School Law Summary 2023-4
In this issue: Board Of Education — Policy • Discrimination — Race • Discrimination — Sex • Elections • First Amendment • Open Meetings Act • Public Records • Tax — Levies • Tax — Valuation/Real Property • Title IX • Tort Liability — Sovereign Immunity • Transgender Students
Federal district court finds that school board’s resolution opposing certain racial and social curriculum constitutes a policy or practice that conferred standing on plaintiff parents and students, allowing suit to proceed.
Updike v. Jonas, S.D.Ohio 1:22-CV-374, 2023 U.S. Dist. LEXIS 192377 (Oct. 23, 2023).
https://scholar.google.com/scholar_case?case=9403904604643460763&hl=en&as_sdt=6&as_vis=1&oi=scholarr
In June 2022, Forest Hills City School District (FHSD) passed a “Resolution to Create a Culture of Kindness and Equal Opportunity for All Students and Staff,” which was intended to eliminate “Critical Race Theory, intersectionality, identity, or anti-racism curriculum.” To this end, the resolution stated that schools "shall" or "shall not" do a variety of lessons or administrative functions, which acknowledge demographic aspects such as race or identity.
A group of educators and parents from FHSD sued, arguing that the resolution constituted a policy limiting the freedom of speech of students and educators without a pedagogical reason. As such, they argued it was an impermissible implementation of a policy practice or custom. The defendants, which included the district and certain administration officials, argued that the resolution was simply a broad, unenforceable vision statement, which was not equivalent to a policy adopted pursuant to the board’s bylaws. Because of this, they claim that plaintiffs lacked standing because there was no injury-in-fact, a requirement in order for the federal court to have jurisdiction over the claims.
The court disagreed and found that the district’s argument "defies logic and the basic conventions of the English language." Uses of phrases like "shall not" or "may not" show that the resolution was meant to be mandatory. So, while the resolution may not have been called a “policy,” it need not be to be considered an "unconstitutional custom that amounts to policy."
The court went on to find that not only were plaintiffs entitled to action based on the current implementation of the resolution, but they were also entitled to preenforcement action due to the legitimate constitutional concern of a chilling of speech. All these concerns were clearly traceable to the defendants who implemented such a policy.
Finally, the court addressed whether the plaintiffs have a legitimate liberty interest regarding their children and students. The court found that parents’ and teachers’ liberty interests, while limited in scope, do encompass challenges to unnecessary and arbitrary exercises of power. The court thus denied defendants’ motion to dismiss.
U.S. 4th Circuit rules in favor of school district that implemented a race-neutral admissions policy for its competitive magnet school, which was implemented in part to increase the racial diversity of the school’s student body.
Coalition for TJ v. Fairfax Cty. School Bd., 68 F.4th 864 (4th Cir.2023).
https://www.ca4.uscourts.gov/opinions/221280.P.pdf
The Thomas Jefferson High School for Science and Technology is a prestigious and selective public school within the Fairfax County School District in Virginia. The school’s previous admissions standards were based on a student’s GPA, algebra credit and performance on a series of standardized tests. Under these criteria, the school traditionally maintained a student body with a disproportionately large Asian American population, with Asian American students making up a majority of students admitted during the 2010s, even upwards of 70% of the total. The criteria also resulted in low numbers of economically disadvantaged students, special education students, English learners and Black and Hispanic students.
In May 2020, district staff made multiple proposals to the board for changes to the admissions policy after the district published the statistics for its incoming freshman class in which less than 10 Black students were admitted to the school. The school’s principal also indicated that the protests surrounding the killing of George Floyd further illustrated the need to change the policy and address the “unacceptable numbers of African Americans that have been accepted to TJ.”
The board considered a range of proposals to amend the policy, before finally settling on a holistic merit-based regional system, which it adopted in December 2020. Under this policy, the top 1.5% of each feeder middle school’s eighth-grade class would be extended offers and 100 remaining seats would be left for the most qualified remaining applicants. The holistic test would look at four “experience factors,” which included the applicant’s special education status, eligibility for free or reduced-price meals, status as an English-language learner and attendance at a historically underrepresented public middle school. The policy was meant to be race-neutral, with applicants given identification numbers and no demographic information being reviewed by admissions staff.
The policy resulted in significant change in the racial composition of the school’s incoming class in 2021, with Black students receiving 7.9% of offers and Hispanic students receiving 11.27% of the offers. However, the share of the student body made of Asian American students went down from 65%-75% to about 54% of accepted students.
The plaintiff Coalition for TJ is an advocacy group of parents within the Fairfax County School District, and it filed suit in federal court against the district, challenging the new admissions policy. Specifically, it alleged that the new policy violated the equal protection clause because it was “specifically intended to reduce the percentage of Asian-American students who enroll in TJ.”
At the district court, the coalition sought a preliminary injunction blocking the policy, which was denied. However, the district court eventually granted summary judgment in favor of the coalition, finding that the policy had a disparate impact on Asian American students because the 1.5% feeder-school requirement alongside the experience factors combined to deprive those students of a fair playing field. Thus, the district court found that the policy was unconstitutional when applying strict scrutiny. The board appealed this decision, saying its policy did not specifically target Asian American students or try to strike a racial balance, but simply to create a more fair and holistic process.
The 4th Circuit reversed the district court’s decision, finding that the lower court incorrectly analyzed the disparate outcomes to point to discrimination. Per the court, while a before-and-after analysis does reveal that fewer Asian American students were accepted under the new policy, that fact alone does not show evidence of unconstitutional racial discrimination. The court noted that the coalition erroneously argued that the policy prior to the new one was the proper baseline for comparison of disparate impact. This could not be true as it would turn “the previous status quo into an immutable quota,” with the result that no policy that caused a change in racial breakdown would be safe from constitutional attack. Reviewing the policy by its actual discriminatory effect against Asian American students, the court found that there was no evidence of impermissible discrimination. Asian American applicants were not accepted disproportionally less than other applicants. On the contrary, Asian American students were the only racial or ethnic group to receive offers notably in excess of its share of the applicant pool.
The coalition specifically argued that the 1.5% feeder school requirement and the four experience factors were discriminatory. The court found that neither of these were discriminatory because neither one impaired Asian American students’ abilities to apply or unfairly excluded Asian American students. Having the feeder school requirement did not discriminate against any racial group; rather it limited the proportion of students from the select feeder middle schools. The experience factors likewise did not constitute creating racial categories; in fact, reviewers of applications were expressly told to not take the student’s race into account. The court noted that the presence of a disparate impact is necessary for an equal protection claim, but it is not dispositive of the claim.
The court then addressed the coalition’s claim that the policy was implemented with discriminatory intent. The court rejected this argument because the coalition failed to point to statements that showed an intent to reduce the number of Asian American students at the school, and the actual admission process was race-neutral. The coalition argued that the approval process for the policy showed racial motivation, specifically referring to the principal’s comments after the death of George Floyd and other issues with the process. The court noted that the approval process was not impermissibly flawed and the principal’s statement calling for increased racial diversity did not demonstrate discriminatory intent.
The court concluded by dismissing the argument that the policy discriminated against Asian American students by proxy. The coalition argued that the policy was designed to increase Black and Hispanic enrollment, which would, by necessity, decrease the representation of Asian Americans at the school. The court pointed out that even if this were true, trying to increase diversity by means of a race-neutral measure is a method that courts have not found suspect. A plaintiff in an equal protection claim must show evidence of “at least some specific intent to target a certain racial group and to inflict adverse effects upon that group,” which was not present under the district policy.
U.S. 6th Circuit rejects bidder’s claim of discrimination because consultant vetting bidders did not award the contract and there was no showing that the township encouraged the consultant’s alleged discrimination.
Inner City Contracting, LLC v. Charter Twp. Of Northville, 6th Cir. No. 22-2131, 2023 U.S. App. LEXIS 31667 (Nov. 30, 2023).
https://cases.justia.com/federal/appellate-courts/ca6/22-2131/22-2131-2023-11-30.pdf?ts=1701374439
In March 2022, the township of Northville, Michigan, solicited bids for the demolition of certain former hospital buildings. Inner City Contracting (ICC) submitted the lowest bid, and Asbestos Abatement, Inc. (AAI) submitted the second lowest bid, with a difference between the bids of almost $1 million. ICC is a minority-owned business, and AAI is a white-owned business. The township hired consulting company Fleis & Vandenbrink (F&V) to vet the bidders, make a recommendation as to which company should receive the contract and manage the demolition project. F&V recommended that AAI should receive the contract, citing AAI’s superior presentation, more aggressive timeline and more relevant experience. Relying on this recommendation, the township awarded the contract to AAI.
On May 27, 2022, ICC filed a complaint against the township and F&V, claiming racial discrimination after F&V allegedly made false and inaccurate statements about ICC. Both defendants filed motions to dismiss. The district court granted the motions to dismiss on Nov. 22, 2022, finding that ICC did not allege sufficient facts to state claims of racial discrimination and equal protection violations; that F&V was not a state actor for purposes of liability; and that ICC lacked standing to allege constitutional violations.
On appeal, the 6th Circuit evaluated whether ICC had standing to assert its claims. Although case precedent generally precludes a disappointed bidder from challenging the bidding procedure or the award of a contract, the court acknowledged that ICC’s claim was not merely that of a disappointed bidder alleging issues with the bidding rules. Rather, ICC alleged racial discrimination, which the court recognized as a claim seeking to vindicate ICC’s rights rather than those of the public. The court also acknowledged that ICC met the elements of a standing injury. First, ICC demonstrated that it suffered a cognizable injury when it lost a lucrative award and profits as a result of alleged racial discrimination. Second, this injury, according to the complaint, was traceable to the defendants’ conduct. Finally, the injuries were redressable by a favorable court decision, which could award monetary relief to compensate ICC for its injuries and grant the requested injunction. As a result, the court found that ICC had standing to bring its claims.
The court relied on case precedent from sister circuits to find that corporations have standing to allege racial discrimination and found that ICC met its preliminary burden in its pleadings that it was entitled to relief. ICC alleged that it submitted a bid for a government contract, but the defendants treated ICC differently than the similarly situated, white-owned AAI. In particular, ICC alleged that its bid was almost $1 million lower than AAI’s bid. The court found that these facts, taken together and liberally construed in favor of ICC, plausibly alleged that ICC was denied the right to contract as a result of inaccurate statements allegedly made on the basis of race.
However, the court agreed with the district court that ICC did not carry its burden of proving that F&V was a state actor in order to warrant liability under Sec. 1983. The court found that F&V did not award the government contract, but rather reviewed proposals and made a recommendation. Since the township retained final authority over the awarding of the contract, the court found that F&V did not operate as a state actor. The court also found that ICC did not describe an official policy or custom on the part of the township that deprived ICC of its constitutional rights. The court found that ICC had not sufficiently alleged that a state actor intentionally discriminated against it. ICC’s chosen defendants were a private actor who allegedly discriminated and a state actor who did not commit any acts of discrimination.
As a result, the court reversed the district court’s order dismissing ICC’s claims for lack of standing, but affirmed the district’s dismissal in all other respects and remanded the case for further proceedings.
Federal district court dismisses teacher’s Title VII and Title IX discrimination claims against district after teacher agreed to waive claims, despite the fact that waiver language did not include required seven-day revocation window for age discrimination claims.
Link v. Bd. of Edn. Kettering City Schools, S.D.Ohio No. 3:22-CV-295-WHR-CHG (Sept. 27, 2023)
https://casetext.com/case/link-v-bd-of-educ-of-kettering-city-schs
David Link was a teacher at Kettering City Schools until being placed on administrative leave following alleged inappropriate activity with a student. After signing a resignation agreement, Link alleged violations of Title VII and Title IX claims, which alleged discrimination based on their identity as a transgender/gender-nonconforming, bisexual individual. Both the school district and Link sought to settle this issue, and thus they reached an agreement by which Link would dismiss a variety of claims in return for certain benefits. The signed agreement explicitly included a waiver of possible age discrimination claims.
After the signing of the agreement, Link pursued action against the district on the Title VII and Title IX claims. He argued that the waiver in the settlement agreement was invalid due to a requirement to have a seven-day revocation window for age discrimination claims, per the Older Workers Benefit Protection Act (OWBPA). Link argued this protection extended to him because the settlement mentioned age-based discrimination for which the Age Discrimination in Employment Act (ADEA) provides the revocation safe harbor. The district responded, stating that that requirement was not applicable as Link did not raise any age-based discrimination claims.
The school district moved to dismiss both claims on the grounds that they were waived by the settlement agreement. The court agreed with the district and found that while Link was correct that waiver language specific to the age-based discrimination claim should have included the revocation window, this requirement did not extend to all the claims in the settlement. Thus, it did not impact their waiver of the Title VII and Title IX claims.
Link had also raised a freedom of speech claim, which was dismissed. Link’s complaint did not include a short and plain statement entitling them to relief, with all the allegations simply being legal assertions and conclusions.
Supreme Court of Ohio upholds invalidation of election part-petition in which the candidate submitted a part-petition on which a wife signed her husband’s name.
State ex rel. Robinson v. Crawford Cty. Bd. of Elections, Slip Opinion No. 2023-Ohio-3378
https://cases.justia.com/ohio/supreme-court-of-ohio/2023-2023-1136.pdf?ts=1695330446
Connie Robinson brought suit against the Crawford County Board of Elections over its invalidation of her candidate petition due to a forged signature. She was attempting to qualify as a candidate for a seat on the Galion City Council. Robinson was collecting signatures for her election when one voter signed not only her name but also her husband's name on the part-petition. For this reason, the part-petition with the forged signature was invalidated, resulting in Robinson having too few signatures to qualify to be on the ballot.
Robinson contested this decision, first arguing that while the signature was forged, she did not knowingly submit a forged signature. She further argued that even if the singular signature itself is invalid, it should not invalidate the entire part-petition. The board of elections disagreed, noting that when she submitted the petition, she also submitted a statement that she “witnessed the affixing of every signature.” Robinson had thus admitted that she had not witnessed the number of signatures that she had declared having witnessed, which necessarily meant that her circulator statement was false.
Robinson then filed suit seeking a writ of mandamus ordering the board to certify her name to the general election ballot as a candidate for the city council seat. She attempted to rely on a Supreme Court of Ohio precedent State ex rel. Mann v. Delaware Cty. Bd. of Elections, in which the court held that if a board of elections noticed a discrepancy between the petition signatures, it did not establish a sufficient basis to infer that the signatures were knowingly submitted with the error.
The Supreme Court sided with the board of elections. The court first determined that Robinson had misapplied precedent because, in the case of Robinson's petition, the dispute arose out of the fact that the signatures were clearly written by the same hand. Additionally, based on Robinson's own testimony, she presented her petition to one person for a signature and received two signatures instead. This meant that the board's decision to invalidate the entire part-petition was not an error because it was not an abuse of discretion to infer that Robinson knowingly submitted the part-petition with a false signature.
In addition, the court determined that the part-petition was invalid because Robinson falsely submitted her circulator statement. In the statement, she attested that she personally witnessed the signing of the signatures on her petition. But by her own admission in her pleading, she did not witness the signing of the invalid signature, so the entire part-petition was invalid because the circulator statement had been signed falsely.
U.S. 6th Circuit overturns district court award of summary judgment to district officials sued by parent for retaliation after the parent sent critical text messages to his daughter’s coach and determines that the disruption standard allowing districts to limit student speech does not apply to parental speech.
McElhaney v. Williams, 81 F.4th 550, 2023 U.S. App. LEXIS 22466 (Aug. 25, 2023).
L.M. was a senior at Upperman High School in Georgia and an infielder on the varsity softball team. The school had distributed a parent-player information sheet. One of the instructions on the sheet encouraged parents to be supportive of the team and refrain from negativity. Parents were also barred from attending team practice and interacting with their children during games.
During the season, L.M.’s father, Randall McElhaney, sent text messages to her coach criticizing his managerial decisions after L.M. was benched. The coach replied to the first message, and McElhaney answered with a somewhat apologetic text. The coach believed that the messages violated team policy and forwarded them to the school principal. The principal found the messages inappropriate and banned McElhaney from attending a week’s worth of softball games for a violation of the team’s rules. McElhaney challenged the decision within the district; district officials reviewed the matter and decided that they would not overrule the principal’s decision.
McElhaney attended the next game, sitting in a reserved season ticket seat. The principal saw him there and asked him to leave. A school resource officer (SRO) warned McElhaney that, if he stayed, he would be trespassing. McElhaney, fearing arrest, left.
Shortly thereafter, McElhaney filed a civil rights lawsuit against the coach, principal, various administrators of the athletic department and the SRO. McElhaney alleged that his communications with the coach were speech protected by the First Amendment and that the district employees’ actions were retaliation against him for exercising his rights.
The district court granted the district employees summary judgment based on qualified immunity. It concluded that McElhaney’s right to attend games after criticizing the coach was not clearly established, meaning the officials’ actions did not violate a settled constitutional right. It also concluded that McElhaney had not experienced a due process violation because any injury he suffered by being barred from his reserved season ticket seat could be remedied through a state breach of contract action. It declined to exercise supplemental jurisdiction over McElhaney’s state contract claim. McElhaney appealed to the 6th Circuit Court of Appeals but did not appeal the decision on supplemental jurisdiction.
In a decision replete with softball terms and phrases (at which this summary balks), the Circuit Court overturned the district court’s decision regarding McElhaney’s First Amendment retaliation claim. The court determined that McElhaney must show that: (1) he engaged in constitutionally protected speech; (2) the school officers took adverse actions against McElhaney that caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing that activity; and (3) the officers’ actions were motivated, at least in part, by the exercise of his constitutional rights. However, the court modified its inquiry based on the assertion of qualified immunity. In this case, McElhaney was required to show both that: (1) school officials violated his constitutional rights, and (2) that “the right was ‘clearly established’ at the time of the challenged conduct.”
The court concluded that the constitutional right at issue in McElhaney’s claim was the right to not be subjected to retaliation for engaging in First Amendment protected activity. It stated its belief that any reasonable public official would have understood that McElhaney’s speech was protected. It noted that speech cannot be prohibited only because it offends the sensibilities of others, meaning almost all speech is protected, especially when government censorship is based on the views expressed within the speech. The court noted case law concluding that the right to criticize public officials is protected speech and off limits from governmental regulation.
The court noted that there are a handful of categories of speech for which content-based prohibitions may be permissible, including speech expressed as part of a crime, obscene expression, incitement and fraud. Outside of these categories, schools cannot regulate the content of parents’ speech about their children to school employees who interact with their children.
The district argued that it had a right to limit McElhaney’s speech to school officials because the First Amendment allows it to place “substantial restrictions” on parental speech, including a prohibition against directly debating with a coach about playing time. The Circuit Court noted that, while this rule might make sense, the First Amendment protects many statements and actions that lack decorum. The court distinguished between the limits a school can place on student speech, based on the school’s need to prevent disruption and maintain order and discipline, and those it can place on parents’ speech. The court noted that parents have a different relationship to school activities than students. As a result, the disruption standard has not been applied to run-of-the-mill adult speech directed at school officials.
The court noted that McElhaney acknowledged the district’s reasonable, viewpoint-neutral time and place restrictions on parental speech to school officials. However, it concluded that the First Amendment protections encompass a parent’s criticism of the ways in which school employees treat the parent’s children and a school official is prohibited from retaliating against the parent for the content of his speech.
The Circuit Court remanded the case to the district court to determine whether a constitutional violation occurred in this situation. It directed the district court to determine whether the school officials’ actions were motivated by McElhaney’s speech, rather than the time, place or manner of that speech, and whether the actions were sufficiently adverse to constitute retaliation.
Regarding McElhaney’s due process claim, the court noted that it was a state court contract claim rather than a constitutional claim and there is no due process violation for a deprivation that can be completely remediated under state contract law. Because McElhaney did not appeal the district court’s decision to decline supplemental jurisdiction on the state contract claim, the court concluded that the issue was not part of the appeal before it.
Appellate court upholds dismissal of challenge to public body’s adoption of consent agenda process but awards damages to relator for the board’s failure to produce requested records.
State ex rel. Ames v. Portage Cty. Bd. of Commrs., Slip Opinion No. 2023-Ohio-3382.
In 2019, the Portage County Solid Waste Management District Board of Commissioners (board) adopted a policy empowering the board to utilize consent agendas for issues it deemed routine. At two meetings in September 2019, the board utilized the consent agenda process to approve minutes from previous meetings and to approve multiple resolutions. In December 2019, Brian Ames filed a public records request, which included a request for the minutes from these meetings. The minutes the board provided in response to the request contained a reference to a resolution that was passed but did not contain a copy of the actual resolution. Ames contested the consent agenda process, arguing that it effectively eliminated the prior notice that the board was required to give before policy decisions. He sued the board under the Open Meetings Act (OMA) for the use of consent agendas and the Public Records Act (PRA) for the failure to produce the resolution in response to his request.
This was the second time the appellate court had heard this issue, previously having reversed and remanded a decision granting summary judgment to the board. After the first appeal, the appellate court instructed the lower court to determine whether Ames was entitled to relief from OMA and whether he was entitled to statutory damages for the PRA claim. The lower court granted summary judgment regarding the OMA claim in favor of the board but denied statutory damages based on the PRA claim. Once again, on appeal, the court partially reversed and remanded the decision, agreeing with the lower court on the OMA claim but found error in the lower court’s decision regarding the PRA statutory damages calculations.
On this appeal, the court agreed with the lower court in dismissing the OMA claim, as Ames did not bring an actionable claim for relief. First, he had sought a writ of mandamus against the board utilizing a consent agenda. This point was moot because the board had stopped using a consent agenda once the litigation began. Second, he argued that he should be granted an order which compels the board to keep accurate minutes. The court determined that such an order is unnecessary, as it would simply require the board to apply the current law. Finally, he argued for the court to declare that consent agendas, as utilized by the board, necessarily violate OMA, something the appellate court determined was not in its authority.
For the PRA claim, the court reversed the lower court decision and found that Ames was entitled to damages under PRA. Because Ames was not provided the accurate record at the time he requested it, he was entitled to relief under PRA. While he does not have a claim for the general failure to maintain records, he is entitled to damages for the failure to provide records when requested.
Court rules that the responses to a mental health survey issued to school district staff did not constitute public records subject to disclosure because the district did not ultimately take action in response to the survey results.
State ex rel. Ames v. Crestwood Local School Dist. Bd. of Edn., 2023-Ohio-4371.
https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2023/2023-Ohio-4371.pdf
In 2022, the athletic director for the Crestwood Local School District issued a “Mental Health PD Survey” to school district staff. The survey indicated that it was intended to set “a baseline for how well Crestwood Local Schools is doing with recognizing, acknowledging, and implementing strategies to address Mental Health-Wellbeing [sic] /Burnout Feeling” and that it would be used to implement strategies that would be aimed to improve these measurements within the district. It also included language indicating that responses would be kept anonymous. The board of education did not authorize, direct or approve the survey, and the superintendent indicated that he allowed it to move forward despite the fact that it was not board-approved. Only 60 of 210 staff completed the survey, so the school treasurer expressed an opinion that it did not accurately reflect the district and that the district would not utilize or rely on the survey results in any way. The board president and superintendent echoed this statement.
On April 3, 2023, Relator Brian Ames submitted a public records request for “copies of records documenting the results of the public health survey conducted using the attached form.” The district responded with a communication stating that the requested records were not public records as they “are personal to the individual responding to the survey and were not relied upon by the Board in taking any action; therefore, they ‘reveal little or nothing’ to the District’s own conduct and do not document the organization, functions, policies, decisions, procedures, operations, or other activities of the District.” Ames filed a petition for a writ of mandamus the next day directing the district to provide the records as well as requesting statutory damages and attorneys’ fees. The district sought summary judgment in their favor.
The court ultimately agreed with the district that the requested materials were not public records and thus denied Ames’ request for a writ and damages. The definition of “public record” contains three elements: they must be (1) documents, devices or items, (2) created or received by or coming under the jurisdiction of the [public office], (3) which serve to document the organization, functions, policies, decisions, procedures, operations or other activities of the office. Per the court, while the requested records here met the first two requirements, Ames failed to prove that they met the third. Because the records were just the responses and opinions of individual staff members and the district took no action on them, they did not document the functions of the district. It further noted that disclosure would not ensure the accountability of the district or shed light on its performance of its statutory duties.
Ames argued that because school officials had seen the results of the survey, they could not wipe their minds of their content and therefore could not assert that they did not rely on them or use them in any way. The court disagreed with this argument and pointed to precedent in which materials that were reviewed by public officials (specifically in the contents of a criminal presentence investigation) but not ultimately relied on them were not automatically construed to be public records. Because the board and other school officials did not take subsequent action in response to the survey, the results did not cross the threshold into documenting the organization or functions of the district.
Likewise, the court rejected Ames’ contention that because the survey indicated that the district would use the survey results and that they could have done so, the responses constituted public records. The majority reiterated its position that the district would need to have actually taken some action in order for the responses to constitute public records — that it merely could have done so is insufficient.
Appeals court upholds conviction of Bellbrook-Sugarcreek school board member for dereliction of duty for the board’s using of public funds to send postcards in support of levy.
State v. Slouffman, 2023-Ohio-4055.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2023/2023-Ohio-4055.pdf
A tax levy for the Bellbrook-Sugarcreek Local School District was on the ballot in the May 2019 election. Prior to the election, a political action committee (PAC) in support of the levy was organized in large part by the superintendent. In April 2019, members of the school board began discussing creating a communication to be sent to the community explaining the need for the levy. Specifically, board members had discussions over text messages. Virginia Slouffman, one of the board members, was included in the conversation but did not ultimately provide any feedback on the proposed communication. The board then sent out two double-sided postcards, prior to the election, which declared “Continue the Excellence with the passage of Issue 4.” The first postcard featured a picture of all board members and a lengthy explanation about the need for the levy. A second postcard went out with further arguments in support of the levy. Both postcards indicated that they were paid for by district funds.
Ohio Revised Code 9.03 prohibits public bodies from “us[ing] public funds to “[p]ublish, distribute, or otherwise communicate information that … [s]upports or opposes … the passage of a levy or bond issue.” In November 2021, Slouffman and other school administrators were criminally charged with the illegal transaction of public funds and dereliction of duty based on their conduct regarding the postcards. At trial, Slouffman denied that district funds were used to support the PAC and stated that while she knew about plans to send a letter, she did not provide input and did not see the postcard until she received it in the mail. At the bench trial, the judge dismissed the charge of illegal transaction of public funds but convicted her of the misdemeanor of dereliction of duty.
Slouffman appealed this decision, arguing that she was convicted on insufficient evidence. She first asserted that the postcard was not an endorsement for the levy, and thus not a use of public funds for an election. Second, she argued that she did not act recklessly because she was not engaged in the creation of the postcard or see the postcards before they were mailed.
On appeal, the court concluded that neither of Slouffman’s assignments of error were proper and upheld her conviction. While Slouffman tried to argue that the postcard did not endorse Issue 4, the court found that the phrase “continue the excellence with the passage of Issue 4” was clearly an invitation to vote for the levy. While Slouffman expressed that she did not give a warning or otherwise object to the postcards due to the board’s dismissive nature towards her, the court concluded that her actions still could constitute at least recklessness. The court thus upheld her conviction.
Supreme Court of Ohio upholds board of elections’ denial of school district’s levy ballot language where district initially submitted language with incorrect cost estimates and then submitted correct version after the statutory deadline for submission.
State ex rel. Ottawa Hills Local School Dist. Bd. of Edn. v. Lucas Cty. Bd. of Elections, Slip Opinion No. 2023-Ohio-3286
https://cases.justia.com/ohio/supreme-court-of-ohio/2023-2023-1081.pdf?ts=1694813839
On June 21, 2023, the Ottawa Hills Local School Board of Education proposed a levy following the prescribed procedure, with the county's auditor submitting four different levy amounts with different expected taxpayer expenses. On July 19, the board of education certified and submitted a proposed levy amount of 12.9 mills; however, the ballot language said the estimated cost would be $382 per $100,000 in property value rather than the actual expected costs of $452 per $100,000. The ballot language contained in the resolution also contained the incorrect $382 figure since the board of education accidentally included the expected costs of a proposed 10.9 mill levy, which was under consideration but ultimately not adopted. The board characterized this as essentially a typographical error. The resolution was submitted to the Lucas County Board of Elections on July 20.
The statutory deadline to submit the language to the board of elections was Aug. 9. On Aug. 14, the board of elections notified the district about the error in the ballot language. On Aug. 16, the board of education voted on a corrected resolution and submitted it to the board of elections that day. However, it was denied by the board of elections because the submission was past the Aug. 9 deadline. Thus, the levy would not be on the ballot. The board of education filed suit seeking a writ of mandamus compelling the board of elections to certify the levy.
The Supreme Court of Ohio affirmed the board of elections’ decision. The board of education argued that its levy should be permitted because it filed a timely resolution following statutory requirements that simply included a scrivener’s error, and, alternatively, if there was an error, it was not one that substantially affected the public due to its quick resubmission of the levy.
The court held that election rules require strict compliance unless they create “unduly technical interpretations that impede public policy in election cases.” So, a technical violation does not lead to a denial if it is simply an arbitrary requirement with no discernable impact. Strict compliance is necessary for technical rules that serve a public purpose.
The court first dismissed the argument that the board of education followed statutory requirements based on the fact it did not follow the requirements of Ohio Revised Code 5705.03(B)(3), which requires a resolution to proceed to include “the rate or estimated effective rate, as applicable, in dollars for each one hundred thousand dollars of the county auditor’s appraised value, as estimated by the county auditor.” The school district argued that this case is analogous to Stanton v. Frankel Bros. Realty Co., where the court determined that a typo changing "or" to the word "of" did not mask the intent of the resolution. The court determined that this was not an analogous case because the issue presented by Ottawa Hills was not whether a simple scrivener’s error could be disregarded but rather whether a school levy needed to contain accurate monetary estimates. The court determined that the levy estimates require strict compliance. The levy did not follow statutory requirements, and thus, its denial by the board of elections was proper.
Turning to the district’s second claim, the court determined that the error substantially harmed the public, noting the effects on the voters and potential harm to boards of elections if the court were to rule in favor of Ottawa Hills. The precedent showed that election timelines were determined to be in place to "[e]nsure that concerned voters have an adequate amount of time to obtain familiarity.” Per the court, while the district’s submission of the ballot language was only a week late, it denied the public its entire review window. Strict compliance is necessary for technical rules that serve a public interest, and thus, the board of elections was correct to deny the levy.
Additionally, the court found that the violation impacted the board of elections. Statutory deadlines create certainty for election administration officials. The court noted that if it ruled in favor of the district, it would allow future levies to be tardy, which "would create uncertainty in election administration, interfere with the timeframes for performing duties, and impose additional burdens on election officials." The district had pointed to court precedent in South-Western School Dist. Bd. of Edn v. Franklin Board of Elections, where a school board adopted a levy before the statutory deadline but did not certify the levy until after the cutoff. However, the court found that the cases were distinguishable, due to the fact that in South-Western, the levy was adopted before the statutory cutoff, which meant that it actually provided the public with more time to review the statute. This was not the case in Ottawa Hills’ scenario.
The OSBA Legal Assistance Fund submitted an amicus brief in this matter in support of the school district.
Appellate court upholds BTA’s decision affirming the value of hotel property based on the conveyance fee statement, rejecting claim that BTA failed to properly consider appraisal evidence submitted by challenger.
AHIP OH Cleveland Properties, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 2023-Ohio-3470.
https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2023/2023-Ohio-3470.pdf
Plaintiff entity AHIP acquired an Embassy Suites Hotel in 2017 as part of a real estate bulk purchase, which totaled $116.5 million. The property at issue was one of three parcels purchased by AHIP, and the conveyance fee statement for the property indicated a value of $36.32 million with $35.42 million as the price for the actual property. The following year, the county auditor valued the property at $34,303,900. Both AHIP and the Independence Local School District filed complaints against the valuation, with AHIP arguing that the value was $27.5 million, and the district arguing its value was $36.32 million.
The Board of Revisions (BOR) heard a hearing on both complaints in 2019, and AHIP submitted evidence from its own appraiser. Ultimately, BOR determined that the accurate value for the 2018 was $35.42 million, the value indicated on the conveyance fee statement. AHIP appealed to the Board of Tax Appeals (BTA), which ultimately affirmed BOR’s determination that the proper value was $35.42 million. AHIP appealed BTA’s determination, arguing that BTA’s use of a bulk sale price to determine value was improper and also challenging its rejection of its appraisal evidence and its rejection of testimony and evidence about the forecasted income, occupancy and real estate taxes related to the property.
The appellate court upheld BTA’s determination. Per Ohio Revised Code 5715.04, the appellate court “must affirm the BTA’s decision if it was reasonable and lawful.” The court pointed to the Supreme Court of Ohio precedent holding that “[t]he best evidence of the ‘true value in money’ of real property is an actual, recent sale of the property in an arm’s-length transaction.” Proffering a deed and conveyance fee statement creates a rebuttable presumption that these reflect the true value of the property, and any opponent of this evaluation “has the burden of going forward with rebuttal evidence” to challenge the valuation.
The court rejected all of AHIP’s assignments of error. First, it rejected the argument that BTA improperly used the bulk sale price to value the property, noting that the district had come forward with the actual conveyance fee statement for this individual parcel, which created the rebuttable presumption that this was the correct value of the property. The court likewise dismissed the claim that BTA failed to consider the independent appraisal evidence submitted by AHIP. Instead, the court found that BTA considered the evidence but properly concluded it did not rebut the presumption created by the conveyance fee statement. It noted that BTA found that AHIP’s appraiser’s conclusion that the hotel market had declined, resulting in a devaluation of property was not accurate, pointing to conflicting evidence in the appraisal report.
Tenth District Court of Appeals rules that HB 126’s removal of boards’ of education appeal rights on property valuation complaints do not apply retroactively to appeals of complaints filed prior to the bill’s July 2022 effective date.
New Albany-Plain Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2023-Ohio-3806.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2023/2023-Ohio-3806.pdf
This case is a consolidation of multiple appeals by eight school districts to the Ohio Board of Tax Appeals (BTA) and ultimately to the court of appeals, regarding complaints about the valuation of property within those districts. BTA dismissed all eight districts’ appeals based on its decision North Ridgeville City Schools Bd. of Edn. v. Lorain Cty. Bd. of Revision, which found that boards of education could not appeal boards’ of revisions (BOR) decisions unless they leased or owned the land in contest, even for complaints that were filed prior to July 21, 2022 (BTA No. 2022-1152, 2022 Ohio Tax LEXIS 2518 (Oct. 31, 2022)). In reaching that decision, BTA applied changes to Ohio Revised Code (RC) 5717.01 made in Ohio House Bill (HB) 126, a bill that removed boards’ of education ability to file complaints based on property they do not own or lease. The effective date of the amendment was June 21, 2022. BTA determined that because of this change in law, it lacked jurisdiction, after that date, to hear the boards’ appeals and dismissed them.
The boards in this case appealed this decision to the Tenth District Court of Appeals, arguing that North Ridgeville was wrongfully decided. Essentially, their argument was that because these appeals concerned complaints that were initiated prior to HB 126’s effective date, they should have been allowed to proceed. In other words, the question before the court of appeals was whether HB 126’s effects were retroactive. The appellate court reviewed these legal conclusions de novo.
The court began by parsing the statutory language of RC 5715.19 and RC 5717.01, a pair of statutes bound together due to RC 5717.01’s conferral of authority to appeal a decision being reliant on an entity having the ability under RC 5715.19 to file a complaint against a board of revision. So, if an entity is allowed to be issued an opinion by a board of revision, it should be allowed to appeal that decision.
HB 126 modified the language of RC 5717.01 and RC 5715.19 by limiting the circumstances under which a board of education and other political subdivisions can appeal a board of revisions determination to the BTA. Specifically, the new language reads: “a subdivision that files an original complaint or counter-complaint under that section with respect to property the subdivision does not own or lease may not appeal the decision of the board of revision with respect to that original complaint or counter-complaint.” This language would preclude the districts from appealing these decisions prospectively; however, the districts argued the language should not be applied retroactively to complaints filed before the bill’s effective date.
In North Ridgeville, BTA upheld the retroactive application of the HB 126 language in RC 5717.01, finding that the new rules applied retroactively to pending appeals on complaints that arose before the statute’s effective date of July 21, 2022. BTA pointed to language that it determined showed an intent “for the changes [to R.C. 5717.01] to be operational on the effective date of the legislation.” Because the right to a complaint and the right to an appeal each had independent statutory bases, it was not improper that legislation extinguished the appeal right even for existing complaints on the effective date. Additionally, BTA found that the school boards were incorrect to consider that the addition of the language of “complaint” and “counter-complaint” showed legislative intent for the law to not apply retroactively.
At issue here is whether BTA’s decision in North Ridgeville was erroneous, and the appellate court determined that it was. The court found that the new requirements in HB 126 should not be applied to appeals of complaints arising before the statute’s effective date. The court agreed with BTA on the effective date of the legislation but determined that retroactive application of the law was improper. The court engaged in close statutory interpretation, reading the two amended statutes together and focusing on the use of the words “original complaint” and “counter-complaint” in RC 5715.19, words that were not present prior to HB 126. The court found that while such language was commonly used prior to the bill, the use of the language in the bill must be presumed intentional. Since the appeals were filed based on complaints issued prior to HB 126’s effective date, they were not extinguished on the bill’s effective date by the new exceptions to the board’s appeal rights. The BTA’s decision was thus reversed, and the appeals were remanded to it to issue decisions.
In pair of decisions issued the same day, Fifth District Court of Appeals reverses BTA and finds that changes in HB 126 curtailing boards’ of education appeal rights on property valuation complaints do not apply retroactively to complaints filed before bill’s effective date.
Olentangy Local School Dist. Bd. of Edn. V. Delaware Cty. Bd. of Revision, 2023-Ohio-3984.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2023/2023-Ohio-3984.pdf
Lancaster City School Dist. Bd. of Edn. V. Fairfield Cty. Bd. of Revision, 2023-Ohio-3985.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2023/2023-Ohio-3985.pdf
Both cases arose from appeals filed by school districts from complaints regarding the valuation of real property within the districts. In both cases, the plaintiff boards of education filed complaints against the valuation of property. The districts filed these complaints prior to July 21, 2022, which was the effective date of Ohio House Bill (HB) 126; however, the appeals of these complaints were filed after that date. HB 126 significantly curtailed boards’ of education authority to appeal complaints made to the boards of revision. Specifically, the legislation amended Ohio Revised Code (RC) RC 5717.01 and RC 5715.19 by limiting the circumstances under which a board of education and other political subdivisions can appeal a board of revisions determination to the board of tax appeals (BTA). Specifically, the new language reads: “a subdivision that files an original complaint or counter-complaint under that section with respect to property the subdivision does not own or lease may not appeal the decision of the board of revision with respect to that original complaint or counter-complaint.”
In each case, BTA dismissed the district’s appeal, finding that it lacked jurisdiction to hear the appeals due to HB 126’s changes. BTA relied on its previous decision in North Ridgeville City School Bd. of Edn. v. Lorain Cty. Bd. of Revision, which upheld the retroactive application of HB 126 and found that the new rules could be applied retroactively to pending appeals on complaints that arose before the statute’s effective date of July 21, 2022. The districts appealed this decision with multiple assignments of error, but the essential question was whether North Ridgeville was rightly decided and whether HB 126’s requirements applied retroactively.
The appellate court sided with the school districts and followed much the same approach as the Tenth District in New Albany (see previous summary) to determine that North Ridgeville was wrongfully decided. The court conducted a textual analysis of the new statutory language and read the new language as a whole. The court explicitly followed the textual analysis conducted by the Tenth District, focusing on the use of the terms “complaint” and “counter-complaint” in the new versions of the statutes. Like the Tenth District, the court determined that complaints filed prior to the bill’s effective date were unaffected by the legislative changes. The court also referenced the Third District’s analysis in Marysville; specifically that “if the language used in the newly enacted prohibition on appeals was phrased in the past tense, such as ‘filed’ or ‘has filed’, that may have demonstrated a legislative intent that the amended statute be applied to appeals stemming from complaints or counter-complaints filed prior to the effective date of the statute. In the absence of such past-tense verbiage, however, the use of the present tense ‘files’ indicates an intention that statute only be applied prospectively.” The court also echoed the principle that statutes are generally applied prospectively absent an explicit statement that they should be applied retroactively.
U.S. 6th Circuit upholds Title IX liability for “before” and “after” claims based on plaintiff’s evidence of widespread sexual misconduct in the district and district’s failure to properly address threats and harassing behavior committed against the victim by students.
S.C. v. Metro. Gov't of Nashville & Davidson Cnty., 86 F.4th 707 (6th Cir. 2023).
https://cases.justia.com/federal/appellate-courts/ca6/22-5125/22-5125-2023-11-15.pdf?ts=1700071450
In April 2017, plaintiff S.C. was a student at a high school within the Metropolitan Nashville Public School District (MNPS). During that month, she was video recorded by a student while she was engaged in sexual activity with another student at school. The student who recorded the encounter uploaded the video to multiple online platforms, and the dissemination of the video caused other students to harass S.C.
District officials, including the school principal, learned of the incident and brought S.C. and her mother in to discuss the incident at a meeting. When other students learned of the meeting, they reportedly threatened S.C. and her family. At that meeting, which was audio recorded, S.C. reported to district officials that neither the sexual encounter nor the recording were consensual. She specifically stated that she “wanted to stop both of them,” but couldn’t “get the urge to say ‘no.’” She later testified that by “urge,” she meant “courage.” Based on this report, S.C. was taken to meet with law enforcement, a meeting which was not recorded. The police officer reportedly dismissed her assertion that the encounter was nonconsensual as well as her reports of being threatened by other students. Instead, the officer reportedly accused her of criminally participating in the creation of child pornography.
S.C. and her family then had another meeting with the principal, which was not recorded. The nature of the conversation was disputed. S.C. and her mother would testify that she again reported to the principal that the sexual activity was nonconsensual, while the principal stated that she actually reported that it was consensual. S.C. also stated that she reported the threats and harassment to the principal at this meeting and that she gave the principal a list of the students who engaged in the conduct, while the principal categorically denied having been informed about this conduct or receiving a list. S.C. was suspended from school for three days at the end of this meeting. S.C. entered an in-patient treatment facility at the end of her suspension and, because her mother did not feel comfortable with her returning to the school, she finished the year with remote instruction. The family moved to a different county for the next school year.
S.C. and her family sued the district, raising three claims: a Title IX “before” claim, alleging deliberate indifference by the district before she was assaulted based on “widespread, gendered misconduct” within the district; a Title IX “after” claim, alleging deliberate indifference by MNPS during the school’s investigation into her harassment, based on its failure to address the harassment and threats by other students; and a 14th Amendment equal protection claims brought under 42 U.S.C. § 1983. The before claim was dismissed on summary judgment, but the remaining claims proceeded to a bench trial, at which the district was found liable on the Title IX “after” claim but not liable on the Sec. 1983 claim. Both parties appealed.
The 6th Circuit upheld the Title IX “after” claim verdict and reversed the grant of summary judgment to the district on the “before” claim. The court recounted its previous decision in Doe v. Metro. Gov’t of Nashville & Davidson Cnty., 35 F.4th 459 (6th Cir.2022), which came in the wake of another 6th Circuit decision that curtailed a university’s liability in both “before” and “after” claims in situations where there was only one incident of sexual misconduct against a victim. In Doe, the court found that a public school can be found to be deliberately indifferent on a first instance of alleged sexual misconduct if the school “remains indifferent to severe, gender-based mistreatment played out on a ‘widespread level’ among students.” Doe also informed the appellate court’s approach to the “after” claim, as it found that “a high school’s elevated disciplinary authority, supervision, and control over students is distinct from the university context and therefore the same-victim requirement does not apply to ‘after’ claims against schools.”
Turning first to S.C.’s “before” claim, the court found that S.C. met the requirements for prevailing on a “before” claim. In fact, the plaintiff in the Doe case was a student at the same school as S.C., and the court noted “thousands” of reported incidents of sexual misconduct at the school. The court affirmed that these facts were pervasive enough to impart liability to the district.
On the “after” claim, the court again ruled in favor of S.C., finding that school officials were deliberately indifferent to the threats and harassment experienced by S.C. from students at the school after the video became widely spread. The standard for these claims is whether the district officials’ “response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.” The court found fault with the fact that once S.C. reported the incidents of threatening and harassing behavior to district leadership, its only response was to direct her to the police, who did nothing. The court noted that much of the behavior occurred during school hours. The district attempted to argue that much of the harassing behavior took place on social media, where it lacks control to intervene; however, the court refuted this and noted that the district still has the power to take action against students regardless of where the threats occurred. It also rejected the district’s argument that the threats were made against S.C.’s family as a whole, which meant that they were not gender-based. The court noted that even the threats against her family were retaliatory in nature for S.C.’s cooperation into a sexual assault investigation, placing it squarely in the ambit of Title IX.
The court remanded the Sec. 1983 for further proceedings at the trial court level based largely on procedural issues and confusion as to what specifically was raised and resolved at the trial court level, particularly in the wake of how the court’s intervening opinions affected the claim.
TORT LIABILITY — SOVEREIGN IMMUNITY
Supreme Court of Ohio upholds denial of summary judgment to K-9 police officer whose canine partner bit a guest at a party at the officer’s home, finding that whether the officer was acting in the scope of his employment was a question of fact for determination by a jury.
Harris v. Hilderbrand, Slip Opinion No. 2023-Ohio-3005
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2023/2023-Ohio-3005.pdf
Dustin Hilderbrand is a K-9 officer for the Belmont County sheriff’s office partnered with the canine Xyrem. Xyrem lived with Hilderbrand and was in his home when not on duty. In 2019, Hilderbrand was hosting a party at his house, which Allison Harris attended. During the party, some witnesses stated that Hilderbrand was asked to demonstrate Xyrem’s abilities by showing how he responded to various commands. One action was the dog barking and being aggressive when he heard the phrase "Belmont County Sheriff's Office." After Hilderbrand issued this command, Xyrem’s behavior changed, and he became on edge the rest of the night, including lunging at the door on one occasion. Hilderbrand had allegedly never used that phrase when the dog was around guests before. Despite the dog’s agitation, Hildebrand removed his shock collar after a guest at the party requested to wear it in order to feel the shocks. During that demonstration, Xyrem attacked Harris, and he was unable to be stopped because Hilderbrand was unable to shock Xyrem to dissuade the behavior.
Harris sued for various claims including negligence and a claim brought under Ohio Revised Code (RC) 955.28(B), a statute that creates strict liability for the harboring of an animal who bites another person. Hilderbrand contests that he was entitled to immunity for both claims under RC 2744.03(A)(6)(a), which provides immunity to political subdivision employees. An exception to this immunity applies if the actions causing the injury were manifestly outside the scope of the employee’s work. What is within the scope of employment is a question of fact, with summary judgment only being appropriate if reasonable minds could only reach one conclusion.
Harris argued that the act of hosting a party at one’s home was clearly not within the scope of an officer’s employment. The trial court disagreed and granted partial summary judgment to Hilderbrand because having the canine companion at one’s home is an essential part of the job for a K-9 officer. As such, applying strict liability to the conduct of harboring an aggressive dog would place an undue burden on the officers who were required by their jobs to have their canine partners live with them in their home. However, the court did not grant Hilderbrand summary judgment on his negligence claim, finding reasonable minds could disagree if his actions involving Xyrem could be considered negligent.
Hilderbrand appealed on the decision to not grant summary judgment in his favor on the negligence claim. Harris filed a cross-appeal contesting the granting of summary judgment on the basis that reasonable minds could disagree as to whether having the dog at the party was in the scope of Hilderbrand’s employment. The appellate court sided with Hilderbrand on both counts due to the fact the court did not consider him negligent simply for having the dog at the party. The court further determined that having the dog present was within the scope of his work, as police dogs require socialization with people at the officer’s home to ensure they do not react poorly to people on the job. The court declined to address the strict liability claim because of the lack of a final, appealable order and the lack of a timely filed notice of cross-appeal in the court of appeals.
Harris appealed to the Supreme Court of Ohio. The court reversed the appellate court’s decision regarding the negligence claim. The court found that while having the dog present was clearly within the scope of Hilderbrand’s employment, there was an actual question of negligence regarding the handling of Xyrem. Hilderbrand had demonstrated a command that made Xyrem aggressive, and then proceeded to remove the shock collar that effectively controlled his actions. Neither of these were required by his employment as an officer. Thus, while having Xyrem at the party was unquestionably within the scope of Hilderbrand’s employment, his actions regarding the dog may not have been. So reasonable minds could conclude that the actions that led to the injury were outside the scope of his employment and thus not entitled to immunity. The court thus remanded the matter to the trial court for further proceedings. The court did not address the strict liability claim due to the lack of a final appealable order.
The OSBA Legal Assistance Fund and other organizations submitted an amicus brief in this matter in support of immunity for political subdivision employees whose jobs involving working with service dogs and are housing the dogs in their homes.
U.S. 7th Circuit rules in favor of transgender students’ right to use the restroom that aligns with their gender identity.
A.C. v. Metropolitan School District of Martinsville, 75 F.4th 760 (7th Cir.2023)
This matter arose out of two cases at the district court that were consolidated by the 7th Circuit Court of Appeals on appeal as they raised similar questions of law. The plaintiffs are three transgender boys, one age 13 and the others 15-year-old twins, all three of whom were denied access to the restroom aligned with their gender identity. The first case involved 13-year-old A.C., who was denied access to the boys restroom due to his middle school’s policy of requiring students to use the sex-segregated restroom corresponding to the sex assigned to them at birth. Under the policy, the school would only permit A.C. to use the girls restroom or the unisex restroom.
The second case involved the 15-year-old twins, in which the plaintiff students were informally allowed to use the boys restroom by their peers who did not make complaints; however, the school's employees privately reprimanded them. This was due to the school's policy of only allowing transgender students to use the restroom aligning with their gender identity after the student has begun to receive gender-confirming surgical change. This effectively prohibits the use of the restroom aligning with these students’ gender identity, as Indiana has a state law prohibiting gender-affirming surgery prior to a child's 18th birthday.
In both cases, the plaintiffs were granted preliminary injunctions by the district court, which required the schools to allow the students to use the restrooms corresponding with their gender identity. Both decisions relied on an earlier 7th Circuit’s opinion in Whitaker ex rel. Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Edn., 858 F.3d 1034 (7th Cir.2017), which the defendants argue is no longer a valid opinion due to the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. ___ (2020).
The 7th Circuit upheld the district’s court’s decision in favor of the plaintiff students, finding that Whitaker’s approach applied to this case. Whitaker involved a similar situation where a transgender boy was denied restroom use due to a school policy. The policy required that the boy present an amended birth certificate in order to use the restroom aligning with his gender identity, an impossible task due to the fact that Wisconsin had a state law allowing only transgender individuals who had received gender-affirming surgery to change their birth certificate in this way. Guided by Price Waterhouse v. Hopkins, the court found that a policy that requires an individual to use a nonconforming restroom was a violation of Title IX. Thus, in order for the restriction to be proper, the district needed to produce evidence that other students’ privacy rights were violated, something that did not occur in Whitaker, as evidenced by the fact that none of the boy’s peers protested his use of the boys’ restroom.
In this case, the districts argued that the holding in Whitaker was compromised because in Bostock, the U.S. Supreme Court explicitly refrained from addressing restroom issues due to the “difference between bathroom policies and employment decisions.” The districts argued that this reflected a position that Title IX does not extend to transgender students in the restroom context. However, the circuit court found that this argument was flawed. The Supreme Court merely meant to focus on the question at hand in Bostock “which did not involve gender-affirming bathroom access.”
The school districts further argued that Whitaker failed to consider 20 U.S.C. Sec. 1686, a section of Title IX, which allows for schools to have separate facilities for different sexes. The court found that this argument was flawed, however, as in neither Whitaker nor the case at hand do any of the parties contest the policy of the schools to have segregated restrooms. Instead, the plaintiffs contested this segregation not taking into account their gender identity. So, while the districts argue that Whitaker makes it impossible to have truly separate facilities for the sexes, the court took the position that this idea requires a narrow view of sex. Specifically, the court pointed out that the term “sex” in Title IX does not necessarily refer to biological conditions. The court went on to note that this biological view of restroom segregation fails to consider the existence of intersex individuals.
Finally, the court examined the districts' claim that the students would likely not have had success based on the merits since this case concerns locker rooms, where transgender students may be required to change in the open. The court disagreed, as it concluded that the transgender students would simply use the stalls in the locker room as they do in the restroom. Thus, the two are indistinguishable.