’s file. Pekowsky was told that he was being transferred permanently and would split his time between two middle schools, which would not allow Pekowsky to serve as the teachers’ union representative. Additionally, he would no longer receive stipends for participating in after-school activities because it was not offered at the school to which he was being transferred. Subsequently, Pekowsky filed an action alleging that the principal and board retaliated against him because of his union activities.
The board argued that the First Amendment did not protect Pekowsky’s union activity. The court of appeals found that Pekowsky’s advocacy on behalf of the teachers’ union and on behalf of other teachers in his capacity, as a union representative, was protected speech. When Pekowsky advocated on behalf of the union members, he was speaking as a union representative, not as a teacher. His speech as a union representative was protected because it was a matter of public concern.
Additionally, the court determined that Pekowsky was involuntarily transferred from a school he taught at for eight years. The transfer required him to split his time between two schools, and he would not be entitled to earn additional compensation as he previously did. As a result, the court denied the board’s motion for summary judgment seeking dismissal of Pekowsky’s First Amendment retaliation claim.
New York court denies school district’s motion to dismiss employee’s claim that speech was protected.
Ramirez v. Hempstead Union Free Sch. Dist. Bd. of Edn., E.D. N.Y. No. 13-cv-6429 (ADS)(WDW) (July 16, 2014).
Carlos Ramirez is of Hispanic origin and was employed as the Director of Technology and Chief Information Office for the Hempstead Union Free School District. His duties included maintaining and upgrading the district’s technological capabilities. Ramirez alleged that when Susan Johnson took office as the district’s superintendent, she informed Ramirez that she wanted to replace him because of his race.
If Johnson could increase the student passing rate within the district, she would receive a bonus. Ramirez alleged that he caught Johnson attempting to change failing grades to passing grades after he refused to make those changes without the required documentation. Johnson requested that Ramirez provide the consultants working under her with electronic access to student grades. Ramirez refused to provide the consultants with access to the grade database because they lacked proper authorization.
Subsequently, Ramirez received threats and admonishments from the deputy superintendent and board president who allegedly were acting on behalf of Johnson. Ramirez ultimately provided the consultants access to the grade database and later determined that a consultant altered some student grades. Additionally, Ramirez was forced to create a program that would automatically elevate failing grades to passing grades.
Ramirez sent a letter to the Commissioner of the New York State Department of Education and the Superintendent of Nassau County Board of Cooperative Educational Services (BOECS) informing them of the superintendent and deputy superintendent’s actions. He also informed the board. Ramirez was sent home from work the following day and learned he had restricted access to the district’s system. He then received a letter informing him that he was no longer permitted on school property without the superintendent’s permission. Additionally, he was required to return his school keys and any other district property he had. The board terminated Ramirez, and he filed a lawsuit for discrimination on the basis of national origin and violation of his free speech rights.
The district court found that the allegations sufficiently supported an inference of national origin discrimination because only employees of Hispanic origin were terminated, demoted, and stripped of their duties when Johnson became superintendent. The court also found that Ramirez suffered an adverse employment action because he wrote a letter to the Commissioner of the New York State Department of Education and the Superintendent of Nassau BOECS regarding the illegal inflation of student grades and was then sent home after the district learned of his whistleblowing, stripped of his ability to do his job, and then terminated. Lastly, the court found that there was insufficient evidence to grant qualified immunity to the board and superintendent because they did not meet their burden of showing their actions were objectively reasonable.
New York court finds county law violates the First Amendment’s Free Speech Clause.
People v. Marquan M., No.139 (N.Y. July 1, 2014).
https://www.nycourts.gov/ctapps/Decisions/2014/Jul14/139opn14-Decision.pdf
The Albany County Legislature adopted a statute that made cyberbullying a crime. The law became effective in November 2010. Violating this law made it a misdemeanor offense punishable by up to one year in jail and a $1000.00 fine.
Marquan M. attended Cohoes High School in Albany County. Marquan created a Facebook page using the pseudonym “Cohoes Flame.” He anonymously posted pictures of classmates and other adolescents. The posts described their alleged sexual practices and preferences, sexual partners and other types of personal information. A police investigation determined that Marquan authored the postings. He admitted to making the posts and was charged with cyberbullying. Marquan argued that the law violated his free speech rights under the First Amendment. The lower court denied his argument, and Marquan pled guilty to one count of cyberbullying, but reserved his right to raise his constitutional arguments on appeal.
The county court affirmed and determined that the law did not violate Marquan’s First Amendment rights. Marquan appealed. On appeal, Marquan argued that the cyberbullying law was overbroad because it included a vast array of protected expression and did not provide fair notice to the public of the proscribed conduct. The county, however, conceded that portions of the law were invalid.
The court of appeals recognized prohibiting speech must be limited to communications that “qualify as fighting words, true threats, incitement, obscenity, child pornography, fraud, defamation or statements integral to criminal conduct.” In this case, the law prohibited protected speech that was far beyond the cyberbullying of children. The law included many types of electronic communications, including telephone conversations, a ham radio transmission or even a telegram. The court noted that the First Amendment protects speech that is merely annoying and embarrassing, even if a child may be exposed to it. As a result, the court of appeals held that the county law violated the First Amendment’s Free Speech Clause.
Pennsylvania federal court grants preliminary injunction allowing female student to participate on all male wrestling team.
Beattie v. Line Mt. Sch. Dist., 992 F.Supp.2d 384 (M.D. Pa., 2014).
A.B. is a female seventh grade student in Line Mountain School District. She participated on school wrestling teams since the third grade. The district’s policy prohibits female students from participating on male varsity, junior varsity and junior high athletic teams, except for teams specifically designated as co-ed. The district articulated three reasons for the policy. First, based on anatomical differences between males and females, the district believed that boys are generally stronger and have less body fat than girls. This placed girls at a greater risk of injury than boys. Second, girls face a greater risk of inappropriate sexual contact and harassment when wrestling based on obvious anatomical differences. Third, the district believed that there was perceived emotional, psychological and moral risks associated with girls wrestling boys. A.B.’s father filed suit in federal district court against the district, alleging that the district’s policy violated the Fourteenth Amendment’s Equal Protection Clause.
The court granted A.B.’s motion for a preliminary injunction and barred the district from enforcing its policy. The court cautioned that gender classifications that rely on overbroad generalizations would not be sufficient and rejected the district’s safety argument. The court highlighted that the district had presented no evidence that A.B. was at greater risk because of her gender, other than generalized assumptions. The district acknowledged that boys could join without any requirement as to size, strength, speed or any other factor that could have an effect on safety. The district also agreed that some girls would be stronger than boys. Consequently, the district failed to prove that the policy substantially related to credible safety concerns.
Additionally, the court rejected the district’s concerns over inappropriate contact and the need to prevent sexual harassment. The district had failed to provide any instances of males inappropriately touching females while wrestling. The court acknowledged that male wrestlers could have inappropriate contact with another male wrestler, and highlighted A.B.’s testimony that she had not experienced any inappropriate touching in the past and that, if it did occur, she would know how to handle it.
Finally, the court rejected the district’s “moral concerns” argument because the district failed to support it with any expert testimony. The court further determined that A.B. had satisfied the other elements required to obtain injunctive relief, emphasizing that A.B. would suffer irreparable harm in her development as a wrestler if the injunction was not issued because there are no other opportunities that provide the same frequency and quality of wrestling.
Seventh Circuit rules that former Chicago teacher did not have a property interest in continued employment with the school district.
Price v. Bd. of Edn. of the city of Chicago, 7th Cir. No. 13-2007 (July 2, 2014).
Williette Price was a tenured teacher with Chicago Public Schools (CPS). She was working in a program to improve the classroom teaching skills of other teachers. In 2010, Price was part of a massive layoff of CPS teachers due to economic issues. The board authorized the district’s CEO to honorably discharge 1,289 teachers. Price contended that during the layoffs, the board continued to hire new teachers to fill vacant positions, which included individuals with no prior experience in the classroom. Additionally, Price alleged she was not considered for the vacant positions or given notice of any open vacant positions. Price filed a lawsuit alleging a violation of her due process rights. The trial court ruled that Price did not identify a protected property interest. Price appealed.
On appeal, Price argued that the trial court should not have dismissed her complaint because the board violated the Due Process Clause of the Constitution by laying her off as well as similarly situated tenured teachers without considering them for open positions for which they were qualified.
The Seventh Circuit ruled that Price was required to identify a source, independent of the Due Process Clause, that provided her with the protectable property interest that she claimed to have. The Illinois legislature removed statutory references to “reserve teachers” when dealing with layoffs and recalls, which reflects the legislative intent to change the statutory rights of tenured teachers. By removing this language, the Illinois legislature gave the board the authority to implement its own layoff procedures.
However, Price believed that her property interest lay in her right to fill any vacant position before being laid off. The court of appeals determined that if Price’s claim had arisen before the legislature amended the statutory language, then she may have had a claim. In this case, tenured teachers no longer have a property interest in their jobs that allows them to fill a vacancy in the district before being laid off.
The court of appeals ruled that Price did not have a property interest. Price did not meet the burden of identifying a “statute, regulation, municipal ordinance, or an express or implied contract that secures certain benefits and support claims of entitlement.”
Second Circuit holds IDEA’s least restrictive environment preference is a factor but not determinative in parent’s tuition reimbursement claim.
C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 (2d Cir.2014).
C.L. suffers from attention deficit hyperactivity disorder (ADHD), nonverbal learning disability, and executive function weakness. He attended public school in New York from kindergarten through third grade. During this time, the school provided C.L. with a 504 plan. After C.L. began third grade, his parents requested that the district evaluate C.L. to determine whether he was entitled to an IEP under the IDEA. The district concluded that he was not disabled under the IDEA and therefore not entitled to an IEP. However, the district modified its 504 plan based on its review of C.L. At the end of the year, C.L.’s parents informed the district that they were withdrawing C.L. from the district and enrolling him in a private school. The parents requested a due process hearing seeking reimbursement for the tuition costs of the private school.
The independent hearing officer (IHO) determined that the district should have classified C.L. as disabled under the IDEA and provided him with an IEP. The IHO ruled that by failing to provide an IEP, the district denied C.L. a free and appropriate public education (FAPE) and awarded the parents tuition reimbursement. The district appealed.
On appeal, the state review officer overruled the IHO’s decision, concluding that the private school was not an appropriate placement for C.L. because it didn’t satisfy the IDEA provision that a student be placed in the least restrictive environment. The parents filed suit in federal district court, seeking to reinstate the IHO’s decision. They also raised a 504 claim, alleging that the district discriminated against C.L. because of his disabilities. The district court determined that the state review officer’s decision was entitled to deference because there was evidence supporting the conclusion that C.L. made progress at the public school and that he benefited from interaction with his peers. It also found no evidence of bad faith or indifference, as required to establish a 504 claim. As a result, the court granted the district’s motion for summary judgment. The parents appealed.
On appeal, the Second Circuit reversed the district court’s decision in regard to the IDEA tuition reimbursement claim, but affirmed its ruling on the 504 claim. The court held that the issue in this case was whether, and to what extent, the IDEA’s preference for mainstreaming should be taken into account in determining the appropriateness of the parents’ private placement. The panel found that the restrictiveness of the placement is a factor to consider because the “IDEA maintains a ‘strong preference’ for educating disabled children in the least restrictive environment.”
The panel rejected the district’s argument that the parents were not entitled to tuition reimbursement because the private school did not provide the least restrictive environment possible for C.L. The court found that the IDEA’s least restrictive environment requirement “was aimed at preventing schools from segregating [disabled] students from the general student body” and was not intended to restrict a parent’s options.
Eleventh Circuit awards reimbursement to special education student enrolled in in-home educational services after denial of FAPE.
R.L. v. Miami-Dade Cty, Sch. Bd., 757 F.3d 1173 (11th Cir. 2014).
http://media.ca11.uscourts.gov/opinions/pub/files/201214880.pdf
O.L. was a student with multiple disabilities in the Miami-Dade County Public Schools in Florida. Due to his disabilities, O.L. had sensory processing challenges and suffered from sensory overload when there was too much going on in his surrounding environment – for example, when he was in a crowded place with a lot of background noise. In 2006, O.L.’s IEP team met to craft O.L.’s IEP for his transition from middle school to high school. O.L.’s parents made it clear to the board that they strongly favored placing O.L. in a smaller school environment since many of O.L.’s challenges stemmed from exposure to large crowds. They favored placement at a small magnet school in the county. The board rejected this idea and told the parents that O.L. would attend the high school and no other site would be considered.
At the beginning of his freshman year, O.L.’s symptoms became worse. He became anxious, had difficulty sleeping, became more obsessive compulsive and repeatedly vomited. His behavior at home was uncontrollable. O.L.’s parents decided to withdraw O.L. from the high school and enrolled him in a one-on-one instructional program. O.L.’s symptoms improved. The board requested an administrative due process hearing, at which the parents argued that the district predetermined O.L.’s educational placement at the high school without regard for O.L.’s unique needs. The administrative law judge (ALJ) disagreed, concluding that the board’s position that no other site besides the public high school would be considered “does not mean that no other site had been considered.” The ALJ did find, however, that the district violated the IDEA’s substantive requirements because the IEP was not reasonably calculated to provide O.L. with any educational benefit. Due to the significance of the shortcomings of the IEP, the ALJ concluded that the entire educational program deprived O.L. of a FAPE. The ALJ also decided that the board could hypothetically provide O.L. a FAPE at the public high school, assuming it developed an IEP that met O.L.’s unique needs. The parents filed for review of the ALJ decision in district court. The district court disagreed with the ALJ’s conclusion that the public high school could be an appropriate setting, finding that such a large setting could not provide O.L. with an appropriate education. The board appealed.
On appeal, the Eleventh Circuit affirmed the district court’s decision. The court found that the IEP did not and could not meet O.L.’s needs and enable him to access his education. The court awarded reimbursement to the parents for O.L.’s one-on-one instruction since the alternative educational environment overwhelmed O.L. and the one-on-one instruction benefitted O.L. The court found that O.L.’s parents were accorded “no more than after-the-fact, pro-forma participation in crafting O.L.’s IEP” and that “the absolute dismissal of the parents’ views [fell] short of what the IDEA demands from states charged with educating children with special needs.”
Second Circuit rules that extended school year services must satisfy least restrictive environment requirements.
T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145 (2d Cir. 2014).
T.M. is a student with autism whose IEP included an extended school year (ESY) component in order to prevent substantial regression in his development. During the regular school year, T.M.’s placement had been in a mainstream classroom, where he made satisfactory progress. However, in two proposed IEPs, the district’s proposed ESY placement for the summer of 2010 was in a self-contained special education classroom with no non-disabled students. The parents rejected the proposals because they failed to provide T.M. with a free appropriate education in a least restrictive environment (LRE), and requested a due process hearing. The parents filed suit in federal district court following state administrative proceedings, claiming that the district violated its LRE obligations by not offering a mainstreamed ESY program. The district court granted summary judgment in the district’s favor, determining that the ESY program offered by the district did not violate the IDEA’s LRE requirement. The district court conceded that the district had only offered T.M. a special education summer program, not a mainstream program, but found that T.M.’s parents had “not shown that a less-restrictive placement option was available to T.M. but not offered.”
On appeal, the Second Circuit panel vacated the district court’s decision. Case precedent required the court to determine “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and if not, then whether the school has mainstreamed the child to the maximum extent appropriate.” In this case, it was clear that T.M. could succeed in a normal classroom with the use of supplementary aids and services and that there was nothing in the record that demonstrated T.M. would obtain greater educational benefits from a more restrictive setting. Based on the first prong, the panel concluded that the mainstream classroom was the LRE appropriate for T.M.’s educational needs. It concluded that the district’s proposed ESY placement violated the LRE requirement because it placed “T.M. in a more restrictive educational setting for his ESY program than his disability required.”
The district argued that the LRE requirement is different for ESY programs than for regular school programs, and that a district violates it only if a LRE is available and not offered. The district argued that because it did not have a mainstream program available, it was not required to offer a mainstream program. The court rejected this argument, finding that “if a disabled child needs ESY services in order to prevent substantial regression, that child’s ESY placement is an integral part of his or her twelve-month educational program.” The court found that a district that did not have mainstream summer programs could meet its LRE obligation by placing the student in a private program or in a program operated by another public entity.
The court found that even though the district violated the IDEA, it was not required to reimburse the parents unless the parents could prove that their alternative placement for T.M. at the private school was appropriate and that equitable considerations favored reimbursement. The panel remanded the case to the district court to address these two issues.
Ohio court finds district liable when student is hit by a car after ignoring bus driver’s instructions to cross the street.
Sallee v. Watts, 2014-Ohio-717.
https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2014/2014-ohio-717.pdf
A bus driver with the Three Rivers Local School District dropped Amber Sallee, a first grader, off at her designated stop. Instead of crossing the street to her residence, Sallee lingered at the stop with another student. Sallee and the other student then ran down the street. The bus driver attempted to get Sallee’s attention by honking the horn, but was unsuccessful. Unable to get Sallee to proceed home, the bus driver called in to inform school officials that Sallee had left with the other student and continued with her route. When the bus was a few blocks away, Sallee attempted to cross the street and was struck by a car. Sallee’s mother filed suit seeking damages for personal injuries she sustained as a result of the accident. The district filed a motion for summary judgment, which was granted by the trial court.
On appeal, the appellate court reversed the decision of the trial court, relying on a statute that prohibits a bus driver from “start[ing] the driver’s bus until after any child…has reached a place of safety on the child’s…residence side of the road.” The court concluded that this was negligence per se, since the bus driver had started driving before the student reached her side of the street. The appellate court remanded the matter to the trial court to determine whether the bus driver’s conduct of leaving the stop, in violation of the statute, caused the student’s injuries.
The court also recognized that its decision put bus drivers in an impossible situation since it essentially forces the driver to remain parked indefinitely with all the other children on the bus, or proceed to take the other children home and violate the statute. The court encouraged the General Assembly to correct the language of the statute to address this issue.
Ohio court of appeals determines that superintendent is immune from liability.
Perkins v. Columbus Bd. of Edn., 2014-Ohio-2783.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2014/2014-ohio-2783.pdf
Allegations arose that the Columbus City School District failed to accurately account for academic performances of students in its schools. It was alleged that the district deliberately submitted inaccurate student attendance data and grades to the Ohio Department of Education (ODE). Marvin Perkins filed a lawsuit on behalf of his minor son, who attended Columbus City Schools. Perkins filed a lawsuit against the board and the superintendent in her official capacity.
Perkins’ complaint proposed a class action seeking monetary damages, declaratory and injunctive relief requiring the superintendent to order Columbus City Schools to report student data in compliance with law. The trial court ruled in favor of the board and the superintendent. Perkins appealed.
RC 2744.02(A)(1) prevents a political subdivision from being held liable for damages in a civil action for injury or loss, “unless the conduct that caused the injury or loss is of a type specifically enumerated in RC 2744.02(B). The exceptions in RC 2744.02(B) did not apply to the case at hand. Under the law, public education is explicitly identified as a governmental function instead of a proprietary function in accordance with RC 2744.01(C)(2)(c). This applies to most school activities and administrative functions of the educational process.
The court of appeals found that Perkins’ complaint did not meet a statutorily-created exception to the general immunity for governmental functions. The trial court correctly ruled in favor of the superintendent. Additionally, the court of appeals ruled that RC 3301.0714(L) outlines the duties of school districts to report student attendance and grades, and ODE’s response when districts fail to comply with those duties. However, it does not provide a private right of action. Therefore, the court of appeals affirmed the trial court’s ruling.
Ohio court determines that applicant did not satisfy the rehabilitation criteria to receive a pupil-activity permit.
Anguiano v. Ohio Dept. of Edn., 2014-Ohio-2810.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2014/2014-ohio-2810.pdf
The Ohio Department of Education (ODE) initiated a disciplinary action against Santiago Anguiano’s credentials after receiving allegations that he may have engaged in conduct unbecoming to the teaching profession. The State Board of Education informed Anguiano that it was going to determine whether to deny his application for a three-year pupil activity permit. Anguiano was entitled to a hearing, but he had to request it. If he did not request the hearing, the State Board could make its decision in Anguiano’s absence. The reasons for possible denial of Anguiano’s license were due to multiple criminal convictions, including a felony level of driving under the influence and domestic violence.
Anguiano did not request a hearing, and ODE’s Director of the Office of Professional Conduct recommended that the State Board adopt a resolution denying Anguiano’s pupil-activity permit application, as well as ordering that he be permanently ineligible to apply for any license that is issued by the State Board. The rationale was that he was not eligible to receive a license because he could not meet the rehabilitation criteria established in OAC 3301-20-01 since he was convicted of both a felony offense and a violent offense. The State Board approved the recommendation. Anguiano appealed and argued that he had been rehabilitated, since the offenses occurred a long time ago. The trial court reversed and vacated the State Board’s decision. The State Board appealed.
The court of appeals determined that Anguiano could not satisfy the rehabilitation criteria set forth in the rule because in separate actions he was convicted of felony driving while under the influence and an offense of domestic violence. Although Anguiano appeared to have become “a productive, concerned citizen,” he could not satisfy the repeat-offender criteria. Additionally, the court of appeals found that the trial court incorrectly vacated the State Board’s decision because the court did not recognize that Anguiano could not satisfy the rehabilitation criteria. As a result, the trial court’s decision was reversed, and the State Board’s decision was reinstated.
New York school board’s rule prohibiting outside groups from holding worship services in school facilities does not violate the First Amendment’s Free Exercise Clause.
Bronx Household of Faith v. Bd. of Edn., 750 F.3d 184 (2d Cir.2014).
The New York City Board of Education issued a “use of facilities” regulation that provided that “no permit shall be granted for the purpose of holding religious worship services, or otherwise using a school as a house of worship.” The district court determined that the regulation violated the Free Exercise Clause and the Establishment Clause of the First Amendment because the regulation was not neutral on its face and it discriminated between religions fitting a formal religious worship service model and those religions whose worship practices were less structured. The court granted summary judgment in favor of the Bronx Household of Faith (BHF) and issued a permanent injunction allowing BHF to hold Sunday religious services in a New York City public school.
On appeal, the Second Circuit Court of Appeals held that the regulation was constitutional and vacated the lower court’s permanent injunction. The majority found no violation of the Free Exercise Clause since it did not require the board to provide BHF with a subsidized place to hold worship services. While the Free Exercise Clause guarantees the right of individuals to worship without governmental interference, it “has never been understood to require the government to finance a subject’s exercise of religion.” The court concluded that while the government may not place obstacles in the way of the free exercise of religion, it has no corresponding duty to remove those it has not created. The court highlighted that the board was not motivated by the disapproval of a particular religious practice, but rather was concerned that by hosting and subsidizing religious worship services, the board would run the risk of violating the Establishment Clause by appearing to endorse religion.
The majority declined to reach the question of whether the board would violate the Establishment Clause by allowing the subsidized use of the school facilities for religious worship services.
As a result, the court concluded that: “In view of (1) the absence of discriminatory animus on the part of the Board against religion, or against religions that conduct worship services; (2) the…reasonableness of the Board’s concern that offering school facilities for the subsidized conduct of religious worship services would create a substantial risk of incurring a violation of the Establishment Clause claim; and (3) the fact that the Board’s policy (a) leaves all persons and religions free to practice religion without interference as they choose, (b) treats all users, whether religious or secular, in identical fashion, and (c) imposes no burden on any religion, leaving all free to conduct worship services wherever they choose... that [the regulation] does not violate Plaintiffs’ rights to free exercise of religion.”
This case has been appealed to the U.S. Supreme Court which has been asked to determine: (1) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause.
Sixth Circuit upholds expulsion of Michigan student despite allegations of inadequate due process.
C.Y. v. Lakeview Pub. Sch., 557 Fed. Appx. 426 (6th Cir. 2014).
http://www.ca6.uscourts.gov/opinions.pdf/14a0125n-06.pdf
C.Y. was a freshman at Lakeview High School in Michigan. At some point during the year, she had a falling out with another student, A.B. In February 2012, C.Y. tweeted that she was going to stab A.B. Later that day, A.B. reported that C.Y. had brought a knife to school and was threatening to stab A.B. When district administrators attempted to locate C.Y., they learned that C.Y. had left school.
District administrators called C.Y.’s mother, who testified that C.Y. was suspended during the phone conversation, but the administrator testified that she called C.Y.’s mother to schedule a conference and did not suspend C.Y. at that time. A conference was held the next day. In her statement, C.Y. admitted to the tweet and admitted that she threatened A.B. during conversations with two students, but denied bringing a knife to school.
The district sent C.Y.’s mother a letter informing her of its decision that C.Y. should be suspended and advising that C.Y. might be expelled as a result of further proceedings regarding the possession of a knife. A pre-expulsion hearing was conducted, during which C.Y. was shown all of the evidence against her, including the witness statements, and was allowed to question school administrators. At the conclusion of the hearing, the district recommended expelling C.Y. for possession of a knife at school and threatening to use it against another student. The school board held an expulsion hearing. The board refused to allow C.Y.’s brother to attend or read a statement, but allowed C.Y.’s father to read the statement. At the conclusion of the hearing, the board voted to expel C.Y.
C.Y. filed suit in federal district court, alleging that she was denied her constitutional rights to procedural due process at her suspension and expulsion hearings. The district court granted the district summary judgment. C.Y. appealed.
On appeal, the Sixth Circuit Court of Appeals affirmed the lower court’s decision and rejected the numerous allegations that C.Y. raised regarding her due process rights. First, the court rejected C.Y.’s argument that the district had suspended her over the phone. The court found that, even if C.Y.’s version of the phone conversation was accurate, the district had the authority to suspend C.Y. on an emergency basis, given the information possessed by the school at the time. The panel also held that the school’s conference met minimum due process requirements since it told C.Y. what the basis of the accusation was and then provided her with an opportunity to respond.
C.Y. also alleged that she was denied the right to present witnesses because the school board did not permit her brother to attend and speak at the expulsion hearing. The court determined that nothing in the record suggested that preventing her brother from making comments in addition to his written statement increased the risk of an erroneous deprivation of C.Y.’s rights. As a result, denying C.Y. the additional safeguard of allowing her brother to be present at her expulsion hearing and make unspecified comments in addition to his written statement did not violate procedural due process.
C.Y. further alleged that she was not told that she had the right to an attorney. The panel rejected this argument as well, stating “students do not necessarily have a due-process right to an attorney at expulsion hearings, let alone a right to be notified that they are entitled to an attorney.”