School Law Summary 2016-2
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In this issue: Academic Distress Commission • Child Abuse • Collective Bargaining • First Amendment • FMLA • Liability • Nonteaching Employee – Contract • Religion • Retroactivity • Sunshine Law • Taxation • Termination • Title IX • Teacher – Termination
Ohio Court of Appeals finds that board president’s appointment to academic distress commission does not meet the common definition of the word “teacher.”
Youngstown Edn. Assn. v. Kimble, 2016-Ohio-1481.
http://www.supremecourt.ohio.gov/rod/docs/pdf/7/2016/2016-Ohio-1481.pdf
RC 3302.10 establishes an academic distress commission of five members, one of who must be appointed by the president of the district board of education. Pursuant to the statute, the board president’s appointee must be a “teacher employed by the school district.” In December 2015, the Youngstown Education Association (YEA) filed an action against the board president Brenda Kimble of the Youngstown City School District, seeking to prevent Kimble from appointing Dr. Carol Staten to the Youngstown Academic Distress Commission. Staten served as a utility substitute principal for the district. The matter was referred to a magistrate, who issued a ruling preventing Kimble from appointing Staten or any other person who was not a teacher and ordering her to make her appointment within 48 hours. Kimble filed objections to the magistrate’s decision.
After a hearing, the court ruled that RC 3302.10 did not specifically define the word “teacher” but did require Kimble to appoint a teacher employed by the school district to the academic distress commission. The court gave the word “teacher” its common and ordinary meaning as someone whose occupation is teaching, especially children. The court determined that RC 3302.10 did not include administrators such as a principal, vice principal, guidance counselor, or substitute. Kimble appealed.
On appeal, the court of appeals confirmed the decision of the trial court with respect to the definition of “teacher” as used in the statute. The court found that Kimble’s appointee to the commission did not fall within that definition and the YEA was entitled to injunctive relief prohibiting the president from appointing a non-teacher to the commission.
Ohio Court of Appeals finds that a “board of education” cannot be held liable for its failure to report child abuse.
Thompson v. Buckeye Joint Vocational School Dist., 2016-Ohio-2804.
http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2016/2016-Ohio-2804.pdf
JT was a student enrolled in a landscaping course taught by John Davis. After JT was harassed, tormented and threatened by another student in the class, JT’s parents met with Davis to express their concerns. Davis told them he would monitor the situation and ensure JT’s safety. Davis took no further action.
In April 2013, Davis transported students to his private residence and instructed them to landscape his yard, lawn and curtilage. Davis left the students unattended for a significant period of time. During this time, a student attacked, battered and physically assaulted JT, fracturing his skull and resulting in permanent injuries and damages.
JT’s parents filed a complaint against the district arguing, among other things, an alleged failure to report child abuse pursuant to RC 2151.421. The complaint stated Davis, the district and the board of education owed a statutory duty to report suspected child abuse and neglect and that Davis breached his duty by failing to timely and appropriately report child abuse. Davis, the district and the board of education filed a motion for judgment on the pleadings, arguing they were immune from liability. The trial court rejected the defendants’ motion. The district appealed.
On appeal, the district argued that the trial court erred in denying the board of education immunity from liability. The court agreed with the district, finding that although RC 2151.421 creates a right to pursue liability for the failure to report child abuse, it does not specifically identify a political subdivision as an entity with a duty to report. Since neither “political subdivision” nor “board of education” was included in RC 2151.42, the court found that a political subdivision or board of education could not violate the statute. Accordingly, the court found that the trial court erred in failing to grant judgment on the pleadings to the district and their boards of education.
The court upheld the trial court’s finding that there were sufficient facts from which, if proven, a reasonable person could have found that the teacher acted in a wanton or reckless manner.
U.S. Supreme Court affirms decision upholding public sector “fair share fee” arrangements.
Friedrichs, et al. v. California Teachers Association, et al., 578 U.S. ___ (2016).
http://www.supremecourt.gov/opinions/15pdf/14-915_1bn2.pdf
The U.S. Supreme Court issued a one-sentence decision affirming the judgment of the U.S. Court of Appeals for the Ninth Circuit and upholding the constitutionality of public sector “agency shop” or “fair share fee” arrangements. The decision allows public employers to continue to charge a fee to public employees who don’t join a union to pay for other costs that the union incurs – for example, for collective bargaining.
Supreme Court rules that public employer may not retaliate against employee based on perception that he engaged in political activity.
Heffernan v. City of Paterson, 578 U.S. ___ (2016).
http://www.supremecourt.gov/opinions/15pdf/14-1280_k5fl.pdf
Jeffrey Heffernan served as a police officer in Paterson, New Jersey. Heffernan was supervised by an individual appointed by the incumbent mayor as well as the chief of police, who was also appointed by the mayor. During the mayoral campaign, Heffernan picked up a campaign sign for his bedridden mother that supported the mayor’s opponent. Heffernan’s fellow police officers viewed him holding the sign and speaking to staff at the sign distribution point. Heffernan was demoted the next day for his perceived “overt involvement” in the opponent’s campaign. Heffernan sued the police department under the First Amendment. The question before the court was whether Heffernan, who was punished for constitutionally protected political activity but did not actually engage in that activity, could maintain a claim alleging a violation of the First Amendment.
The trial court and court of appeals found for the police department, which argued that because Heffernan was not truly engaging in any First Amendment activity, he could not assert a claim under the First Amendment. The Supreme Court reversed. The court recognized case precedent that a public employer may not discharge or demote an employee for supporting a particular political candidate. The court then focused on the motive for and effect of the city’s actions, which it found were the same whether Heffernan had actually engaged in any political activity. The court found that the city’s demotion of Heffernan served to deter other employees from engaging in constitutionally protected activity.
As a result, the court held that when a public employer takes an adverse action against a public employee for the purpose of preventing the employee from engaging in protected political activity, the employee is entitled to challenge the action, even if the employer is mistaken about the employee’s behavior.
Ninth Circuit finds that teacher’s complaints about special education program were not protected speech under First Amendment.
Coomes v. Edmonds School Dist. No. 15, 9th Cir. No. 13-35747 (March 32, 2016).
https://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/23/13-35747.pdf
Tristan Coomes worked in the Edmonds School Districts in Washington as the manager of the middle school’s emotional/behavioral disorders (EBD) program and the primary teacher for students in the program. Coomes’ relationship with school administrators deteriorated based on her disagreement over the “mainstreaming” of her students. Coomes believed that some of her students who were ready for mainstream classes were not being allowed access to such classes for impermissible financial reasons. She also objected to other significant changes that district administrators had proposed making to the EBD program.
Coomes expressed her concerns about the proposed changes. Meanwhile, Coomes’ evaluations began to worsen and both the principal and assistant principal wrote Coomes a number of letters criticizing her performance. Coomes complained to the district superintendent and the district agreed to transfer her to a position at another school. However, prior to her transfer, she collapsed in the school’s halls, falling to the floor and sobbing uncontrollably. Coomes decided not to return to work and the district processed her employment separation. Coomes filed a lawsuit against the district, alleging that her First Amendment rights were infringed and she was retailed against for exercising those rights. The district court granted the district’s motion for summary judgment. Coomes appealed.
On appeal, the court of appeals upheld the district court’s ruling. The court focused on whether Coomes spoke as a private citizen or as a public employee. The court emphasized that the First Amendment does not protect speech by public employees that is made pursuant to their employment responsibilities no matter how much a matter of public concern it might be.
Coomes described her speech as relating to two topics—the “illegal and improper treatment of vulnerable students in the public school system,” and “bullying and harassment by [school] administrators in retaliation for taking a stand.” The court concluded that Coomes’ speech made to the district related to complaints about her job and fell within her job duties as manager of the EBD program. Therefore, the court concluded that her speech made to district personnel was made in her role as a public employee and was not protected by the First Amendment.
Coomes also spoke to parents. However, the court held that communicating with parents about students’ IEPs and their progress was part of her job. In fact, Coomes, submitted evidence emphasizing that her responsibilities included collaborating with parents. The court concluded that her speech to parents was within the scope of her duties and was not protected by the First Amendment.
Sixth Circuit upholds two-year limit for medical leave of absence.
Wheat v. Columbus Bd. Of Edn., 6th Cir. No. 15-3824 (March 16, 2016).
http://www.ca6.uscourts.gov/opinions.pdf/16a0148n-06.pdf
Kenwanna Wheat started as a full-time custodian with Columbus Public Schools in 2006. In August 2009, Wheat began a medical leave for a shoulder injury she incurred on the job. Multiple extensions of her leave occurred, as Wheat’s doctor repeatedly affirmed her inability to work. With each extension, the board of education informed Wheat that her leave of absence was subject to the collective bargaining agreement governing her employment contract. That agreement directed that “the Board of Education shall grant a leave of absence for a period not exceeding two (2) successive school years where illness or other disability is the reason for the request.”
More than two years after she first took leave, Wheat learned that the board viewed her as ineligible to return to work. Wheat then presented the board with a letter stating that she “will be returning to work,” that she is “disabled” and “will need accommodations” and requested information about “where to report and what time.” Four days later, the board mailed Wheat a termination letter citing the two-year leave limit.
Wheat filed a disability discrimination charge with the Ohio Civil Rights Commission, which found “no probable cause,” and the Equal Employment Opportunity Commission adopted that finding. She then filed a complaint in district court for violations of the ADA, the Rehabilitation Act, and the Ohio Civil Rights Act. The district court granted the board’s motion for summary judgment.
On appeal, the court accepted the board’s argument that it terminated Wheat not because of her disability but for violating the contractual leave-of-absence policy included in her collective bargaining agreement. The court rejected Wheat’s failure-to-accommodate claim because she did not seek any reasonable accommodations within the two-year period. The court held that the board was not required to exempt her from the two-year rule as an accommodation.
Ohio Court of Appeals rejects sovereign immunity for school board after bus driver rear-ends police cruiser.
Elton v. Sparkes, 2016-Ohio-1067.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2016/2016-Ohio-1067.pdf
In January 2010, David Sparkes, a school bus driver for the Akron Public Schools, was in the process of driving his bus back to the bus garage when he rear-ended an Akron police department cruiser. Sparkes admitted he was at fault. While Sparkes was uninjured, the officer driving the cruiser sustained injuries in the collision.
In December 2011, the officer and his wife filed a complaint against the board of education for negligence. The board filed a motion for summary judgment, arguing it was immune under Ohio’s sovereign immunity laws. The trial court determined that the board was not immune from liability. The board appealed.
On appeal, the court of appeals affirmed the judgment of the trial court. Although the court held that RC 2744.02(B)(1) — which states political subdivisions are liable for injury, death or loss to person or property caused by the negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority — appeared to apply and removed sovereign immunity for the board. The court rejected any arguments as to why immunity should be reinstated in the case.
Ohio Court of Appeals upholds denial of sovereign immunity to district administrators in school shooting case.
Parmertor v. Chardon Local Schools, 2016-Ohio-761.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2016/2016-Ohio-761.pdf
On February 27, 2012, Thomas M. Lane III entered the Chardon High School cafeteria carrying a semi-automatic handgun and shot six students. The shooting resulted in the deaths of three students and caused serious permanent injuries to another. The families of those injured or killed in the shooting filed suit against the district, the board members and several administrators of the district. The complaint alleged, among other things, that the Chardon school employees were reckless and their acts and omissions rose to the level of willful and wanton misconduct as they failed to properly assess, evaluate, warn and respond to the mental instability of Lane and his high risk propensity to commit acts of violence toward others.
The district defendants asked the court to dismiss them as defendants on the ground that they were statutorily immune from the plaintiffs’ claims. The trial court granted part of the motion and dismissed the Chardon schools, the board, and the individual board members. However, the trial court denied the school employees’ motion to dismiss, finding it premature to dismiss the plaintiffs’ complaints that the individual administrators acted recklessly, maliciously, willfully or wantonly. Both parties appealed.
On appeal, the court upheld the trial court’s ruling. The court agreed with the lower court and found that the complaint, while very general in its allegations, was sufficient to withstand a motion for judgment on the pleadings. The court specifically rejected the employees’ arguments that plaintiffs were required to provide specific allegations as to the conduct of the individual defendants. As a result, the court found that it was “premature to dismiss the allegations as insufficient at this stage of the proceedings” and affirmed the decision of the lower court.
The district defendants appealed the decision to the Ohio Supreme Court in April 2016. OSBA’s legal assistance fund submitted a memorandum in support of jurisdiction.
NONTEACHING EMPLOYEE - CONTRACT
Ohio bus driver’s acceptance of a one-year limited contract in settlement of his grievance did not render him ineligible for continuing contract.
State ex rel. Brannon v. Lakeview School Bd. of Edn., 2016-Ohio-1367.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2016/2016-Ohio-1367.pdf
In 2007-08, Terry Brannon was hired as a full-time bus driver under a one-year contract. He was subsequently renewed and accepted a two-year contract through 2009-10 school year. In 2011, the board determined that it would not renew Brannon’s employment. Brannon subsequently filed a grievance and the parties entered into a settlement agreement that purported to limit Brannon’s employment to a one-year term of employment, subject to renewal. The agreement provided that Brannon retained “all rights under the law and under the present collective bargaining agreement.” Brannon subsequently accepted a one-year limited contract for the 2012-13 school year and was then offered and accepted an additional one-year limited contract for the 2013-14 school year. Brannon argued that he was entitled to a continuing contract for the 2012-13 school year and filed a petition for writ of mandamus after the district refused to issue a continuing contract. The trial court dismissed Brannon’s request. Brannon appealed.
On appeal, the court reversed the ruling of the common pleas court. The court rejected the board’s policy of an “automatic non-renewal” of any employee after the initial three-year period, finding that such a policy “fundamentally subverts the inherent purpose of RC 3319.081.” The court held that the board’s non-renewal in 2011 did not interrupt Brannon’s continuous employment because he was subsequently retained by operation of the settlement. Because the settlement agreement afforded Brannon “all rights under the law,” the court found that Brannon was entitled to continued employment and the board had a legal duty to provide Brannon a continuing contract for the 2012-13 school year.
Belief in the Flying Spaghetti Monster does not confer religious protections under the law.
Cavanaugh v. Bartelt, D. Neb. No. 4:14-CV-3183 (April 12, 2016).
https://www.scribd.com/doc/308923933/Cavanaugh-v-Bartelt
Stephen Cavanaugh was a prisoner in the Nebraska State Penitentiary. Cavanaugh alleged that he is a Pastafarian, a member of the religion FSMism (Flying Spaghetti Monsterism). The idea behind FSMism is that, because intelligent design does not identify the designer, its “master intellect” could just as easily be a “flying spaghetti monster” as any Judeo-Christian deity. Cavanaugh filed a complaint in federal court, alleging that the Nebraska State Penitentiary failed to provide him with accommodations to practice his religion. Specifically, the complaint alleged that prison officials denied Cavanaugh with the ability to wear the religion clothing of his faith (i.e. a pirate costume), meet for weekly worship services and classes and receive communion (i.e. a large portion of spaghetti and meatballs). Cavanaugh’s requests were rejected because prison officials determined that FSMism was a parody religion.
Although the court limited their analysis of whether FSMism is a “religion” within the meaning of the Religious Land Use and Institutionalized Persons Act, the case provided an analysis of whether a “religion” is in fact a religion that might benefit employers that are asked to examine religious accommodation requests under Title VII.
In the decision, the court recognized that determining whether FSMism was actually a religion was difficult because it was designed to look very much like a religion. However, after examining the origins of FSMism and reading its “religious doctrine” (i.e. the Gospel of the Flying Spaghetti Monster), the court determined that the central purpose of FSMism was satire and the only position it takes is that others’ religious beliefs should not be presented as “science.” In contrast, the court noted that other religions deal with “deep and imponderable” matters and take a position on the existence and importance of a supreme being. As a result, the court found that FSMism was not “religion” and that Cavanaugh failed to allege that a “religious exercise” was burdened.
California district court finds district’s policy of holding prayers during board meetings violates the Establishment Clause.
Freedom From Religion Foundation Inc., et al. v. Chino Valley Unified School Dist. Bd. of Edn., C.D.Cal. No. EDCV 14-2336-JBG (DTBx) (Feb. 18, 2016).
http://ffrf.org/uploads/legal/FFRFvChinoValley_Order.pdf
The board of education of the Chino Valley Unified School District in California adopted a resolution that allowed for an invocation or prayer to be offered at its meetings for the benefit of the board and the community. Leaders of various congregations in the community were invited to offer the prayer. In addition to the opening prayer, board members also recited and read passages from the Bible at various points during the meetings.
The Freedom from Religion Foundation filed a lawsuit against the district, alleging that the district violated the Establishment Clause of the First Amendment by instituting a policy and practice of prayer in the district.
The court found that the school board’s inseparable relationship with the school increased the possibility that students would feel coerced into participating in the prayer practice. The court rejected the district’s argument that the Supreme Court’s recent ruling in Town of Greece altered the analysis. The court concluded that Town of Greece supported the notion that the legislative exception was limited to houses of governance in the world of mature adults, as the Supreme Court repeatedly emphasized that the audience impacted was composed of adults, firm in their own beliefs.
The court applied the Lemon test to determine whether the board’s prayer policy violated the Establishment Clause. The court found that while the board’s resolution stated that its purpose was to solemnify the proceedings of the board, the statements of the board cast serious doubt on the sincerity of the board’s articulated secular purpose. For example, one board member told the audience, “…I think there are very few districts of that powerfulness of having a board such as ourselves having a goal. And that one goal is under God, Jesus Christ.” The court found that the resolution failed to satisfy the first prong of the Lemon test.
The court also found that the board’s resolution conveyed a message of government endorsement of Christianity in the public school system, and therefore failed the Lemon test and violated the Establishment Clause of the First Amendment.
The school board is appealing this decision to the Ninth Circuit Court of Appeals.
RETROACTIVITY
Ohio Supreme Court holds that Ohio Constitution’s protections against retroactive laws do not apply to local governments.
Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn., Slip Opinion No. 2016-Ohio-2806.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-2806.pdf
Ohio’s school funding formula relies upon student counts provided by school districts to calculate the amount of funding for each district. A district’s funding is reduced by a per-pupil amount for every student who resides in the district but instead attends a community school. Both public and community schools report counts of students enrolled in community schools. In the past, these figures often differed because public schools made a single report of student counts to ODE, but community schools reported their data on a monthly basis to ODE.
In Fiscal Year (FY) 2005, ODE used the community school data to reduce district funding instead of the figure provided by the district. While many school districts saw an increase in funding from the policy change, the change had a significant, adverse impact on funding for large urban schools. ODE adjusted the combined counts for Toledo City School District, Cleveland Metropolitan School District, and Dayton City School District down by more than 1800 students, resulting in a reduction in payments of more than $10 million for FY 2005. The funding formulas in FYs 2006 and 2007 relied on FY 2005 funding. ODE estimated that the aggregate cost of the change from district-reported data to the community school data resulted in an additional reduction in funding of approximately $30 million for the districts in FYs 2006 and 2007.
Cincinnati Public Schools sued and won on summary judgment. In 2008, the First District Court of Appeals affirmed the trial court, finding that the funding statute did not permit the use of data reported by the community schools for FY2005. ODE settled the Cincinnati case and came to a partial settlement agreement with the Dayton City School District.
Following the Cincinnati and Dayton settlements, the General Assembly included language in the state’s FY 2009-2010 budget bill that indicated any other school district that suffered a reduction in funding in FYs 2005-2007 as a result of ODE’s substitution did not have a legal claim to reimbursement for the amount of such reduction, and that the state did not have liability for reimbursement of that amount to the school district. A similar provision was included in the 2011-12 and 2013-14 state budgets.
In 2011, the districts brought suit against ODE seeking recalculation and recovery of the difference between what the district was paid and the corrected FY 2005, 2006, and 2007 foundation formula amounts. The cases were consolidated into a single case in the Franklin County Court of Common Pleas.
ODE filed a motion for judgment on the pleadings in April 2012, arguing that the General Assembly’s 2009 legislation prevented the lawsuit. The trial court denied ODE’s motion and found that the 2009 budget bill language was void and unenforceable because it was a retroactive law in violation of the Ohio Constitution.
ODE appealed the trial court’s finding to the Tenth District Court of Appeals. In August 2014, the Tenth District affirmed the trial court’s decision, finding that the 2009 budget bill was an unconstitutionally retroactive law.
ODE appealed to the Ohio Supreme Court. The court held that the retroactivity clause applied to private citizens and corporations, but not to political subdivisions. As a result, the court found that the legislature could retroactively authorize the department to adjust local school funding calculations based on errors and to immunize the department against any legal claim from the school districts.
Ohio Supreme Court holds that public “meeting” may include discussions over email and other electronic communications
White v. King, Slip Opinion No. 2016-Ohio-2770.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-2770.pdf
In March 2012, Adam White, a school board member for the Olentangy Local School District Board of Education, commenced an independent investigation into certain expenditures by two athletic directors. In September 2012, the board voted 4-1 to require that all future communications between board members and staff pass first through the district superintendent or treasurer. White was the only board member who voted against the proposal.
In October 2012, the Columbus Dispatch published an editorial that criticized the board’s policies restricting direct access to administrators and personnel and favorably mentioned White’s decision to vote against the proposal. The board president proposed that a public response to the Dispatch editorial be made and directed three board members to collaborate with the district superintendent to draft a response to the Dispatch editorial. The board members did so in a series of email exchanges that excluded White. The board president submitted a final response that he signed as board president and indicated that he had the consent of three additional board members to publish the response.
In April 2013, White filed a lawsuit against the board, alleging violations of Ohio’s Open Meeting statute. At a meeting of the board, White informed the members of the board of his lawsuit. The remaining four board members voted to publicly ratify the response published by the Dispatch as its official position on the issue.
The lower courts found that there was no violation of the Open Meetings Act because the definition of “meeting” did not include sporadic emails and that the emails didn’t discuss public business because at the time they were exchanged, there was no pending rule or resolution before the board. White appealed to the Ohio Supreme Court.
RC 121.22(C) states “all meetings of any public body are declared to be public meetings open to the public at all times.” RC 121.22(B)(2) defines a “meeting” to be “any prearranged discussion of the public business of the public body by a majority of its members.”
The Ohio Supreme Court reversed the lower courts’ decisions. Writing for the majority, Justice O’Donnell wrote: “Nothing in the plain language of RC 121.22(B)(2) expressly mandates that a “meeting” occur face to face.” Allowing public bodies to avoid the requirements of the Open Meetings Act by discussing public business via electronic communications “subverts the purpose of the act,” he added. The court found that the board’s ratification of the response to the Dispatch at a public meeting proved that the response was the “public business” of the board. The court ordered the case back to the trial court for further proceedings consistent with the court’s opinion.
Ohio Supreme Court rules that an appraiser may use an older sale as a comparable when determining a subject property’s value
Westerville City Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, Slip Opinion No. 2016-Ohio-1506.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-1506.pdf
This case involved a dispute over the value of three undeveloped residential lots in the Westerville City School District. The property owners filed complaints with the Franklin County Board of Revision (BOR), seeking reductions in the county auditor’s 2011 valuations of all three parcels. BOR granted the requested reductions.
The Westerville City School District Board of Education appealed to the Board of Tax Appeals (BTA). On appeal, the district introduced testimony and a written appraisal that relied heavily on the 2007 sale of a nearby lot, which was a significantly higher valuation. The BTA adopted the valuations provided by the district. The owners appealed to the Ohio Supreme Court, arguing that the BTA acted unreasonably and unlawfully because the appraisal it used relied heavily on a 2007 sale that preceded the tax-lien date by more than 24 months.
The court sided with the district finding that even when a sale is not presumed recent, an appraiser may use it as a comparable, after making necessary adjustments, when determining a property’s value. The court rejected the owners’ argument that county auditors were only permitted to consider comparable sale prices that occurred within the 24-month period prior to the tax-lien date (i.e. the “Akron doctrine”). The court found that the Akron doctrine bears only on whether the sale price of a property is sufficiently recent to be accepted as that property’s value and has no bearing on an appraiser’s ability to rely on a particular comparable to value another property. As a result, the court found that even when a sale isn’t presumed recent under the Akron doctrine, an appraiser may use it as a comparable when determining the subject property’s value. The court affirmed the BTA’s decision.
Ohio Court of Appeals affirms board’s decision to terminate teacher contract on the basis of academic fraud.
Routson-Gim-Belluardo v. Jefferson Twp. Local School Dist. Bd. of Edn., 2016-Ohio-1265.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2016/2016-Ohio-1265.pdf
In 1999, Gloria Routson-Gim-Belluardo was hired as an intervention specialist by Jefferson Township for students in kindergarten through third grade. During the 2013-14 school year, the district began using the San Diego Quick Assessment (SDQA) as Belluardo’s Student Learning Objectives (SLOs) to calculate student growth for purposes of teacher evaluations. Specifically, Belluardo’s approved SLO provided that she would administer the SDQA at the beginning of the year in order to document each student’s baseline reading level and again at the end of the year in order to determine how far each of her students’ reading levels had progressed.
In April 2014, Belluardo submitted her post-test results to the district. Upon reviewing her submission, the district immediately became concerned regarding the significant advancement in the reading levels of several of her students. Specifically, several students were reported as exhibiting four to five school years of growth in their reading ability in only six months. In May, Belluardo met with district administrators and admitted that she had provided her students with a list of words from the SDQA to study over winter and spring breaks. Belluardo’s contract was suspended and she was ultimately terminated. Belluardo requested a hearing, during which Belluardo testified that she never provided her students with a list of words from the SDQA.
In December 2014, the impartial referee found that the board had failed to establish that Belluardo committee academic fraud and recommended against terminating Belluardo’s teaching contract. The board rejected the referee’s recommendation, concluding that his findings were manifestly against the greater weight of the evidence. In January, Belluardo appealed the board’s decision to the court of common pleas. The court affirmed the board’s decision terminating her teaching contract, finding that Belluardo’s manner of administration of the SDQA constitute good and just cause for her termination, as her conduct led to the students not being properly assessed and taught.
On appeal, the court of appeals held that the board correctly found that the referee’s report relied solely upon Belluardo’s own self-serving testimony that she did not provide her students with the answers to the SDQA while ignoring the greater weight of the evidence. As a result, the court of appeals concluded that the trial court’s decision affirming the board’s order terminating Belluardo’s position was not an abuse of discretion and was clearly supported by the manifest weight of the evidence.
Thanks to Subashi & Wildermuth, Dayton for submitting the above decision.
Federal appeals court rules in transgender student restroom access case.
G.G. v. Gloucester Cty. School Bd., 4th Cir. No 15-2056 (April 19, 2016).
http://www.ca4.uscourts.gov/Opinions/Published/152056.P.pdf
The Fourth Circuit Court of Appeals recently ruled that courts must give deference to the U.S. Department of Education’s recent guidance that public schools must treat a transgender student in conformity with the student’s gender identity.
The case involved a transgender male student in Virginia named Gavin Grimm, whose birth-assigned sex was female, but who identifies as male. In 2014, Gavin’s school district adopted a policy that required students to use the restrooms and locker rooms that corresponded to their “biological genders.” The policy provided students with “gender identity issues” with an “alternative appropriate private facility.”
In June 2015, Gavin asked the federal district court to order the district to allow him to use the boys’ restroom. He also filed a complaint against the district arguing that the board discriminated against him in violation of Title IX, which protects against discrimination on the basis of sex.
In September 2015, the district court issued a written order denying Gavin’s request and dismissing his Title IX claim. In reaching its decision, the court observed that the Title IX regulations specifically allow schools to provide separate bathrooms “on the basis of sex.” The district court concluded that Gavin’s sex was female and that requiring him to use the female restroom facilities did not discriminate against him on the basis of sex in violation of Title IX. Gavin appealed.
On appeal, the Fourth Circuit gave deference to the U.S. Department of Education Office for Civil Right’s (OCR) January 7, 2015 Dear Colleague Letter, which states the following: “When a school elects to separate or treat students differently on the basis of sex…a school generally must treat transgender students consistent with their gender identity.” The court of appeals found that the district court incorrectly denied Gavin’s request and ordered the case back to the district court so it could consider Gavin’s request under the proper standard. The court also ordered the lower court to consider some evidence presented by Gavin that the lower court had excluded.
Sixth Circuit upholds summary judgment for school board who was not deliberately indifferent to student bullying.
Stiles v. Grainger Cnty. Bd. of Edn., 6th Cir. No. 15-5438 (March 25, 2016).
http://www.ca6.uscourts.gov/opinions.pdf/16a0072p-06.pdf
DS attended Rutledge Middle School in Tennessee from August 2010 to January 2012. During that time, DS was involved in a string of verbal and physical altercations with other students. DS and his mother repeatedly complained to school officials that students were bullying DS. School officials investigated those complaints and responded by disciplining the students found culpable and taking other proactive measures such as placing DS in different classes from his alleged harassers. Despite these efforts, DS continued to have problems with other students, culminating in an attack in the school bathroom that led DS to transfer to another school.
DS filed a lawsuit against the district alleging that the district violated Title IX by inadequately responding to DS’s complaints of student-on-student sexual harassment. The district court granted the school board’s motion for summary judgment. DS appealed.
On appeal, the court of appeals affirmed the order of the district court. The court found that although there was significant evidence demonstrating that school administrators had actual knowledge of the sexual harassment, DS fell short of showing that the district was deliberately indifferent to the harassment. The court observed that each time DS or his mother communicated a specific complaint of harassment, the school investigated promptly and thoroughly by interviewing DS, interviewing other students and teachers, taking detailed notes, and viewing video recordings when available. At the conclusion of each investigation, the administrators disciplined students found guilty of wrongdoing either with a verbal warning or suspension. The school also took proactive steps to reduce opportunities for future harassment. The court found that although the school’s efforts did not end DS’s problems, “Title IX does not require school districts to eliminate peer harassment.” As a result, the court found that the district court correctly granted summary judgment to the board of education on the Title IX claim.
Kentucky district court concludes teacher received adequate due process after he was terminated for inappropriate contact with a student.
Tinch v. Jefferson Cnty. Pub. School Sys., W.D.Ky. No. 3:12-cv-844-DJH (April 19, 2016).
https://scholar.google.com/scholar_case?case=5724318027840371669&hl=en&as_sdt=6&as_vis=1&oi=scholarr
In August 2011, the Jefferson County Board of Education in Kentucky hired Joshua Tinch as an Instructor III. Two weeks later, the school’s principal suspended Tinch indefinitely based on a statement prepared by a minor student (RD) that she and Tinch had inappropriate conduct. Tinch sued the district claiming that his due process rights were violated.
The court found that Tinch received adequate notice and an opportunity to be heard prior to his termination. The court found that the principal provided the requisite notice to Tinch when he called Tinch into his office to explain his indefinite suspension due to an allegation of inappropriate contact with a student.
The court found that TInch also received an opportunity to be heard. Tinch received an opportunity to meet in person with the district’s investigator and explain his side of the story. He also presented a written statement to the investigator. As a result, the court found that Tinch received adequate pretermination due process.
The court found that the additional post-termination hearing also afforded Tinch with additional due process and served to “ferret out bias, pretext, deception and corruption by the employer in discharging the employee.” The court acknowledged that the post-termination hearing was unnecessary to satisfy the Loudermill standard, but “bolstered his protection against a due process violation. The court therefore granted summary judgment to the district as to Tinch’s due process claim.