School Law Summary 2015-4
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In this issue: Age Discrimination • Americans With Disabilities • Athletics • Board of Tax Appeals • Community Schools • Due Process — Students • Evaluations • Extracurricular Activities • First Amendment — Free Speech • Fourth Amendment • Individuals With Disabilities • Negligence • Political Subdivision Immunity • Sunshine Law • Teacher Termination • School Finance — Vouchers • Sexual Abuse And Harassment • Administrative Law Update
Fifth circuit rules that district’s proffered reasons for not hiring former teacher were “unworthy of credence” under ADEA analysis
Stennett v. Tupelo Pub. School Dist., 5th Cir. No. 13-60783 (July 30, 2015).
http://www.ca5.uscourts.gov/opinions/unpub/13/13-60783.0.pdf
Mary Stennett worked as an educator for 38 years and spent the most recent 20 years working for Tupelo Public School District. She was assigned to the Fillmore Center, an alternative school, as a teacher/assistant principal. In May 2010, the district informed Stennett that they planned to “outsource” operations of the Fillmore Center to a private contractor due to financial issues. The contracts of all employees, including Stennett’s, were not renewed. Stennett applied for several positions for the 2010-2011 school year. The district did not rehire Stennett or any of the four oldest employees, but did rehire several Fillmore Center employees who were substantially younger than Stennett.
After outsourcing its alternative school program for the 2010-2011 school year, the district reclaimed control of the program for the 2011-2012 school year. The alternative school was now called the “Structured Day Program.” The former director of the Fillmore Center was rehired as the director of the alternative school, but Stennett’s former position was not maintained. In June 2011, Stennett applied for seven different available positions with the district and the district filled each position with a person who was substantially younger than Stennett. Stennett filed a lawsuit claiming that the district violated the ADEA when it refused to hire her because of her age for each of the seven positions. The district court granted the district’s motion for summary judgment, stating that Stennett failed to carry her burden of proving that she was “clearly better qualified” than the other applicants and that she therefore “failed to meet her burden of establishing a genuine issue of material fact as to whether [the district’s] proffered reason for failing to hire her is merely pretext.”
On appeal, the Fifth Circuit reversed the district court’s grant of summary judgment and remanded the case for further proceedings. The court concluded that Stennett had presented evidence that would support a jury finding that the district’s proffered reasons for not hiring her were “unworthy of credence.” It stated: “In light of Stennett’s exemplary qualifications, pertinent experience, and excellent performance reviews, a reasonable juror could find it suspect that she would not even be provided the opportunity to interview for the vast majority of the positions.”
Eleventh circuit rules that district violated ADA for failing to provide bus driver with an air-conditioned bus
Hill v. Clayton Cty School Dist., 11th Cir. No. 13-14951 (Aug. 7, 2015).
http://media.ca11.uscourts.gov/opinions/unpub/files/201314951.pdf
Edith Hill was employed by Clayton County School District as a school bus driver. In 2009, Hill was assigned to a bus without air-conditioning. Hill experienced respiratory difficulties, shortness of breath and panting due to the extreme heat. She reported the incident to her supervisors, who informed Hill that the district’s air-conditioned buses had been assigned to more senior drivers. Hill responded that she would drive her morning route, but would not be able to drive the afternoon route because it was too hot. She then filed an “Employee Request for Reasonable Accommodation” form with the district and attached statements from two doctors to her request. Both doctors verified that Hill had difficulty breathing in the heat, but that she could still work as a driver if provided an air-conditioned bus.
The district ultimately denied Hill’s request. However, the letter informing Hill of the denial did not disclose that the district was in the process of acquiring additional air-conditioned buses. Hill declined to return to work. After investigating Hill’s absence, the district terminated her in March 2010. Hill filed suit against the district, raising a claim under the ADA for the district’s failure to accommodate her request for an air-conditioned bus.
The district court granted the district summary judgment on all claims. On appeal, the Eleventh Circuit reversed the lower court as to the ADA claim. The court concluded that Hill had established a prima facie ADA claim because she showed that she was disabled and was subjected to unlawful discrimination because of her disability. The court focused on the fact that “Hill’s doctors reported that her breathing woes were both permanent and chronic” and that “Hill could perform her job with reasonable accommodation.” The court rejected the notion that providing Hill with an air-conditioned bus would constitute an undue hardship to the district. It pointed out that Hill had previously been assigned an air-conditioned bus, so it was difficult to understand how reassignment would “upset the bus-allocation process in such a way as to cause undue hardship.”
Ohio court of appeals renders appeal from injunction, which allowed fifth-year senior to play basketball, moot
Lewis v. Ohio High School Athletic Assn., 2015-Ohio-3459.
http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2015/2015-Ohio-3459.pdf
Ja’Sean Lewis attended Africentric Early College High School in Columbus City School District. In the three years he attended Africentric, he earned 11 credits of 21.5 attempted and had an exceptionally high number of absences and tardies. Prior to the start of the 2013-2014 school year, Lewis and his mother moved into the household of a family residing in the Plain Local School District. The family was awarded temporary custody of Lewis.
Lewis was diagnosed with attention deficit disorder in November 2013. During the first 9-week grading period in Plain Local Schools, Lewis earned the highest grades he had earned to date. Although Lewis had been academically ineligible to play basketball due to his grades at Africentric, based on his improved grades at Plain Local Schools, the school began the process of having Lewis declared eligible. OHSAA declared Lewis eligible in December 2013.
During the 2013-2014 basketball season, Lewis played in 21 of the district’s 25 games. He led the team in rebounds and blocked shots and was fourth on the team in total points. He was 6 feet, 7 inches tall and attracted attention from college recruiters.
Lewis began attending classes in Plain Local schools as a fifth year senior in the 2014-2015 school year. The district determined that, under the OHSAA bylaws, Lewis had exhausted his eight semesters of eligibility for athletic participation prior to the start of the 2014-2015 school year and was not a candidate for waiver of the eight-semester rule as a “child with a disability” because his participation would affect competitive equity in the league. Lewis filed a lawsuit against the district and OHSAA.
An administrative appeals hearing was held in December 2014. The appeals panel found that regardless of whether Lewis was disabled, there was reliable, credible and probative evidence to support the district’s decision that Lewis didn’t qualify for the waiver due to maturing and competitive equity.
The case came before the Stark County Common Pleas Court for a hearing in January 2015. The trial court granted injunctive relief to Lewis and allowed him to play the remainder of the basketball season. The district appealed. On appeal, the court of appeals held that the appeal of a preliminary injunction, which allowed Lewis to play basketball was rendered moot by the fact that the basketball season had ended and Lewis had graduated from high school with no further opportunity for athletic participation. The court also held that the trial court’s judgment entry was not final and appealable since there had not yet been a determination that Lewis was eligible for participation in the 2014-2015 basketball season pursuant to the exception to the eight semester rule.
Ohio Supreme Court holds that the board of tax appeals did not err in adopting property owner’s evidence of property value
Columbus City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, Slip Opinion No. 2015-Ohio-3633.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-3633.pdf
In 2008, the Franklin County Board of Revision (BOR) reduced the value assigned to an office-warehouse in Columbus, Ohio from $2,750,000 to the $1,520,000 advocated in an appraisal that the owner had submitted. The Columbus City Schools Board of Education appealed to the Board of Tax Appeals (BTA), who upheld BOR’s decision.
On appeal, the board argued that the appraiser improperly used a “fully loaded” tax additur instead of one adjusted in light of a tenant’s tax obligations under a triple net lease. A “tax additur” is a component of the capitalization rate that accounts for the negative effect that property taxes have on the value of the property. Second the board faulted the appraisal for using a bottom-line “dollar for dollar” deduction of the cost to the purchaser for necessary repair or replacement of the roof and the HVAC for the building.
The Ohio Supreme Court disagreed with the board’s claim of legal error and affirmed the decision of the BTA. The court found that the appraiser’s use of the tax additur was appropriate, that the appraiser’s “dollar for dollar” deduction of cost to cure deferred-maintenance problems was supported by the record and that BTA was prohibited under case precedent from reinstating the auditor’s valuation when the BOR rejected that valuation based on competent evidence.
Ohio Supreme Court decides White Hat charter school case
Hope Academy Broadway Campus v. White Hat Mgt., LLC., Slip Opinion No. 2015-Ohio-3716.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-3716.pdf
In November 2005, the governing board of 10 community schools in Cleveland signed a contract with White Hat Management to operate and manage their schools. In accordance with Ohio law, the state provided funding to the schools based on the number of students enrolled. Under their contracts, the schools paid either 95% or 96% of those public dollars to White Hat. White Hat also collected all local, state and federal grant money awarded to the schools. With these funds, White Hat ran the schools’ day-to-day operations, including hiring staff and buying furniture, computers and other equipment and supplies. As of the 2010-2011 school year, the Ohio Department of Education (ODE) had closed two of the 10 community schools for academic failure, four schools were on academic watch and one was listed in academic emergency. Given the poor performance, the governing authorities of the schools filed a lawsuit against White Hat.
The Ohio Supreme Court was asked to weigh in on three issues. The first was whether public funds paid to a private entity to operate a community school are subject to public accountability after the entity is paid. In her opinion, Justice Judith Ann Lanzinger stated “the public funds received by a community school from the Department of Education are ‘received or collected’ under color of office. When those funds are transferred directly to an operator, they are also public funds ‘received or collected’ under color of office to the extent that those funds are used to perform a governmental function. While we cannot broadly hold that public funds always retain their status as public funds, a private entity such as White Hat engaged in the business of education is accountable for the manner in which it uses public funds.”
The second issue before the court was whether a private entity acts as a purchasing agent for a community school when it uses public funds to buy personal property to operate the community school. The schools argued that when White Hat used public funds to purchase materials and property for operating their schools, it acted as a purchasing agent for the schools and those purchases were school property, regardless of the name under which the property was titled. In addressing this argument, Justice Lanzinger pointed to language in the contracts between the schools and White Hat that required the property titled in White Hat’s name to transfer to the schools at the end of the contract only if the school bought back the items at a specific rate from White Hat. Justice Lanzinger recognized that “the notion that the schools would knowingly transfer their funds to White Hat for White Hat to purchase the property for itself (and then later require the schools to buy the property back with additional public funds) does not seem supportable but was an agreed-upon term.” In light of the contract language, the court stated the schools would be required to provide additional payment if they wished to obtain the other personal property that White Hat purchased.
The final issue was whether a private entity operating a community school has a fiduciary relationship with the school, and whether the entity must act primarily for the benefit of the school. White Hat claimed that it had no duties as a fiduciary to the schools because the contracts defined its role as an independent contractor. Justice Lanzinger noted that the “parties’ characterization of their relationship in the contracts is not controlling” and held that because White Hat agreed to act on behalf of the schools to help them carry out their purpose, advance the schools’ interests and operate “all functions” of their day-to-day operations, a fiduciary relationship was created.
Sixth Circuit finds Michigan school district and its administrators that confronted and disciplined a student for theft of a district-owned laptop were not liable for the student’s suicide later that night.
Jahn v. Farnsworth, 6th Cir. Case No. 14-1916 (June 29, 2015)
http://www.ca6.uscourts.gov/opinions.pdf/15a0476n-06.pdf
Steven Jacob Jahn (“Jake”) was a senior at Marysville Public School District in Michigan. On March 16, 2012, a teacher in the district noticed his laptop was missing. He reported the laptop missing to the Superintendent and the individual acting as superintendent on the day of the discovery. Upon investigation, the district discovered that the last activity on the computer was 2:58 p.m., and surveillance footage showed Jake was the only student leaving the classroom around that time. Counsel advised district to turn the matter over to the police, but the district decided to “keep this a school issue.”
The high school principal and assistant principal interviewed Jake on March 19, and explained his due process rights. The principal told Jake they had evidence of the incident that included two videotapes and a time-stamp on the computer. Jake asked to see the video evidence, but the principal indicated he could not show it to him because it was not in his office. The video evidence was on a computer in the assistant principal’s office, but the assistant principal did not offer to show Jake the evidence. Jake admitted to taking the laptop, and the administrators called his father. Jake told his father, Steven Jahn (“Jahn”), where to find the laptop, and Jahn promptly brought the machine to school. Jake was immediately suspended for 10 days, and the principal explained he would be recommending a long-term suspension. The administrators told Jahn that Jake was suspended for the remainder of the year and was not permitted on school grounds for commencement, prom, or other school activities. They explained Jake would be permitted to finish his classes from home for full credit and take his AP test for credit.
The assistant principal walked Jake to his car and indicated to Jahn that he should keep an eye on Jake because he thought he needed some support. Later that night, Jahn discovered Jake was not at home and had left his cell phone and keys at home, but had taken a spare key for his car. About 8:30 that night, police informed Jahn that Jake had driven his car into a concrete pillar, and had died in the accident.
Jahn filed a complaint against the school district and the administrators alleging violations of procedural and substantive due process, among other claims. The trial court granted summary judgment in favor of the school district and its administrators. Jahn appealed to the Court of Appeals for the Sixth Circuit.
Jahn argued that the district denied Jake due process because they did not show him the video tapes he requested to see and because it suspended Jake for more than 10 days without a hearing before the board. The Sixth Circuit found that because Jake had an opportunity to rebut the accusation, failure to show him was not a denial of procedural due process. Jake had a right to oral or written notice of the charges, an explanation of the evidence the authorities had, and an opportunity to present his side of the hearing prior to suspension. The court noted that the notice need not be formal, and there was no time period required between notice and the hearing. With regard to the hearing Jahn argued was required before a long-term suspension, court reasoned that because Jake died immediately after the events, any determination regarding what actions the school district would have taken regarding the long-term suspension and whether or not it would have met due process requirements would have been speculative.
Jahn also argued that Jake’s substantive due process rights were denied under the state-created-danger doctrine. The trial court dismissed this claim reasoning that because Jake had taken his own life, the doctrine did not apply. The state-created-danger doctrine applies when three elements are met: “(1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; (2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its actions specifically endangered the plaintiff.” The Sixth Circuit declined to find the state-created-danger doctrine applied to the case at bar because Jake committed suicide off of school grounds several hours after being released to his parents’ custody.
Eleventh circuit rules that Florida’s teacher evaluation laws do not violate teachers’ substantive due process or equal protection rights
Cook v. Bennett, 792 F.3d 1294 (11th Cir. 2015)
http://media.ca11.uscourts.gov/opinions/pub/files/201412506.pdf
In 2011, the Florida legislature enacted the Student Success Act (SSA), which established new requirements for public school teachers’ performance evaluations. The SSA provided that at least 50 percent of a performance evaluation must be based upon data and indicators of student learning growth assessed annually by statewide assessments. It tasked the Florida Commissioner of Education with approving a formula to measure individual student learning growth on the Florida Comprehensive Assessment Test (FCAT).
Seven Florida public school teachers and three local associations that represent teachers brought a lawsuit against three school districts, the Florida Commissioner of Education and other officials from the Florida State Board of Education. The lawsuit alleged that the SSA violated the Fourteenth Amendment’s due process and equal protection clauses.
The district court held that the plaintiffs had standing because they had alleged a concrete risk that they would “make less money in the future that they would have absent the irrational evaluation system authorized by the Act.” However, it granted the defendants’ motion to dismiss the facial challenge to the SAA on the ground that the Florida legislature had a rational basis for enacting the evaluation scheme. The court subsequently granted the defendants summary judgment, holding that the evaluation policies implemented under the SSA similarly were justified by a rational basis.
Florida court rules on gay-straight alliance club’s constitutional argument for school recognition
Carver Middle School Gay-Straight Alliance v. School Bd. of Lake Cty., M.D. Fla. No. CV 13-623 (Aug. 19, 2015).
http://law.justia.com/cases/federal/district-courts/florida/flmdce/5:2013cv00623/292522/75/
In November 2012, a group of students at Carver Middle School submitted an application to the principal of the school seeking recognition of a gay-straight alliance (GSA) club. Although the principal had authority to act on the application, she referred the matter to the “district level.” In late January 2013, the school board began planning a series of meetings for the purpose of drafting and then adopting a new policy governing school-sponsored clubs. Also in January 2013, the ACLU sent a letter to the district calling attention to the fact that the GSA application for school recognition had been submitted in November and that no response had been received.
In May 2013, a lawsuit was filed against the school board to recognize the GSA as an approved club at the middle school. A consent order was entered the day after the lawsuit was filed that required the board to grant official recognition to the GSA as an approved student club for the remainder of the school year. In August 2013, the board adopted a new and revised student club policy that, among other things, limited sponsorship to those organizations whose purpose was to strengthen and promote critical thinking or otherwise related to the middle school curriculum. The district decided that GSA was not an extension of school curriculum and did not promote critical thinking. As a result, they denied the GSA recognition. The GSA argued that the board’s policy was aimed at the GSA for the purpose of excluding it.
The district court ruled that the case was not up for judicial review because the GSA should have submitted an application that better explained how the club would strengthen and promote critical thinking. The court also ruled the case was moot because the GSA did not submit a new application for its proposed club each year.
The ACLU is appealing the decision to the U.S. Court of Appeals for the 11th Circuit.
Third Circuit finds teacher’s firing based on blog postings that included derogatory comments about her students was not retaliation for her exercise of First Amendement rights.
Munroe v. Central Bucks Sch. Dist., 3rd Cir. Case No. 14-3509
http://www2.ca3.uscourts.gov/opinarch/143509p.pdf
Natalie Munroe was hired to teach English in the Central Bucks School District in 2006. She received good performance evaluations and was granted tenure in March 2010. Between August 2009 and November 2010, Munroe posted 84 entries to a blog she maintained. Munroe had nine subscribers, including herself and her husband, for most of the time the blog existed, but the blog was not password protected. She did not expressly identify where she worked or lived, the name of the school she taught, or the names of her students in any of her blog entries.
Most of the blog entries dealt with her personal life, including her children and her yoga classes, but other entries spoke about her co-workers, the district’s administration, her students, and her parents.
In one blog entry, Monroe discussed the grading process, and comments she wanted to put on her students’ report cards. Among the comments she wished she could use were:
- “Seems smarter than she actually is;”
- “Gimme an A.I.R.H.E.A.D. What’s that spell? Your kid!”
- “Frightfully dim.”
- “Dresses like a streetwalker”
- “I didn’t realize one person could have this many problems.”
- “Utterly loathsome in all imaginable ways.”
- “There’s no other way to say this: I hate your kid.”
In another entry, she complained that students were “disobedient, disrespectful oafs. Noisy, crazy, sloppy, lazy LOAFERS…. My students are out of control. They are rude, disengaged, lazy whiners…” Another blog post called teenagers “asses who have no respect for adults, for authority, or for teachers,” and that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats.” Other blog posts addressed honor and academic integrity, as well as her concern about student work ethic. In one post, she referred to her students as “the devil’s spawn.”
In February 2011, a reporter from a local newspaper alerted the school district to the blog. That month, Munroe was placed on an immediate paid suspension. At that time, the district had no policies prohibiting a teacher from blogging about school matters on personal time. As word of the blog’s contents spread to parents and students, administrators in the district “thought we’re going to have a riot or sit-in or worse.” The principal of the school alleged he had to have Munroe escorted from the building for her own safety. In the summer of 2011, more than 200 parents opted their students out of Munroe’s classes. The story of Munroe’s blog was picked up by Huffington Post and national media, and the teacher appeared on ABC, CBS, NBC, CNN, Fox News and other television stations, defending her actions. She also gave interviews to the Associated Press, Reuters and Time Magazine.
Munroe’s June 2011 performance review noted that, through her blog posts, Munroe engaged in “inappropriate or disrespectful interactions between teacher and students” and a lack of knowledge of the professional code of conduct. The district reported Munroe to the Department of Education for violation of the professional code, but the complaint was dismissed for legal insufficiency. Munroe returned to work in August 2011. She received another negative evaluation for the 2011-2012 year, and the district terminated her from employment in June 2012. Munroe sued, alleging the firing was retaliation for exercise of her First Amendment rights. The district court granted summary judgment for the defendants.
On appeal, the Court of Appeals for the Third Circuit affirmed the district court. To succeed in her retaliation claim, Munroe was required to show “(1) [her] speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred.” Munroe failed to clear the first showing.
Under the First Amendment analysis, the appellate court reluctantly assumed that Munroe’s speech was a matter of public concern because it did, minimally, address larger issues like academic integrity, honor and the importance of hard work. In other blog posts, Munroe set forth “what was essentially a personal gripe against management and her supervisors.” The court also found the extensive media coverage of her comments evidence that those comments me the “public concern” requirement. When the court reached the Pickering balancing test, however, it found Munroe’s speech was not protected. Noting that “the job of a public school educator implicates a rather special set of circumstances and responsibilities,” the court found that “[w]hen a teacher’s derogatory comments about his or her students cause numerous persons to tell the school district that they ‘don’t want her as my child’s teacher’ it is appropriate to conclude that his or her speech ‘impedes the performance of the speaker’s duties’ as a teacher.”
Minnesota student has valid claim under First Amendment after discipline for off-campus online comment about teacher
Sagehorn v. Indep. School Dist. No. 728, D. Minn. No. CV 14-1930 (Aug. 11, 2015).
http://law.justia.com/cases/federal/district-courts/minnesota/mndce/0:2014cv01930/139548/64/
Reid Sagehorn was a senior at Rogers High School in Minnesota. In January 2014, someone anonymously posted on a website titled “Roger confessions” the following: “did @R_Sagehorn3 actually make out with [name of female teacher at Rogers High School.]” In response, Sagehorn posted “actually yes,” which he intended to be taken in jest. The post was made the same day, outside of school hours and not on school grounds.
Approximately two weeks later, a parent contacted the district to express concerns about the postings. In February, the principal asked Sagehorn about the website and his post. Sagehorn told them that he authored the post, that the post was meant to be sarcastic and that he did not intend for anyone to believe the post to be true. The district suspended Sagehorn for five school days for “damaging a teacher’s reputation.” The district later extended Sagehorn’s suspension for another five days and recommended expulsion through the end of April. Sagehorn filed suit in federal court in June 2014, alleging that the district violated his First Amendment free speech rights.
The district court determined that even if it found that Sagehorn’s post “unambiguously referred to sexual intercourse, the content actually attributable to Sagehorn – a response of ‘actually yes’ – is not nearly as graphic as the content courts have found obscene as a matter of law.” The court concluded that Sagehorn’s post was not obscene within the bounds of contemporary community standards and therefore protected by the First Amendment.
The district court also found no indication that Sagehorn’s post caused any disruption to the school environment, nor did they find that Sagehorn’s speech was expressly directed at the school merely because it related to an individual at the school. As a result, the court ruled that Sagehorn had a valid claim for violation of his First Amendment free speech rights against the district based on the officials disciplining him for his online comment.
Florida court rules individual failed to state valid free speech claim after board interrupted comments during board meeting
Seegmiller v. School Bd. of Collier Cty., M.D. Fla. No. CV 15-87 (June 8, 2015).
http://law.justia.com/cases/federal/district-courts/florida/flmdce/2:2015cv00087/307065/24/
Cory Seegmiller, a resident of Collier County, Florida, attended a school board meeting in January 2015 to address the board for allegedly misusing their power and permitting parents to choose the district’s curriculum and textbooks. The district provided Seegmiller with three minutes to speak at the meeting. However, the board president and board attorney “repeatedly and frequently” interrupted Seegmiller, objecting to his personal attacks against board members and instructing him to keep his discourse to substantive issues. Because of the interruptions, Seegmiller believed he was denied a reasonable opportunity to express himself on matters of community interest and filed suit against the district.
The district court granted the district’s motion to dismiss. The court refused to find that the board’s policy was a deliberate indifferent to this First Amendment rights or that the policy motivated the alleged infringement on his free speech rights. The court found that Seegmiller had failed to plead that he was treated differently from any other similarly situated individuals.
Illinois court finds principal is not entitled to qualified immunity where her search of a student for drug paraphernalia exceeded the bounds of reasonableness.
Doe v. Champaign Community Unit 4 Sch. Dist., C.D.Ill. Civil No. 11-3355 (May 29, 2015)
Rhonda Howard was a principal at the Academic Academy. On the morning of January 21, 2011, she was informed by a staff member that there was a strong marijuana odor present outside a classroom. The principal entered the classroom, but did not find the source of the smell. She searched other areas in the school for the smell, then returned to the classroom 15-30 minutes later. She smelled a strong marijuana smell by the door, and alleges that after walking around the room, determined the source of the smell was a student’s coat. The principal stated that she observed D.M., the student who owned the coat, laughing and giggling, and that he had droopy, puffy, and red eyes, and based on these observations, asked the student to accompany her to the office. D.M. and his parents disputed that D.M.’s coat smelled like marijuana, that the principal walked around the room before pulling D.M. out of class, and stated that to the extent D.M.’s eyes may have been puffy or droopy, it was due to sleep and because he had just woken up.
Once in the office, D.M. stated that he did not smoke marijuana, and that he was not high. The principal searched the coat and D.M.’s backpack, and had the student empty out his pockets. The principal asked D.M. to remove his shoes, roll down his socks, and pull up his pant legs. The parties’ accounts of the search differed at this point: the student alleges the principal had him unbuckle his belt and roll down the top of his jeans so that the top of his underwear was exposed, and take off his shirt. The principal states she only had the student raise his shirt so she could see his waistline, and disputes that she had him roll down the top of his jeans. The search yielded no contraband.
On September 20, 2011, D.M.’s parents filed a §1983 claim against the principal, alleging, among other things, that she had violated D.M.’s fourth amendment rights. The defendants moved for summary judgment on the claim, arguing the principal had qualified immunity.
The Central District of Illinois found that, viewing the facts in the light most favorable to the plaintiffs, a jury could find that the principal’s search violated D.M.’s constitutional rights. The court reasoned a jury could have found that the principal did not have reasonable suspicion, because the only evidence the principal had for the search under the plaintiff’s version of events was that D.M.’s eyes may have been puffy or droopy.
Relying on New Jersey v. T.L.O., 469 U.S. 325, and its progeny, the court found that under the plaintiff’s version of events, the principal had very little reason to suspect marijuana use. Even using the primary reason for the principal’s search in her version of events – the alleged smell of marijuana on D.M.’s coat – was not sufficient to justify a partial strip search of the student.
The court then held that because the rights that the principal may have violated were clearly established in law, the principal was not entitled to qualified immunity. The T.L.O. case had been decided in 1985, and a subsequent seminal case on strip searches of students had been decided in 2009. Further, the board had provided training on searches of students, including a “detailed pamphlet explaining the state of the law regarding school searches, and an assistant superintendent went over those rules with Principal Howard.”
Fifth Circuit finds school officials entitled to qualified immunity for accessing a student’s Facebook account in 2007.
Jackson v. Ladner, 5th Cir. No. 13-60631 (September 15, 2015)
http://www.ca5.uscourts.gov/opinions/unpub/13/13-60631.0.pdf
M.J. was a student and a member of the cheer squad at Pearl High School in 2007. In September 2007, M.J. had a verbal altercation with K.E., the captain of the cheer squad, at a school-sponsored event, and the altercation continued on the bus ride home. K.E. complained to Tammie Hill, the cheer squad sponsor, that M.J. had made threats on social media after the altercation. Hill then spoke to the entire squad about the dangers of communicating on Facebook, which included bullying, inappropriate photos, predators, and other risks to students. She then requested that squad members provided her with their Facebook usernames and passwords so she could inspect their accounts. M.J. was suspended from the cheer squad after Hill’s investigation for her comments made to K.E. on Facebook.
In June 2009, M.J.’s parents filed suit against Hill and other district officials alleging that M.J.’s rights to free speech under the First Amendment were violated, as were her rights against an unreasonable search under the Fourth Amendment. In analyzing the claims, the court assumed that M.J. did not consent to the search of her Facebook page and that her suspension from the cheer squad was the result of her statements on Facebook.
The district court denied qualified immunity for Hill, on the basis that M.J.’s rights were “clearly established in law.” The district court issued its decision and an oral explanation on a telephone conference. Defendants then appealed to the Fifth Circuit. The Fifth Circuit reversed the district court, finding that in 2007, no precedent existed that indicated Hill’s actions were a violation of Constitutional rights.
With respect to the Fourth Amendment, the court held that at the time that Hill conducted her search of M.J.’s Facebook page, the established law on student searches was New Jersey v. T.L.O., 469 U.S. 325, which required a search be justified at its inception and permissible in its scope. The court found that both of these were present because Hill was searching “electronic communications pertaining to school activities based on a reasonable believe that those communications were a continuation of a quarrel that began during a school-related activity.” It was not until 2009, when the U.S. Supreme Court held a strip search of a 13-year old student for prescription and over-the-counter medications to be a violation of Fourth Amendment rights, that the jurisprudence was established that could provide Hill a “fair warning” that her actions might be problematic. While the Fifth Circuit declined to consider whether Hill’s actions did, indeed, violate M.J.’s Fourth Amendment rights, it found Hill was entitled to qualified immunity on the Fourth Amendment claims.
The court found the same was the case with respect to M.J.’s First Amendment claims. The precedent at the time had established that a school suspension for off-campus speech unrelated to school activities was a violation of the First Amendment, there was no precedent that indicated that suspension from an extra-curricular activity for off-campus speech on an issue that arose during the course of that extra-curricular activity would be a violation of M.J.’s First Amendment rights. The court extended Hill qualified immunity on the claim, and declined to express an opinion as to the validity of Hill’s actions.
Third Circuit finds that the 2-year limitation language in 20 USCS § 1415(b)(6)(B) does not operate to limit a plaintiff’s recovery for damages to two years prior to discovery of the injury.
G.L. v. Ligonier Valley Sch. Dist., 3rd Cir. No. 14-1387 (September 22, 2015)
http://www2.ca3.uscourts.gov/opinarch/141387p.pdf
G.L. entered high school in the Ligonier Valley School District in fall of 2008. Early that fall, one of G.L.’s teachers told the student’s father that G.L. seemed distracted in class and lacked organizational skills. The father then orally requested that G.L. be evaluated for any special education needs. No evaluation was conducted. G.L. intercepted and altered his report card for most of 2008-09 and managed to hide his struggles from his parents for most of the year, but at the end of the year, the district informed the parents that G.L. needed to repeat 9th grade. The parents also found out that G.L. was being bullied about his sexual orientation at that time. The parents again requested an evaluation for special education needs, orally and in writing.
In fall 2009, after the parents engaged an attorney, the school district conducted a special needs evaluation that revealed G.L. had learning disabilities in math, reading, and writing. The district put a plan to prevent bullying in place, and offered an IEP to G.L.’s parents in November 2009. The parents disagreed with the plan, and despite multiple meetings, the parents and district could not come to agreement on a plan for G.L.
By January 2010, bullying had grown to include district staff, and G.L. refused to return to school after an incident involving a coach at the district. His parents picked up and returned his school work, which G.L. completed at home. In March 2010, G.L. was diagnosed with additional disabilities, including post-traumatic stress disorder from the bullying he had suffered. On March 8, 2010, the parents withdrew G.L. from the school. The parties did not dispute that March 9, 2010 is the date the parents “knew or should have known” about the deprivation of a FAPE to G.L. (the “injury discovery date”).
On January 9, 2012, G.L.’s parents filed a due process complaint requesting compensatory education for September 2008 through March 2010, the entire period they alleged G.L. was denied a FAPE before withdrawing from the school. The hearing officer found that the filing was timely under 20 USCS § 1415(f)(3)(C) because the parents had filed within two years of the injury discovery date, but concluded that due to the language of 20 USCS § 1415(b)(6)(B), G.L.’s remedy was limited to only the two years immediately preceding the filing of the complaint. Because G.L. was home for the three months from January 2010 to March 2010, then withdrew from the district, the hearing officer found G.L. was not injured during that period and denied any compensatory reward.
The district court disagreed, remanding the case because it found that damages could be awarded from two years before the injury discovery date through the date the complaint was filed, effectively creating a four-year window for damages. The school district filed an interlocutory appeal.
After a thorough review of the statutory scheme, legislative history, U.S. Department of Educations rules and interpretations, and judicial precedents involving IDEA and its amendments, the Third Circuit concluded that “§ 1415(b)(6)(B) was intended to reflect the same statute of limitations set forth in § 1415(f)(3)(C).” Such a reading was necessary because when a school district has failed in the responsibility to provide a FAPE, and “parents have taken the appropriate and timely action under the IDEA, then that child is entitled to be made whole with nothing less than a ‘complete’ remedy.” Thus, the parents' claims prior to March 2010 were not time-barred.
Ohio court reverses summary judgment granted to school district after student is injured by classroom door
[A-M.R.] v. Columbus City School Dist., 10th Dist. No. 14AP-1066, 2015-Ohio-3781.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2015/2015-Ohio-3781.pdf
In 2008, students of Columbus Public Schools vacated an old elementary school in favor of a newly completed elementary school. In 2010, the old elementary school reopened and was used as a temporary or “swing” space for elementary school students. In May 2012, O.R., a fifth-grade student who was assigned to the old building, asked her teacher to be excused so she could refill her water bottle. As O.R. stepped into the door’s threshold, a gust of wind caught the door and slammed it violently on her. O.R. reflexively raised her hand in front of her face to avoid being struck by the door. The door hit her upraised hand and a large pane of glass in the top half of the door shattered. The breaking glass sliced her wrist, causing damage to tendons and embedding fragments of glass into her wounds.
In March 2013, O.R.’s parent sued the district for damages concerning the incident. The parent argued that the district violated Ohio Building Code and should have used safety glass in the door and not “ordinary window glass.” The district moved for summary judgment arguing that the parent had no way of proving negligence by an employee. The trial court found that there was an issue of fact to prevent a ruling that no employee of the district was negligent. However, the trial court still granted summary judgment to the district on the ground that there was “absolutely no evidence before the court to show that the pane of glass was actually defective.”
On appeal, O.R.’s parent argued that the trial court incorrectly concluded that the district was entitled to immunity because no evidence of a defect was presented. The court of appeals agreed, finding that the trial court failed to consider the evidence submitted by O.R.’s parent, including O.R.’s testimony about the type of glass that wounded her. The court found that the trial court erred when it determined that there was no evidence of a defect without considering the evidence before it or providing a valid justification for failing to consider that evidence. As a result, the court reversed the trial court’s decision on summary judgment.
POLITICAL SUBDIVISION IMMUNITY
Ohio’s Eighth District finds a school district was not entitled summary judgment based on political subdivision immunity in a lawsuit for a student’s drowning death where genuine issues of fact existed regarding potential negligence of district staff and physical defects in facilities.
Kerber v. Village of Cuyahoga Heights, 8th Dist. No. 102419, 2015-Ohio-2766
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2015/2015-Ohio-2766.pdf
On March 7, 2012, Daniel Papcke was swimming laps in the Cuyahoga Heights High School pool. Two of the district’s employees were on duty as lifeguards: a high school student that was employed by the district and Cynthia Lusk, the pool manager. Papcke was one of many swimmers in the pool, including a troop of 15-20 boy scouts testing for their merit badges. The student lifeguard was guarding the shallow end of the pool from a low deck chair at the shallow end of the pool, while Lusk was responsible for monitoring the deep end of the pool.
At the time of the incident, Lusk was engaged in conversation with a patron lasting 13 minutes, and she was guarding from a bench several feet away from the pool’s edge. The father of one of the boy scouts alerted the student lifeguard that Papcke was in distress. The student lifeguard could not see Papcke from her post, and had to stand to see him. He was face down in the water, and when she reached him, he was blue. The student had to return to poolside to get the rescue mask, but pulled Papcke from the water. Lusk admitted she did not know why the student lifeguard had gone into the pool and was not aware of Papcke’s distress until the student lifeguard reached him in the pool. The student lifeguard and Lusk performed CPR on Papcke until the paramedics arrived. He was transported to the hospital, where he died three days later. The cause of death was multisystem organ failure due to near drowning.
Papke’s estate sued the district and the lifeguards, and the district moved for summary judgment based on political subdivision immunity. The trial court denied the motion, finding the district was not necessarily entitled to political subdivision immunity. Under R.C. 2744.02(B), a political subdivision is “liable for injury, death, or loss to a person that is caused by the negligence of their employees and that occurs on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with a governmental function…” Because there was a genuine issue of material fact regarding whether Papcke’s death was caused by the “negligence of the lifeguards” and “due to physical defects within the pool grounds,” it was not appropriate to grant summary judgment.
On appeal, the Eighth District Court of Appeals affirmed the trial court. The appellate court noted that the parties did not dispute the building was used in connection with a government function, and that the other two elements under R.C. 2744.02(B) could be found to be present by a jury. With respect to the first element, negligence of an employee, the Eighth District reasoned that a jury could find the student lifeguard was negligent because she did not know how long Papcke had been swimming or in the water, and she never saw him in distress until she was alerted by a bystander, though it was her responsibility to scan the full pool repeatedly during her shift. The court indicated a jury could determine Lusk had been negligent because she did not know where Papcke had been for at least 15 minutes before being distressed, only saw him once she saw the student lifeguard enter the pool, and she was engaged in a prolonged conversation with a patron when she should have been scanning the pool and lifeguards were not supposed to engage in conversations with patrons longer than 5 minutes.
The student lifeguard’s inability to see Papcke from the low deck chair was potentially a physical defect at the pool under R.C. 2744.02(B), the court reasoned. An aquatic safety consultant opined that the low deck chair was “ineffective and reduced the line of sight and observation ability of the on duty lifeguards,” contributing to the delay in responding to Papcke’s rescue.
Ohio Supreme Court holds that an employee may only prohibit a public body from holding an executive session when the employee is statutorily entitled to a public hearing
Stewart v. Lockland School Dist. Bd. of Edn., Slip Opinion No. 2015-Ohio-3839.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-3839.pdf
The Ohio Department of Education notified the Lockland school district that several district employees falsely reported student-attendance data in order to improve their state report card for the 2010-2011 school year. Adam Stewart served as a data coordinator for the district and, after the district’s internal investigation, Stewart was implicated as an individual who altered data.
During its August 2012 board meeting, the board provided Stewart with a due process hearing that was held in open session. Once the hearing was complete, the board went into executive session over the objection of Stewart’s attorneys. After the holding its deliberations in executive session, the board went back into open session. Subsequently, the board passed a resolution in open session to terminate Stewart’s employment contract pursuant to RC 3319.081.
Stewart filed an action in the Hamilton County Court of Common Pleas alleging that the board violated Ohio’s Open Meetings Act. However, the magistrate for the trial court granted the board’s motion for summary judgment. Stewart appealed to the First District Court of Appeals, which upheld the trial court’s decision. The court of appeals held that “Loudermill sought to provide persons who possessed a property interest in continued employment with the basic due-process protections of notice and an opportunity to be heard prior to termination of employment. However, the Loudermill court did not accord those persons the right to require that the entire pretermination hearing be held in the public.” As a result, Stewart could not rely on his entitlement to a Loudermill pretermination hearing to prevent the board from entering into executive session.
Stewart then appealed to the Ohio Supreme Court and argued that he was entitled to a public hearing. The Ohio Supreme Court affirmed the decision of the court of appeals. It found that RC 3319.081 does not entitle Stewart to have his “entire pretermination hearing held in public.” The court determined that as long as the school district followed the requirements of due process, it was not required to have an elaborate hearing or have it held in public. In this case, as noted by the court, Stewart did receive due process, and he had notice of the board’s special meeting regarding his employment. In addition, Stewart had an opportunity to be heard at the meeting. As a result, the Ohio Supreme Court ruled that Stewart was not entitled to a public hearing.
Ohio court holds that scope of teacher investigation is not limited to the specific incidents stated in RC 3319.16 notice, so long as teacher afforded due process protections
Speller v. Toledo Pub. Schools Bd. of Edn., 2015-Ohio-2672.
http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2015/2015-Ohio-2672.pdf
Toledo Public Schools employed Sandra Meeks Speller for 17 years as a math teacher and a high school facilities coordinator. Beginning with the 2008-09 school year, Speller was transferred to the position of middle school principal. She was acting principal for a short period of time until Chad Henderly was appointed principal and Speller assumed her assistant principal position.
In May 2010, Henderly wrote a letter to his supervisor detailing his problems with Speller’s job performance including allegations of insubordination, failure to perform job duties, due process violations (relating to her handling of student discipline matters) and unprofessional conduct. Speller was transferred to the assistant principal position at a district elementary school. After the principal there also raised issues with Speller’s performance, a disciplinary hearing was held and the hearing officer recommended Speller’s termination.
Speller appealed. On appeal, the ODE referee suggested that Henderly’s increasingly negative evaluations indicated that he was part of the “all-white male administrative hierarchy” and that he had “poisoned the well” regarding Speller’s transfer the elementary school. The referee concluded that the board had failed to meet its burden proving Speller was guilty of the conduct of which she was accused and recommended that she not be terminated. The board rejected the referee’s recommendation and terminated Speller. Speller appealed to the court of common pleas, which found that the board presented “substantial and credible evidence” to support its charges against Speller and affirmed the termination order. Speller appealed.
On appeal, the court found no instances were the board relied upon evidence that was not before the referee during the course of the hearing. The court refused to accept Speller’s argument that the scope of the investigation must be limited to the specific incidents contained in the “RC 3319.16 notice.” That statute requires boards to provide a teacher with a written notice of its intention to consider the termination of the teacher’s contract with “full specification” of the grounds for such consideration. While the term “full specification” is not defined in the statute, it has been found that evidence of other instances of alleged misconduct which are “interrelated” to the grounds stated in the notice are permissible at the hearing. The court found that Speller was fully apprised of the claims against her and was afforded due process protections. As a result, the court found that the trial court did not abuse its discretion in affirming the board’s decision to terminate Speller.
North Carolina Supreme Court rules that state’s private school voucher program is constitutional
Hart v. State., 774 S.E.2d 281 (N.C.2015)
http://cases.justia.com/north-carolina/supreme-court/2015-372a14.pdf?ts=1437681817
Two separate suits were filed challenging North Carolina’s Opportunity Scholarship Program (OSP), which allows a small number of lower-income families to receive scholarship (vouchers) from the state of North Carolina to attend private school. Both suits alleged that the OSP violated the North Carolina Constitution. The trial court entered an order allowing the plaintiffs’ motion for summary judgment on all claims and declared the OSP unconstitutional on its face. The trial court permanently enjoined implementation of the OSP legislation, including the disbursement of public funds. Defendants appealed and the Supreme Court, on its own initiative, certified the appeal for immediate review prior to a determination in the Court of Appeals.
On appeal, the court reversed the trial court’s order and dissolved the injunction preventing further implementation and enforcement of the challenged legislation. The court began its analysis by addressing whether the state constitution prohibited the legislature from appropriately tax revenue to the OSP. The majority held that because OSP was funded from general revenues and not from sources of funding reserved for public schools, the plaintiffs were not entitled to relief. The court also stated that the plaintiffs had inaccurately characterized OSP as “an alternative system of publicly funded private schools.” The majority emphasized that, instead, the legislation creating the OSP “provides modest scholarships to lower-income students for use at nonpublic schools of their choice.” The court held that the uniformity clause in the state constitution applied exclusively to the public school system and did not prohibit the General Assembly from funding educational initiatives outside of that system.
The court also rejected the plaintiffs’ argument that the funds were being used for a private rather than public purpose. The court held that because the scholarships were available only to families of modest means, they inured to the benefit of eligible students in the first place and to the designated nonpublic schools in the second place. As a result, the court for that “the ultimate beneficiary of providing these children additional educational opportunities is our collective citizenry.”
Eleventh circuit reverses summary judgment for district in middle school sexual harassment sting operation
Hill v. Cundiff, 11th Cir. No. 14-12481 and 13-15444 (Aug. 12, 2015).
http://media.ca11.uscourts.gov/opinions/pub/files/201412481.pdf
In January 2010, Jane Doe, an eighth grade student at an Alabama middle school, was allegedly raped in the bathroom at school during a sting operation authorized by school officials. The sting operation was designed to catch another student in the act of sexual harassment.
At the time of the incident, the district adhered to the board’s policy on sexual harassment, which directed school officials to forward harassment complaints from students to the principal. The principal crafted a “catch in the act” policy on sexual harassment, which required that a student either be caught performing a sexual act, demonstrate physical evidence of sexual harassment or admit that the act had occurred in order for disciplinary action to be taken. This policy prompted the district to conduct a sting operation designed to catch a male student who had allegedly been propositioning Doe and other female students to have sex in the bathroom. The student-suspect had a disciplinary history of violence and sexual misconduct. Doe consented to the sting operation. However, a disputed chain of events led to her alleged rape, rather than the student being caught in the act of sexual harassment.
Doe filed a complaint against the board and school officials, claiming a violation of Title IX. The district court granted the district’s motion for summary judgment because the sexual misconduct and violent behavior did not constitute sexual harassment so severe that it was depriving female students of educational opportunities. Doe appealed. On appeal, the court of appeals reversed the district court’s grant of summary judgment to the board. The court held that the standard for student-on-student sexual harassment claims is higher than a teacher-on-student claim and requires the plaintiff to prove that the district had actual knowledge of sexual harassment that was severe, pervasive and objectively offensive. The court held that while the district court applied the correct standard, Doe satisfied all five elements necessary to create a genuine dispute of fact on her Title IX claim. The court also found that none of the administrators were entitled to qualified immunity since a reasonable jury could find their actions constituted “deliberate indifference” to Doe’s rape, therefore violating Doe’s constitutional right to equal protection.
ODE finds students with disability were denied special education services at juvenile detention center.
http://www.edresourcesohio.org/complaint-findings/
In March, the American Civil Liberties Union of Ohio (ACLU) filed a class action administrative complaint with the Ohio Department of Education’s (ODE) Office of Exceptional Children, alleging that students housed at the Cuyahoga County Juvenile Detention Center were denied their right to a free and appropriate public education. In its complaint, the ACLU alleged the juvenile detention center failed to provide special education services to students, despite legal requirements that transferring students receive services comparable to those in an existing individualized education program (IEP) or be issued a new IEP.
In late July, ODE found that students with disabilities were denied special education services at the juvenile detention center and issued findings letters to 14 districts outlining corrective actions for them to take and ordering them to provide compensatory education for students denied appropriate education. OEC will monitor the implementation of the corrective actions and audit the districts’ special education services to detained students through May 31, 2016.