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In this issue: Arbitration • ADA • Collective Bargaining • Desegregation • Discrimination • Discrimination — Age • Discrimination — National Origin • Discrimination — Race • Family Medical Leave Act (FMLA) • First Amendment — Retaliation • Open Meetings • Qualified Immunity • Search and Seizure • Sexual Abuse and Harassment • Sovereign Immunity • STRS • Student — Discipline • Sunshine Law • Teacher — Contracts • Teacher — Suspension • Title IX
Grievance denied because union failed to comply with the contractual requirements.
In the matter of arbitration between Cambridge City School District Board of Education and Ohio Association of Public School Employees (OAPSE/AFSCME Local 4/AFL/CIO) and its Local 132, Case No. 53 390 00476 11, Arbitrator Charles W. Kohler (July 16, 2012)
Issue: Whether the grievance was improperly filed and whether the board violated the contract.
Barb Hardesty was an educational aide for the district’s high school. During the 2010-2011 school year, she was assigned to the Corrective Learning Center (CLC), which was used as an in-school restriction for students. Students were sent to the CLC classroom for violating the school’s code of conduct. Due to financial difficulties, the district decided to change the in-school restriction program for the 2011-2012 school year and would no longer place students in the CLC classroom. As a result, Hardesty’s position was eliminated.
The district informed Hardesty that her position would be eliminated at the end of the school year since students would no longer be placed in the CLC classroom. Hardesty informed the district that she wanted to exercise her contractual bumping rights and bump into an educational aide position at the middle school. The district bumped Hardesty into the educational aide position at the middle school at the beginning of the 2011-2012 school year. Hardesty’s duties included providing assistance in a special education classroom and escorting a student to the high school for tutoring.
During the 2011-2012 school year, high school students who received in-school restrictions were required to sit in the hallway outside of the administrative offices, but no school employee was assigned to monitor them. Hardesty believed the in-school restriction program was eliminated after being told that her position in the CLC classroom was abolished. While in her new position, Hardesty heard staff members discuss the new procedure used for in-school restriction. She became upset and spoke to the union president and school principals about the procedure used at the high school. Hardesty then filed a grievance, but it was denied. After the union’s grievance was denied, it “submitted a demand for arbitration.” The district stated that it denied the grievance because it was not timely filed.
The union argued that the district informed Hardesty that the program was being eliminated at the end of the 2010-2011 school year. Therefore, she had no reason to believe the program still existed. The union also noted that Hardesty had limited opportunities to discover that the in-school restriction was not eliminated since she was not working in the high school. In addition, the union alleged that the grievance was filed within 15 calendar days after Hardesty learned the program existed. The district argued that the grievance would be waived if it was not filed within 15 calendar days from when the act occurred that gave rise to the grievance.
Award: For the district. Hardesty went to the high school at least twice a day while escorting a student to tutoring. In addition she could have observed the students sitting in the hallway when she went to the office or she could have asked the office personnel. Hardesty also testified that she discussed the continued use of the in-school restriction program with the local union president before the grievance was filed. Hardesty did not provide a reasonable explanation regarding her failure to file the grievance until eight weeks after the start of the 2011-2012 school year. The union failed to comply with the contractual requirements for filing the grievance.
Thanks to Patrick J. Schmitz, Esq., Scott Scriven & Wahoff LLP, Columbus, for submitting the above arbitration decision.
New Mexico court affirms district court’s finding that teacher was not ‘disabled’ under ADA and refusal to apply the ADAAA retroactively.
Latham v. Bd. Of Edn. Of the Albuquerque Pub. Sch., 10th Cir. No. 11-2217 (July 12, 2012).
http://www.ca10.uscourts.gov/opinions/11/11-2217.pdf
Terry Latham worked as a substitute teacher in the district for approximately 15 years. In 2008, the district ordered Latham to stop bringing her registered service dog, Bandit, to school with her during her teaching assignments. Claiming that Bandit’s presence was a substantial aid to her health in light of her chronic asthma, Latham sued the district, alleging that it had discriminated against her based on her disability. The district court entered summary judgment in favor of the district, finding that Latham was not disabled under the Americans with Disabilities Act (ADA). Latham appealed.
On appeal, Latham argued for the first time that the district court should have followed a state-specific standard when evaluating whether she was entitled to protection. The court of appeals held that because Latham argued before the district court that a version of the federal ADA standard applied to her claim, her new argument on appeal that a different, state-law standard applied was waived.
Latham also argued on appeal that the New Mexico Supreme Court would have looked to the ADA Amendments Act of 2008 (ADAAA) for guidance, thereby expanding the district’s liability, even though all conduct related to her claim occurred before ADAAA’s effective date. No New Mexico court had addressed the question, so the court of appeals made an “Erie-guess” and predicted that the New Mexico Supreme Court would hold that ADAAA did not apply retroactively as it would look to the federal courts’ decisions that adopted the view that ADAAA did not apply retroactively. As a result, the court of appeals affirmed the judgment of the district court.
Ohio court upheld arbitration award allowing school board to evaluate teachers outside the evaluation schedule set forth in collective bargaining agreement.
Field Local Teachers Assn., OEA/NEA v. Field Local Sch. Dist. Bd. Of Edn., 2012 Ohio 862.
http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2012/2012-ohio-862.pdf
The collective bargaining agreement (CBA) for teachers in the Field Local (Portage) school district set forth an evaluation schedule, but contained no provisions addressing the process by which teachers obtained continuing contracts. At the start of the 2008-2009 school year, the superintendent issued a memorandum stating his intention to evaluate teachers eligible for continuing contract, regardless of whether the teacher was due to be evaluated under the schedule outlined in the CBA. The union filed a demand for arbitration and the arbitrator held that the CBA did not prohibit the board from evaluating teachers outside the evaluation schedule set forth in the CBA. The union filed a complaint in the trial court to vacate the arbitration award. The trial court affirmed the award and the union appealed.
On appeal, the court of appeals affirmed the trial court’s judgment. The appellate court rejected the union’s argument that by specifically excluding RC 3319.111 (the evaluation statute) in the CBA, the CBA also excluded the use of the teacher evaluation procedures delineated in RC 3319.11 (the tenure statute). Instead, the court held that the arbitrator’s decision should not have been vacated for several reasons. First, because the CBA did not specify the substantive requirements or the procedures by which a teacher moved from being under a limited contract to a continuing contract, RC 3319.11 necessarily applied to govern all matters in the tenure procedures, and as a result, the statute was necessarily incorporated by reference into the CBA. Second, the repeated references in RC 3319.11 to RC 3319.111 – which requires evaluation before the board could discontinue a teacher’s contract – made evaluation an intrinsic part of RC 3319.11, such that those references could not be excised.
The court of appeals held that the arbitrator’s award did not “fail to draw its essence from the CBA,” nor was it unlawful, arbitrator or capricious. Because the arbitrator did not exceed his authority, the court held that the trial court properly denied the union’s request to vacate the arbitration award.
North Carolina school district has evidentiary burden of proving that updated student assignment plan is consistent with desegregation orders.
Everett v. Pitt Cty. Bd. of Edn. 4th Cir. No. 11-2000 (May 7, 2012)
www.ca4.uscourts.gov/Opinions/Published/112000.P.pdf
In the 1960s, a North Carolina court determined that the school board was operating a racially segregated dual school district in violation of equal protection laws. The court approved desegregation plans that were designed to “eliminate the racial identity” of schools in the district. In 2006, parents in the district filed a complaint with the U.S. Department of Education’s Office of Civil Rights objecting to the school board’s use of race in its student assignment plan. The plan used satellite school districts and a racial balance ratio in an effort to reduce the racial isolation of elementary schools in the school district. In March 2008, the school board settled the complaint by amending its policy to replace racial balancing with a definition of “student diversity” that balanced a number of factors, including student achievement, socio-economic status, and ethnic, racial and educational sub-groups. The parents filed a motion requesting denial of the revised policy, arguing that it violated the district court’s existing desegregation orders.
The district court denied the parents’ motion, finding that the parents did not demonstrate a likelihood of success on the merits and that granting the motion would result in irreparable harm because of the “disruption to the administration” of the schools in the school district. The parents appealed.
On appeal, the court ruled that the district court committed legal error by failing to apply a presumption that any racial disparities in the assignment plan resulted from the school board’s prior unconstitutional conduct in operating a racially segregated school district. Given that the school district had not attained “unitary status,” the evidentiary burden should have been on the school board to prove that the assignment plan was consistent with the desegregation orders. The appellate court held that the district court erroneously placed the burden on the parents. As a result, the court vacated the district court’s order and remanded for reconsideration.
Race-based legislative restriction on student’s ability to transfer between districts found to be unconstitutional in violation of equal protection clause.
Teague v. Arkansas Bd. of Edn., W.D. Ark. No. 10-6098 (June 8, 2012)
http://lawprofessors.typepad.com/files/arkansas_schoolchoicelaw.pdf
Arkansas had a statute that included the following provision: “no student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district.” This language was intended to permit the free transfer of students within its school districts provided that the transfers did not adversely impact the racial make-up of the school district receiving the transferring students. The parents of several white children attempted to enroll their children in a district where 95% of the students were white. Because this percentage exceed the percentage of white students in the parents’ home district (60%), the students were not permitted to transfer. The parents filed a lawsuit contending that the race-based restriction on the ability of students to transfer between school districts was unconstitutional because it violated the equal protection clause.
The court held that the state had a compelling interest in its attempts to avoid racial imbalance in public schools. However, the legislation failed the second test of constitutionality because it was not narrowly tailored. The district contended that the manner in it they employed racial classifications was necessary to achieve their stated ends. However, the court found that to meet the definition of “narrowly tailored,” the district’s policy must allow for an individualized review of each student to determine whether his or her transfer would contribute to the overall goal of the district. A decision to deny the transfer could not be based solely on a student’s race and must have consideration of their individual circumstances. The court found that the legislation violated the equal protection clause and required the state to employ a “more nuanced, individualized evaluation of school and student needs, which, while they may include race as one component, may not base enrollment or transfer options solely on race.” As a result, the court ordered the district to permit the transfer of the children.
This case has been appealed to the United States Court of Appeals for the Eighth Circuit.
District court granted school district’s motion for summary judgment after employee fails to state a claim for race and gender discrimination.
Senu-oke v. Dayton Pub. Sch., S.D. Ohio No. 3:11-cv-79 (July 30, 2012).
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FDCO%2020120731A25.xml
Helen Senu-Oke is an African-American female who was hired as an associate director of special education by the Dayton City Board of Education in 1996. After she was denied a promotion in 2003, she filed a lawsuit, which she lost. In 2009, Senu-Oke submitted a request to use vacation leave during an extremely busy part of the school year. The administration disapproved the request for vacation, but Senu-Oke took the vacation anyway. The superintendent recommended that the board terminate Senu-Oke’s contract, which the board voted unanimously to do.
In 2010, Senu-Oke filed another claim against the board of education, alleging that she was discriminated against on the basis of race and gender. The only contested element in the case was whether the district subjected similarly situated persons outside the protected class to adverse action. Senu-Oke failed to point to any Caucasian male treated more favorably than she.
Senu-Oke argued that a jury could find that she was being treated differently in terms of her mileage requests and her vacation denial. With respect to her mileage requests, Senu-Oke sought reimbursement for mileage for round trips when she was not actually completing a round trip. There is no evidence that other Dayton City Schools employees submitted false mileage reports in this manner.
With respect to the vacation requests, Senu-Oke claimed that a jury could infer that the denial of her vacation request was racially motivated. However, there was no evidence that explained why the other vacation requests Senu-Oke made in 2009 were approved if the denial of the specific request in question was somehow racially motivated. Accordingly, the court found that Senu-Oke failed to state a claim for race and gender discrimination. The court also rejected Senu-Oke’s claim for retaliation since there was no causal link between the protected activity and the adverse action. As a result, the court granted the district’s motion for summary judgment.
New York court determines teacher failed to establish discrimination.
Robinson v. Roosevelt Union Free Sch. Dist., E.D. NY No. 10-CV-834 (SJF)(ETB) (May 31, 2012).
Diane Robinson was previously employed by the Roosevelt Union Free School District as a teacher. She suffered various medical conditions, which made physical activity difficult. After having surgery, Robinson’s doctor sent a note to the district regarding her ailments. Robinson alleged that after her first surgery she requested to be placed in a classroom near the first floor entrance, but was placed in a classroom located in the far wing. She complained that she had to teach classes with old textbooks, but believed that similarly situated and younger teachers without disabilities received newer textbooks. Robinson informed the school that she physically could not teach certain classes. She requested classroom assistants, but the district rejected her request.
In October 2006, Robinson filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights alleging age and disability discrimination, as well as retaliation. In 2007, EEOC informed Robinson that it was unable to conclude that any violations occurred, but did inform her of her right to sue. EEOC sent a “Notice of Intent to Reconsider” to Robinson in July 2007 and rescinded its February 2007 dismissal. After Robinson amended her complaint, EEOC found “reasonable cause” to believe that the district failed to accommodate Robinson and retaliated against her. However, the U.S. Department of Justice informed Robinson that it would not file suit, but provided her with a right to sue letter. Robinson filed a complaint against the district and some of its employees alleging discrimination on the basis of disability and age, as well as other discriminatory conduct.
The district court determined that Robinson failed to establish a prima facie case of age discrimination, and did not establish that she was disabled or suffered an adverse employment action because of a disability. In addition, she did not establish any causal connection between her complaint and any adverse employment action. Having a limited ability to perform certain tasks was not sufficient for a reasonable juror to determine that Robinson had a substantial limitation on her major life activities.
The court dismissed a majority of Robinson’s claims because she did exhaust her administrative remedies. Lastly, the court determined that Robinson did not establish that she was treated differently than similarly situated individuals.
California court grants district’s motion for summary judgment because teacher did not have requisite credentials for position.
Hodge v. Oakland Unified Sch. Dist., N.D. Cal. No. C 09-04719 RS (May 29, 2012).
http://scholar.google.com/scholar_case?case=18130883699729007279&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Yvonne Hodge was a 55-year-old African-American teacher employed by the Oakland Unified School District to teach autistic children during the extended school year (ESY). She was certified to teach “non-severely handicapped” (NSH) students, but not severely handicapped (SH) students. She did not have a Special Education Limited Term Assignment Permit, which was required for NSH-credentialed teachers to teach SH students on an emergency basis.
In 2009, the district revamped its credentials process in order to avoid “mis-assignments.” Hodge contacted the district to inquire about an open teaching position, but was told the program was not accepting applications from those who did not have SH credentials. She did not apply for the 2009, 2010 or 2011 ESY program although she alleged that the district did not hire her in 2009 or 2010 for the ESY program, but hired teachers with equal or less credentials.
Hodge claimed she was harassed and “relieved of certain duties” after making complaints. Subsequently, Hodge filed a complaint alleging race and age discrimination, as well as retaliation. She also alleged that her First Amendment rights were violated. The district court granted the district’s motion for summary judgment.
The court noted that to establish a prima facie case of discrimination, Hodge had to establish that “(1) she was a member of a protected class or at least 40 years old; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) that persons outside her protected class or younger than her, with equal or lesser qualifications, were given more favorable treatment.”
The court found that Hodge was a member of a protected class because she was over the age of 40 and African-American. This provided her protection under Title VII and the Age Discrimination in Employment Act (ADEA). The district argued that she was not qualified for the ESY program and did not apply meaningfully. The court determined that Hodge was qualified for the position because the district did pursue individuals with her qualifications, and she did inquire about the position.
As a result, the court ruled that Hodge established a prima facie case under Title VII and ADEA. The burden then shifted to the district to prove a legitimate nondiscriminatory reason to rebuff Hodge’s inquiry for the position. The district proved that it had a legitimate nondiscriminatory reason for not hiring Hodge because the district did not accept applications from those who lacked SH credentials. The district needed teachers with SH or SH and NSH credentials, but Hodge only had NSH credentials. Hodge did not produce evidence of retaliation. Finally, the court found there was no indication that Hodge’s actions were those of a private citizen and not as a public employee. Therefore, the court dismissed Hodge’s First Amendment claims.
District court denies motion for summary judgment where a reasonable jury could conclude that principal discriminated against teacher on the basis of age.
Weeden v. Northwest Local Sch. Dist Bd. of Edn., S.D.Ohio No. 1:10-cv-644 (Feb. 3, 2012).
http://law.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2010cv00644/141024/32
Kimberly Weeden began teaching full-time for Northwest Local (Montgomery) in the 2007-2008 school year. She was 50 years old at the time. During her first year, she received positive evaluations. After her first year, Weeden transferred to a different elementary school in the same district. Prior to the start of the subsequent school year, the principal of the new school met with Weeden and mentioned that she had “heard through the grapevine” that Weeden had problems with other teachers at her former school. When questioned, the principal could not identify the basis for her belief that Weeden had difficulty getting along with the other teachers. During the 2008-2009 school year, Weeden received poor evaluations from the principal. Based on her evaluations and observations of Weeden, the principal intended to recommend to the superintendent that Weeden be nonrenewed. Weeden chose to submit a letter of resignation rather than be nonrenewed, and filed suit against Northwest Local alleging age discrimination. Northwest Local moved for summary judgment.
The court refused to grant summary judgment in this case because material issues of fact remained in genuine dispute. The court found that Weeden put forward evidence on each of the elements of her prima facie case. She was over 40 years of age, suffered an adverse employment action, was qualified for her teaching position and was replaced by a younger worker.
Although Northwest Local argued Weeden was not subjected to an adverse employment action, the court found that Weeden provided sufficient evidence for a reasonable jury to conclude she suffered an adverse employment action. Although she resigned her position, she did so only after she was told that the principal would recommended nonrenewal of her teaching contract. The court found that an employee who resigns only after reasonably concluding her termination is imminent could be deemed to have suffered an adverse action.
As to whether Weeden was qualified for her teaching position, Northwest Local argued that she was not qualified based on the principal’s evaluation of her performance. The court concluded that Weeden met her prima facie burden of proving that she met the objective qualifications for the position, including her education degrees and teacher certifications.
The court found that a reasonable jury could conclude that the principal was predisposed or biased against Weeden before she began teaching at the elementary school. As a result, the district’s motion for summary judgment was denied.
DISCRIMINATION — NATIONAL ORIGIN
Seventh circuit holds that position reassignment did not qualify as an “adverse employment action” in violation of Title VII of the Civil Rights Act.
Dass v. Chicago Bd. of Edn., 7th Cir. Nos. 10-3844 & 11-1104 (April 12, 2012).
http://caselaw.findlaw.com/us-7th-circuit/1598754.html
Veronica Dass was born in India and taught fifth grade for Chicago Public Schools. In 2006, Dass lost her teaching position due to budget constraints. She grieved her termination, won and was reinstated and assigned to teach seventh grade. In December 2006, Dass requested and received medical leave. In spring 2007, the board nonrenewed Dass’ teaching contract. Dass sued the district, alleging that her reassignment to the seventh-grade class and the board’s decision to nonrenew her were acts of discrimination based on Dass’ national origin in violation of Title VII of the Civil Rights Act.
In order to prevail on her claims, Dass was required to prove that she suffered a material adverse employment action. The school district alleged that the decision to reassign Dass to teach the seventh grade was not an adverse employment action. The court held that an adverse employment action must “materially alter the terms and conditions of employment” and be more than a “mere inconvenience or an alteration of job responsibilities.” The court acknowledged “not everything that makes an employee unhappy is an actionable adverse action.”
Although Dass claimed that the reassignment reduced her career prospects by preventing her from using her skills or experience, the court disagreed. The court found that Dass’ subjective belief that the seventh grade was “so much more difficult to teach than the third grade” was not sufficient enough to make the assignment a materially adverse employment action.
The court acknowledged that the board’s decision to nonrenew Dass was a material adverse employment action, but held that Dass did not show that discrimination was the motivating factor behind the adverse employment action. The closest thing that Dass had to discriminatory intent was a board member’s alleged comment that Dass should look for another job on the North Side “where most of the Indians go.” However, the court found that the comment, made more than 10 months before the recommendation that Dass be nonrenewed, was not contemporaneous to or causally related to the discharge. Additionally, the court found that no rational juror could find that the nonrenewal was because of Dass’ national origin, even if the comment had been closer in time. As a result, the court held that the comment was insufficient to point directly to a discriminatory reason for Dass’ nonrenewal and upheld the lower court’s decision to grant the district’s motion for summary judgment.
Colorado district is not liable for race discrimination when there was no evidence of racial bias or pretext.
Jaramillo v. Adam Cty. Sch. District 14, Co. App. No. 11-1160 (June 12, 2012)
http://www.courthousenews.com/home/OpenAppellateOpinion.aspx?OpinionStatusID=39135
Judy Jaramillo, a Hispanic female, was employed as the only Hispanic principal at a school where more than 70% of the students were Hispanic. In 2008, the district contemplated several controversial policy changes, including implementing an English Language Learners policy and operating the school on the same academic year as the other schools in the district. The policy proposals were the topic of a board public session. Before the meeting, the assistant superintendent received a copy of an email about a planned teachers’ meeting that contained false and inaccurate information. The assistant superintendent met with Jaramillo to ask for the name of the person who had misinformed her of the specifics of the policy. Jaramillo refused to provide the name. The assistant superintendent gave Jaramillo three opportunities to provide her with the information. After Jaramillo refused to provide the name, the assistant superintendent placed Jaramillo on paid administrative leave and recommended Jaramillo’s termination. The board accepted the superintendent’s recommendation.
Jaramillo filed a complaint against the board, alleging that the board discriminated against her because of her race. The board proffered insubordination as its legitimate nondiscriminatory reason for the adverse action. The district court rejected the board’s argument, finding that the charge of insubordination appeared to be unfair and unreasonable, especially in light of Jaramillo’s years of performance as a principal with the district. However, the district court found that there was no evidence of racial bias or pretext in the case.
The court of appeals agreed. Nothing in the testimony of the board members, other than vague references to institutional racism and “past experience,” suggested evidence of discriminatory intent by any of the decision makers. Absent evidence to the contrary, the court presumed that the proceedings were fair, regular, and on the merits. As a result, the court of appeals affirmed the decision of the trial court.
Sixth circuit affirms lower court’s holding that district did not discriminate on the basis of race when it nonrenewed a deficient employee.
Hopkins v. Canton City Bd. of Edn., 6th Cir. No. 10-3876 (April 24, 2012)
http://law.justia.com/cases/federal/appellate-courts/ca6/10-3876/10-3876-2012-04-24.html
Cynthia Hopkins, an African-American, was hired into the Canton City School District as a math teacher in 1997. Four years later, she was promoted to a coordinator position at the district’s school for students in the juvenile justice system. During her third year in the coordinator position, the teachers union filed an unfair labor practice against the district, alleging that Hopkins interfered with attempts to engage bargaining unit members in protected activities. Hopkins apologized and the union withdrew the complaint. She also was criticized during this time for using unauthorized evaluation methods and failing to follow district protocol on a number of different issues. Despite these circumstances, Hopkins received a positive evaluation and her contract was renewed for a subsequent year.
Hopkins encountered further issues with the teachers union with regard to one of the teachers she supervised. Around the last day of school, Hopkins gave gifts to all of her staff, including manicure sets. When the male teacher complained about receiving the manicure set, the district placed Hopkins on paid administrative leave. Hopkins received a letter from the superintendent describing her intention to investigate the allegations about Hopkins’ inappropriate behavior and use of unauthorized evaluation methods.
While she was on administrative leave, the superintendent ordered Hopkins to sign a prewritten resignation letter. Hopkins refused and referred the matter to her attorney. During negotiations between Hopkins’ attorney and the district regarding the potential resignation, the district reassigned Hopkins to serve as an administrative assistant at the middle school. The following year, Hopkins’ contract was nonrenewed. Shortly after the nonrenewal, Hopkins filed a discrimination charge with the Ohio Civil Rights Commission, complaining the district chose not to renew her contract because of race.
According to Hopkins, the statistical disparities in the district’s racial composition, the hiring of less qualified Caucasian candidates and the district’s usual efforts to negate her positive evaluations were signs of racial discrimination. The district cited deficiencies in Hopkins’ performance and qualifications as the cause of her poor evaluations, the nonrenewal of her contract and the decision to hire others for administrative openings. The lower court granted summary judgment in favor of the district and Hopkins appealed.
On appeal, the court affirmed the lower court’s decision. The court acknowledged that there was lack of similarly situated administrators facing the teacher’s disciplinary circumstances, little evidence of pretext for hiring discrimination and inconclusive statistical data. As a result, there was no genuine issue of material fact for the jury and no reasonable jury could conclude that Hopkins established a prima facie case of retaliation.
FAMILY MEDICAL LEAVE ACT (FMLA)
Termination of a Florida teacher is not retaliation after teacher’s certification lapsed during FMLA leave.
Weade v. School Bd. of Hillsborough Cty. M.D. Fl. No. 8:11-vc-896-T-TBM (June 15, 2012).
http://docs.justia.com/cases/federal/district-courts/florida/flmdce/8:2011cv00896/257451/24/
Michael Weade was employed as a classroom teacher in October 2005. Weade was diagnosed with prostate cancer in November 2007, which necessitated his need for a medical leave of absence. During his leave of absence, Weade was required to complete his certification to have his teaching contract renewed. Weade returned to work in April 2008 and began taking the certificate exams in May 2008. Weade did not complete all of the exams required for certification prior to June 2008 and was terminated. Weade filed a lawsuit against the district, claiming that the district retaliated against him for exercising his rights under FMLA. The district filed a motion for summary judgment, alleging that Weade was terminated for failing to timely complete all of the requirements for his teaching certificate and not because he exercised his rights under FMLA.
In order for Weade to succeed on his retaliation claim, the court held that Weade must show that the district intentionally discriminated against him in the form of an adverse employment action for having attempted to exercise his rights under FMLA. The parties agreed that Weade engaged in activity protected by FMLA and that his termination was an adverse employment action. The issue at dispute in the case was whether Weade’s termination was causally related to his protected activity. The district alleged that Weade’s failure to complete all of the requirements for his teaching certificate prevented him from teaching in Florida. The court held that, although this was true, the temporal proximity between Weade’s FMLA leave and his termination, established a prima facie case of FMLA retaliation.
Once a prima facie case is established by the employee, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its adverse employment decision. The court found that the district was able to do this. The determination that Weade was no longer eligible for employment was nondiscriminatory and unrelated to his FMLA leave. Weade offered nothing but his unsubstantiated belief and opinion that this deadline and the district’s refusal to extend the deadline were related to his FMLA leave or that the district’s stated reason for termination was false. As a result, the district’s motion for summary judgment was granted.
Illinois school board fails to establish burden against teacher’s FMLA retaliation claim.
O’Connor v. Chicago Bd. of Edn., N.D. Ill. No. 11 C 673 (June 19, 2012).
Valentina O’Connor was a teacher with the Chicago Board of Education. During the beginning of the 2008-2009 school year, O’Connor was late to class on four different occasions, which caused the principal to verbally reprimand her. O’Connor also was late to class seven times in September 2008. Subsequently, the principal provided O’Connor with a written reprimand. Following her second reprimand, O’Connor was late 49 times, and was suspended for three days in April 2009.
The principal gave O’Connor a Notice of Discipline in February 2010 after she was late seven times. In March 2010, the principal suspended O’Connor for five days and gave her a Notice of Disciplinary Action. At the pre-disciplinary hearing, O’Connor admitted to being late, but argued that she was caring for her adult son who had attention deficit hyperactivity disorder (ADHD) and bipolar disorder.
O’Connor requested intermittent FMLA leave to care for her son. She was approved FMLA leave from May 4, 2010, through August 2, 2010, and then from January 19, 2011, through May 1, 2011. However, O’Connor did not return on May 1, 2011. She filed a complaint alleging that the board violated FMLA and retaliated against her.
The board argued that O’Connor’s care for her son was due to his drug and alcohol abuse, but was not a medical necessity. The board also contended that O’Connor was ineligible for intermittent FMLA leave because her son’s erratic behavior was caused by his alcohol and drug abuse.
The district court determined that genuine issues of material fact remained regarding O’Connor’s morning care for her son and his behavior, as well as O’Connor being late to class from September 2008 until December 2008 even though her son was not living with her. The court concluded that a genuine issue of material fact also remained regarding whether O’Connor provided sufficient notice to her supervisors. The court denied the board’s motion for summary judgment because the board failed to show that there was “no genuine dispute as to any material fact and that it was entitled to judgment.
District court denies school district’s request for summary judgment after administrator directed staff not to follow board-approved grading scale.
Goudeau v. E. Baton Rouge Parish Sch. Bd., M.D.La. No. 10-303-FJP-SCR (July 31, 2012).
Sheila Goudeau was an elementary school teacher from 2001-2009. Starting in 2006, Shilonda Shamlin served as the principal of the elementary school where Goudeau taught. During the 2008-2009 school year, Goudeau claims Shamlin directed her to change students’ grades from an F to a D. Goudeau also claims she was directed not to give a student a grade lower than a D. Goudeau contends she tried on many occasions to give her students the proper grade that they earned, but she was circumvented by not only Shamlin, but the office secretary who was responsible for placing the students’ grades on the report cards. Other teachers were given this same directive, as well.
Goudeau stated that as a result of the pressure of this grading policy and the harassment she suffered for speaking out about it, she began suffering from stress, anxiety and crying spells. Shamlin transferred Goudeau to another school. The interim chief academic officer held a hearing and found Shamlin failed to adhere to the board-approved grading scale. The superintendent confirmed that Shamlin failed to follow the grading plan, but took no action against Shamlin stating he “didn’t oversee it close enough.”
Goudeau filed suit against the district alleging that she suffered retaliation for asserting her First Amendment right to free speech, violation of substantive due process under the 14th Amendment, and a claim under the Louisiana Whistleblower Statute. The district moved for summary judgment on all claims.
To prove her first amendment claim, Goudeau was required to show that she suffered an adverse employment action; her speech involved a matter of public concern; her interest in commenting on such matters outweighed the government employer’s interest in promoting efficiency; and her speech motivated the adverse employment action. The district contended that Goudeau was unable to prove that she suffered an adverse employment action because she was still employed with the board, suffered no reduction in job duties or in her salary, sustained no reprimands and her claim for “fear of future retaliation” failed to constitute an adverse employment action. Goudeau argued that, because of the many threats made by Shamlin, she was forced to transfer to another school that was not as prestigious as her former elementary school. The court found that Goudeau had created a genuine issue of material fact as to whether her transfer was an adverse employment action. As a result, the court denied the district’s motion for summary judgment on the issue.
The district also alleged that Goudeau’s speech was not about a matter of public concern. The district argued that Goudeau had a personal conflict with Shamlin that she was attempting to elevate to a matter of public concern. Goudeau alleged that the implementation of Shamlin’s illegal grading system was a matter of public concern. The court agreed with Goudeau and found that the issue was a matter of public concern. The court applied the Pickering balance test and found that it weighed in favor of Goudeau since her speech against the grading policy which violated state law actually promoted, rather than impeded, the interests of the state.
Goudeau also was required to show that her speech motivated the adverse employment action taken against her. The court found that Goudeau had presented enough evidence to create a genuine issue of material fact regarding whether Shamlin’s threatened reprimands and alleged threats against her were in response to Goudeau’s refusal to follow the illegal grading policy. As a result, the court denied the district’s motion for summary judgment on the issue. The court also denied summary judgment in favor of the district on the issue of qualified immunity.
With respect to the substantive due process claim, the court granted the district’s motion for summary judgment since Goudeau failed to oppose this portion of the district’s motion in her opposition brief.
Third circuit determines that school district did not violate the least restrictive IDEA environment.
L.G. v. Fair Lawn Bd. of Edn., 3rd Cir. No. 11-3014 (June 28, 2012)
http://www.ca3.uscourts.gov/opinarch/113014np.pdf
The Fair Lawn Board of Education determined that one of its preschool-aged students was qualified for special education and related services. The board developed an individualized education program (IEP) for the student that provided placement at Stepping Stones. The program was exclusively for preschoolers with autism spectrum disorders. However, the IEP did not provide for interaction with children without disabilities. The student began attending Stepping Stones in January 2007 and received one-on-one discreet trial instruction based on the applied behavioral analysis (ABA) for three hours per day.
During the fall of 2007, the student’s parents asked the board to consider an alternative educational placement for their daughter that would allow her to interact with “typically” developing peers, but the board denied the request. In December 2007, the student’s parents requested a meeting to discuss their daughter’s IEP and placement at the Children’s Center instead of Stepping Stones. However, the board met before the December 2007 IEP meeting and decided that the student did not have the necessary skills to benefit from an inclusion program or any interaction with typically developing peers. The student’s parents did not sign the 2007 IEP proposed by the board and transferred her to the Children’s Center in March 2008 so that she would be with both typically developing children and children with disabilities. Subsequently, the student’s parents initiated administrative proceedings against the board for reimbursement of the costs associated with the placement at the Children’s Center, as well as obtaining other services for her. The administrative law judge determined that the board complied with the Individuals with Disabilities Education Act (IDEA) and met the least restrictive environment requirement. The student’s parents filed suit in the federal district court.
The district court ruled in favor of the board. The student’s parents appealed. The court of appeals affirmed the district court’s ruling and found that the board complied with IDEA. The court noted that IDEA did not require the inclusion of students with disabilities in interactions with nondisabled students if there would be “no benefit from a less restrictive environment or gain from being around peers modeling appropriate behaviors.”
North Carolina court rules that IEP provided student with a free appropriate public education.
B.W. v. Durham Pub. Sch.’s, M.D. NC. No. 1:09 CV 00970 (June 20, 2012).
B.W. attended Pearsontown Elementary School located in the Durham Public Schools District (DPS). As part of his IEP update process, B.W.’s parents requested that an independent specialist examine him. A short-term IEP plan was then developed while his parents awaited the results from the independent specialist.
The independent specialist recommended that B.W. receive one-on-one intensive applied behavioral analysis (ABA) therapy for a minimum of 25 hours a week. Subsequently, B.W.’s father informed Pearsontown that B.W. would be enrolled at the Center for Autism and Related Disorders (CARD).
In addition, B.W.’s parents wanted a shadow aide to assist him in the classroom. However, assigning a shadow aide was an administrative decision and the district refused to have further discussions relating to the shadow aide. As a result, B.W.’s parents requested a contested case hearing and argued that B.W. was not provided a free appropriate public education (FAPE). The administrative law judge assigned to the case ruled that the parents were not entitled to relief. B.W.’s parents then filed an appeal, but the state review officer affirmed the administrative ruling. B.W.’s parents filed a lawsuit in the district court alleging violations under the Individuals with Disabilities Act (IDEA).
B.W.’s parents argued that DPS violated the IDEA when they refused to discuss the shadow aide. DPS argued that was not a violation and that the shadow aide was a “methodological preference” for the child.
The court used a two-part test to evaluate the IDEA claim, which consisted of “(i) whether the school complied with the procedural requirements under the IDEA, and (ii) whether the substance of the IEP was reasonably calculated to enable the child to receive educational benefits.” The district court found that DPS committed a minor procedural violation by not considering a shadow aide, even though it was not part of a related service. However, the court found that DPS made changes to address some of the parents concerns.
The court found that B.W.’s parents had the burden of proving a substantively deficient IEP, but failed to meet the burden. In addition, the court determined that IDEA did not require providing “every special service necessary to maximize each handicapped child’s potential.” The court ruled that a FAPE was offered to B.W. because the IEP was made for his advantage. As a result, the court ruled that B.W.’s parents were not entitled to reimbursement for placing B.W. in a private school, and ruled in favor of DPS.
Ninth circuit rules that school district is not liable for nominal damages under IDEA.
C.O. v. Portland Pub. Sch.’s, 9th Cir. Nos. 10-35340 & 10-35402, 679 F. 3d 1162 (May 14, 2012).
http://www.ca9.uscourts.gov/datastore/opinions/2012/05/14/10-35340.pdf
C.O.’s mother, Pat Oman (Oman) worked with the Portland Public School District to develop an IEP for C.O. However, C.O. did not meet the minimum entry requirements when he applied to a magnet high school. As a result, C.O. was not able to attend the magnet high school. In March 2004, Oman filed an administrative complaint alleging that C.O.’s IEP contained procedural and substantive inadequacies.
The administrative law judge concluded that the district violated the Individuals with Disabilities Education Act (IDEA) and ordered the district to provide certain compensatory education. However, C.O. was not able to begin the ordered remedial education because the preferred providers were full.
Oman filed several pro se lawsuits against the district, the Oregon Department of Education (ODE) and several employees alleging procedural and substantive violations of IDEA, as well as violations under 42 U.S.C. § 1938. Oman also alleged that the district’s magnet high school violated § 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).
The district court dismissed most of Oman’s claims, but found the district and its attorney liable for nominal charges worth $1 under IDEA and § 1983. On appeal, the district argued that the court erred by ruling that Oman had a private right of action for nominal damages under IDEA. The court of appeals reversed and noted that IDEA did not provide congressional intent to award compensatory or nominal damages as a remedy. However, the court of appeals stated that IDEA did allow district courts to award appropriate relief.
The court of appeals held that § 504 did not force schools to disregard an individual’s disabilities or make substantial modifications to the program. The court continued by stating that schools are given judicial deference when it comes to academic decisions relating to the ADA and Rehabilitation Act cases.
The court of appeals found that having an eighth-grade proficiency as the minimum requirement was not an unreasonable requirement for students applying to the magnet high school. As a result, the court dismissed Oman’s cross claims related to IDEA for lack of jurisdiction and reversed the district court’s finding that the district was liable for nominal damages under IDEA and § 1983.
Virginia court rules that proposed goals and placements were individually tailored to allow student to receive some educational benefit in the least restrictive setting.
S.H. v. Fairfax Cty. Bd. of Edn.,E.D. Va. No. 1:11-cv-128 (June 19, 2012)
S.H.’s parents filed a lawsuit under IDEA alleging that the Fairfax County Board of Education failed to provide their daughter with a FAPE.
In 2006, S.H.’s IEP was amended to include occupational therapy. Her parents agreed to this amendment. S.H. began to experience significant motor and neurological problems. Her parents decided to send her to the Lab School of Washington, a private school, at the beginning of her fifth grade year in August 2007.
In 2010, the parents requested a due process hearing alleging that the in-district placement was inappropriate because S.H. did not receive any educational benefits. However, the hearing officer found that the proposed IEPs “would provide S.H. with a FAPE for each of the four school years at issue.” Both parties filed cross-motions.
The district court held that the burden was on S.H.’s parents to establish that the proposed IEPs were not reasonably calculated for S.H. to receive an educational benefit. The court noted that the IEP team proposed goals that would meet S.H.’s needs. In addition, the court determined that the IEP team properly considered the least restrictive mandate under IDEA when developing the 2007-2008 IEP.
The court ruled that the parents made a unilateral decision to send S.H. to the Lab School at their own risk. They did not inform the district of their intention. As a result, the parents’ claim for reimbursement of the 2007-2008 tuition was barred. Additionally, S.H.’s IEP, during the 2008-2009 school year, was sufficient to provide her some educational benefits. The court also found that S.H.’s eighth grade IEP was individually tailored for her needs, and was sufficient under IDEA. In conclusion, the district court ruled that the IEPs in question allowed S.H. to receive some educational benefits in the least restrictive setting of her local public school.
Massachusetts court rules that IEP provided student with an appropriate education.
I.M. v. Northampton Pub. Sch.’s,Mass. Dist. Ct. No. 11-30214-KPN (June 12, 2012)
http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=neiman/pdf/im%206%2012.pdf
Disagreements arose between the parents of a disabled student and the Northampton Public Schools (NPS) regarding the student’s IEP. The parents filed a “motion for interim placement” with the Bureau of Special Education Appeals (BSEA) seeking public funding for the home-based program they developed. BSEA denied the motion because the parents did not prove that the IEP was inappropriate.
During this time, the student’s application to attend the Perkins School for the Blind was pending. NPS sent the parents a placement consent form once Perkins accepted the student. The parents accepted the placement, but requested a meeting after transportation was denied. The parents made an interim request for reimbursement with BSEA for the expenses they incurred for transporting the student to Perkins. BSEA denied the request because the parents unilaterally decided to transport the student daily, and they did not demonstrate that the student would not obtain an appropriate education without NPS providing transportation.
NPS filed an emergency hearing request after the parents withdrew the student from Perkins. BSEA determined that the IEP was appropriate. Subsequently, the parents filed claims against NPS alleging violations of the ADA. They also filed a claim against BSEA under the IDEA.
The district court determined that the IEP developed by NPS provided an appropriate education to the student, and the IEP was reasonable. The parents’ ADA claim was not independent from the IDEA since the “essence of the claim [was] one stated under the IDEA for denial of a FAPE.”
In addition, the court found that NPS did not violate ADA because it did not deny the student a FAPE. The parents knowingly rejected the transportation portion of the IEP, and did not prove that BSEA erred by determining that the FAPE was appropriate. NPS adhered to the substantive and procedural requirements of IDEA.
Sixth circuit rules that student was denied a free appropriate public education by district.
Woods v. Northport Pub. Sch., 6th Cir. Nos.11-1493 & 11-1567 (July 5, 2012)
http://www.ca6.uscourts.gov/opinions.pdf/12a0730n-06.pdf
T.W. received special education and related services while attending school in the Northport Public School system. An IEP was developed for T.W. in 2005. However, his parents requested a due process hearing to challenge the 2005 IEP. A settlement agreement was reached before the hearing.
In 2007, T.W.’s parents initiated an administrative proceeding to determine whether T.W. received a FAPE during the 2005-2006 and 2006-2007 school year, and whether the 2007-2008 proposed IEP was deficient. The independent hearing officer (IHO) determined that Northport’s “performance on the IEP terms for the 2006-2007 school year was seriously deficient” because certain services were not implemented.
The IHO ruled that Northport committed procedural violations of IDEA. Evaluations of T.W.’s abilities, an updated IEP, 768 hours of one-to-one compensatory education and a prospective placement at Northport providing T.W. with one-to-one direct instruction were ordered. Northport challenged parts of the IHO’s decision. The district court denied Northport’s motion in its entirety. The parents were granted attorneys’ fees and costs, but only for those incurred before the settlement offer. Both parties appealed.
The court of appeals affirmed the district court’s ruling that T.W. did not obtain meaningful academic benefits during his second grade year. Northport failed to provide promised services to T.W. and committed procedural violations of IDEA. The court noted that T.W. was denied a FAPE during his second and third grade years and determined that it was proper for the IHO to condition the “prospective receipt of a FAPE on re-enrollment.” The parents were awarded attorneys’ fees and costs.
District court does not have subject matter jurisdiction over public policy argument expressed under the Individuals with Disabilities Education Act
Bonaguide v. Regional Sch. Dist. No. 6., D. Conn. No. 3:11-cv-01161 (July 26, 2012).
Rosemary Bonaguide and Catherine Hughes were employed as paraprofessionals by the district and worked with autistic elementary school students. The students were non-verbal and evidenced an array of behavioral and communicative programs. The employees alleged that they requested a meeting with the principal of the elementary school in 2010 to discuss the students’ needs and educational goals pursuant to their IEPs. No meeting took place. The employees also alleged that the environment the district provided for the students was inadequate and unsafe, and that they were not properly trained to deal with the student’s behavioral problems. Several months after filing their complaints, the board of education terminated the two employees, citing budgetary issues.
The two employees sued the district for wrongful termination in violation of public policy. The employees alleged that the district terminated them in retaliation for addressing concerns on behalf of their students, in contravention of the public policy expressed in IDEA.
Before addressing the merits of the case, the court addressed whether it had subject matter jurisdiction. The employees alleged that the federal district court was the proper jurisdiction since the state law cause of action necessarily depended on a substantial question of federal law, namely IDEA. The court rejected this argument, finding that the federal law at issue (IDEA) was mirrored to a significant degree by its state law counterpart. As a result, the causes of action did not necessarily depend on the interpretation of federal issues, and the court lacked subject matter jurisdiction. The case was remanded.
District court upheld administrative law judge’s dismissal of petition alleging infractions of IDEA and section 504 of the Rehabilitation Act.
H.A. v. Camden City Bd. of Edn. D.Md. No. 10-0733 (July 31, 2012).
H.A. is a student who suffered certain disabilities that brought him within the ambit of IDEA. In July 2009, H.A. filed a due process petition against the Camden City Board of Education, alleging various infractions of IDEA and section 504 of the Rehabilitation Act. In October 2009, an administrative law judge (ALJ) dismissed the petition for failing to comply with a pre-trial order and denied her motion for sanctions against the district for failing to appear at a pre-trial conference. H.A. sought relief through only one count, requesting that the court either reverse the decision of the ALJ or remand the petition to be heard by a different ALJ. Both parties moved for summary judgment.
The court identified that it was required to defer to the ALJ’s factual findings “unless it can point to contrary nontestimonial extrinsic evidence on the record.” In this case, the ALJ made the decision that the student’s counsel’s failure to provide the ALJ with a copy of his client’s expert report and CV prior to the hearing, as expressly ordered by the ALJ, warranted the sanction of dismissal. This sanction was a permissive sanction, both in statute and recognized by the courts. Although the court recognized that this sanction was usually exercised as a last resort, the court found that the ALJ was not unreasonable in his conclusion that the sanction of dismissal in this case was the best available option.
H.A. also argued that the ALJ abused his discretion by failing to impose sanctions against the district for its failure to appear in person at a pre-trial conference. The court disagreed, finding that the district’s failure to appear was inadvertent and readily addressed by the counsel’s appearance later in the day. H.A. argued that it was inconsistent of the ALJ to impose sanctions on H.A., but not the district. The court disagreed, finding that the respective harm caused by the errors and the respective culpability for the mistakes warranted the distinction. The court therefore found no abuse of discretion on the part of the ALJ for choosing not to impose sanctions against the district.
The court concluded that it would not reverse any portion of the ALJ’s decision. Additionally, the court concluded that H.A.’s claims under section 504 of the Rehabilitation Act did not survive the motion to dismiss, since H.A. sought no independent relief through section 504 that was not sought through IDEA.
Third circuit determines that parents are not entitled to compensatory education or reimbursement for tuition or transportation expenses.
Ridley Sch. Dist. v. M.R, 3rd Cir. No. 11-1447, 680 F.3d 260 (May 17, 2012)
http://www.ca3.uscourts.gov/opinarch/111447p.pdf
In 2008, the Ridley School District identified E.R. as a student with learning disabilities. An IEP team meeting was held in March 2008 to review a draft IEP developed for E.R. The district made revisions to the IEP at the request of E.R.’s parents. The parents refused to sign a Notice of Recommended Educational Placement (NOREP) issued on April 2, 2008, until revisions were made. The parents signed the revised NOREP, but were concerned about the district’s proposed reading program and requested that the district hire someone to provide a different program to E.R. The district did not.
In August 2008, the parents notified the district that they would be enrolling E.R. at the Benchmark School for the 2008-2009 school year because it provided the “intensive multi-sensory approach to reading” that they believed E.R. needed. The parents then filed a due process complaint alleging that the district violated IDEA and § 504 of the Rehabilitation Act. The due process hearing officer found that the district did not commit any violations during E.R.’s kindergarten year, but did violate IDEA and Rehabilitation Act during E.R.’s first grade year.
In addition, the hearing officer found that E.R. was denied a FAPE during her first and second grade years because the district did not have a “specially designed instruction in the form of a research based, peer reviewed reading program.” The parents were awarded compensatory education for the first grade year, reimbursement of tuition at the Benchmark School for the 2008-2009 school year and reimbursement of transportation expenses to and from the Benchmark School. The district filed a petition for review. The district court affirmed the hearing officer’s finding regarding E.R.’s kindergarten year, but reversed the decision regarding E.R.’s first and second grade years. The parents appealed.
The court determined that the district did not deny E.R. a FAPE. In addition, the court of appeals ruled that the substantive rights of E.R. and her parents were not affected, and therefore they were not entitled to an award of compensatory education. The court noted that although the initial IEP did not specify all of the special education services E.R. would receive, the subsequent NOREPs did.
Additionally, the court of appeals ruled that the district proposed a program with specially designed instruction that was reasonably calculated to allow E.R. to achieve meaningful educational benefits. The court also found that E.R. was not excluded from participation in educational activities or denied educational benefits that would rise to the level of a § 504 violation.
Ninth circuit rules that school district deprived student of a substantively adequate FAPE.
Anchorage Sch. Dist. v. M.P., 9th Cir. No. 10-36065, 689 F.3d 1047 (July 19, 2012)
http://www.ca9.uscourts.gov/datastore/opinions/2012/07/19/10-36065.pdf
M.P. was eligible for special education and related services. In 2006, a dispute arose between M.P.’s parents and the district as a result of an adopted IEP. There were attempts to revise the 2006 IEP, but the parties were unable to update it prior to its expiration. During M.P.’s third grade year the district prepared a revised IEP, but the parents did not attend the meeting.
The parents identified sections of the IEP that should “stay put” as a result of the pending administrative proceeding with the district. The parents wanted M.P.’s current educational placement for writing instruction in the draft February 2008 IEP to remain. However, the district unilaterally decided to postpone updating M.P.’s IEP until a decision was made in the administrative proceeding.
During the 2008-2009 school year, M.P. was enrolled at Kincaid Elementary School (Kincaid). Kincaid relied on the 2006 IEP because of the dilemma over the February 2008 draft IEP. M.P.’s parents filed an administrative due process complaint in September 2008 to determine whether M.P. received educational benefits under the 2006 IEP during the 2008 calendar year. The hearing officer ruled that the district failed to provide M.P. with a FAPE and awarded the parents full reimbursement for the math and tutoring expenses they incurred from January 2008 through December 2008. The parents also were permitted to submit their bills from January 2009 through May 2009 for review. The hearing officer also required the IEP team to have a meeting within 20 days and ordered the parties to participate in mediation.
The district filed a lawsuit regarding the hearing officer’s decision. The district court granted the district’s motion for summary judgment in part. The court determined that the district did not deny M.P. a FAPE and ruled that the reason the 2006 IEP was not updated was mostly due to the parents “litigious approach.” The parents were not entitled to reimbursement. The parents appealed.
On appeal, the court ruled that the district court improperly shifted the burden for substantive compliance with IDEA to the parents. The district had a duty to review and revise an eligible child’s IEP. The court of appeals found that the district denied M.P. a FAPE during 2008. The 2006 IEP was outdated and obsolete, and did not provide a proper evaluation of M.P.’s current level of performance during the third grade year. The district failed to provide M.P. with a FAPE because the 2006 IEP did not provide an educational benefit. The court of appeals noted that the district court abused its discretion by determining that the parents were not entitled to reimbursement.
Additionally, the court of appeals ruled that the parents were entitled to an award of full reimbursement for M.P.’s private tutoring expenses for the 2008 calendar year. As a result, the court remanded the issue of whether M.P.’s parents were entitled to reimbursement for the private tutoring expenses incurred from January 2009 through May 2009.
Virginia Supreme Court rules that board did not violate notice and open meeting requirements.
Hill v. Fairfax Cty. Sch. Bd.,No. 111805, 284 Va. 306 (June 7, 2012).
http://www.courts.state.va.us/opinions/opnscvwp/1111805.pdf
Jill DeMello Hill filed a writ of mandamus alleging that the Fairfax County School Board violated the Virginia Freedom of Information Act (FOIA) by deciding to close an elementary school through an exchange of emails, prior to holding a public meeting on July 8, 2010. Hill also alleged that the board violated FOIA “by denying her access to certain public records pertaining to the closure of the elementary school, by failing to provide those records in a timely and efficient manner, failing to provide full disclosure of those records, and/or without justification redacting parts of the records supplied to her.” Pursuant to Hill’s FOIA request, the board provided Hill with emails sent among board members.
Hill wanted the board to disclose all of the documents she requested for public inspection and pay her attorneys’ fees and costs. She also requested the board have a public meeting to discuss the closing of the elementary school. The board argued that no meetings were conducted through email and that it did not withhold or redact documents that were subject to disclosure under FOIA. The board also argued that Hill failed to state a claim for “invalidating the July 8, 2010, public meeting” along with the vote to close the elementary school, and her request for attorneys’ fees and costs should be denied.
The circuit court denied mandamus relief to Hill because the emails sent among board members “did not constitute a meeting of the board for purposes of the FOIA.” The court determined that the emails did not include “sufficient simultaneity” because the emails did not result in the discussion of board business by any three board members. However, the court did find that the board violated the FOIA by its unreasonable delay in responding to Hill’s request for electronic copies of certain documents and by waiting to release five documents that were not exempt until court ordered. The court found the delay to be de minimis, and therefore ruled that Hill did not prevail on her FOIA claim. Hill was not awarded attorneys’ fees or costs. Hill appealed.
The Supreme Court of Virginia affirmed the circuit court’s ruling and found that the emails among board members did not constitute a meeting because there was no sufficient simultaneity, and the emails were between two board members instead of three. The court noted that FOIA defined a meeting as “an informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership…of any public body.”
Kentucky school board entitled to governmental immunity for injuries sustained by a spectator at a cheerleading competition held on district property.
Brabson v. Floyd Cty. Bd. of Edn., E.D. Ky. No. 10-159-ART (May 30, 2012).
http://law.justia.com/cases/federal/district-courts/kentucky/kyedce/7:2010cv00159/65772/21/
Cheer Elite is a privately owned company that organizes and hosts private cheerleading competitions. In 2010, the owner of Cheer Elite attempted to reduce her overhead expenses for the competition and asked the cheerleading coach at a high school if she could host the competition at the high school instead of a nearby convention center. In exchange for the use of the space, the parents of the high school cheerleaders, who were informally organized as the team’s boosters club, would receive one-half of the admission fees. Consistent with the board’s policy, the principal approved the use of the space.
At the event, the parent of one of the cheerleaders tripped on the raised gymnasium floor and injured her right knee and left ankle. These injuries caused her to miss more than a year of work, endure three surgeries and incur more than $65,000 in medical expenses. As a result, she sued the district and the owner of Cheer Elite, alleging that they failed to warn about the dangerous and unsafe condition that caused her injuries. The district responded with a motion to dismiss, claiming that it was entitled to governmental immunity.
Under the doctrine of governmental immunity, a state agency is liable only for damages caused by its tortious performance of a propriety function and not those caused by its tortious performance of a governmental function. In this case, the court found that the board was engaged in two governmental functions. First, by allowing the boosters club to conduct a fundraiser on school property, the board fostered interscholastic athletics. Second, the board also continued a tradition of making government property available for use by the boosters club on a not-for-profit basis.
Additionally, the court found that this case had the potential to “threaten precisely the sort of concerns that lie at the core of governmental immunity” and that an opposite ruling would be “equivalent to overriding the board’s policy decisions about how to allocate its limited financial resources among its schools and requiring the board to maintain, repair or renovate certain schools at the expense of others.” The court felt that the order of such priorities was best left to the board.
The court rejected the parent’s argument that the board and booster club were linked in such a way that the board engaged in a proprietary function when it assisted with the competition. Instead, the court found that board and the booster club were entirely separate entities and the board did not receive anything in exchange for making the gymnasium available. As a result, the court found that the board was engaged in a governmental function and was entitled to governmental immunity.
Illinois principal did not have reasonable suspicion to search student who arrived after principal smelled marijuana.
Doe v. Champaign Cmty. Unit 4 Sch. Dist., C.D. Ill. No. 11-CV-3355 (June 22, 2012).
http://law.justia.com/cases/federal/district-courts/illinois/ilcdce/3:2011cv03355/53105/27/
In January 2011, the principal arrived at school prior to student D.M.’s arrival. The principal smelled cannabis. Thirty minutes later, the principal returned, removed D.M. from the classroom and took D.M. to her office where she searched D.M.’s coat and backpack. She required D.M. to remove his shirt, unbutton his pants, remove his belt, remove his shoes and partially disrobe. The principal did not find any contraband on D.M. during the search. The principal did not contact D.M.’s parents prior to the search, nor did she conduct a search of any other student in the classroom. D.M. was one of two African-American students in the classroom.
D.M.’s parents filed suit against the district, alleging that the principal lacked reasonable suspicion to search D.M. and that the search was a racially discriminatory illegal search and seizure. The district alleged that the serious nature of the infraction justified the search at its inception. The parents also alleged that the district failed to adequately supervise and train its employees on the appropriate and proper methods of investigation and that this failure violated D.M.’s rights.
The court found that before a student may be searched by school personnel, the school official must have reasonable suspicion or a moderate chance of finding wrongdoing. In this case, the court found that the principal did not have reasonable suspicion to search D.M. Instead, she had no reason to search D.M. because D.M. was not even in the classroom when the principal smelled the marijuana. As a result, the district was not entitled to dismissal of the complaints based on qualified immunity.
District Court rejects motion to dismiss employee’s sexual harassment claim after district hired employee with propensity to engage in inappropriate conduct.
Johnson v. Scott Cty. Sch. Bd. W.D. Va. No. 2:12CV00010 (July 31, 2012).
http://www.vawd.uscourts.gov/OPINIONS/JONES/2-12CV00010.OPINION.MOTION.TO.DISMISS.PDF
At the beginning of the 2010-2011 school year, Kellie Johnson was principal of a district elementary school. She was promoted to director of personnel for the county school system around Nov. 1, 2010. Around Jan. 1, 2011, Johnson was promoted to assistant superintendent by the school board.
In 2010, the board also sought to hire Greg Baker as the district’s superintendent. Prior to his hiring, members of the board were allegedly provided with information indicating that Baker had a propensity to engage in sexually inappropriate conduct directed against females because of their sex. In spite of this, the board acted to hire Baker as its superintendent.
After he was hired, Baker allegedly began a pattern of sexually harassing Johnson with sexually suggestive comments, unwelcome romantic overtures and other crude remarks that were inappropriate in the workplace. Johnson reported the sexually offensive conduct to the school board, after which she was demoted to principal of a smaller school at a significant reduction in pay. Johnson filed a claim against the school board for sexual harassment and retaliation. The district moved to dismiss Johnson’s causes of action for failure to state claims upon which relief can be granted.
The court found that Johnson stated a valid hostile work environment claim. Johnson’s claim set forth a direct basis for imputing liability to the school board, namely that the school board was provided with information indicating that Baker had a propensity to engage in sexually inappropriate conduct, yet it elected to hire Baker as superintendent in spite of this knowledge. As a result, the court rejected the district’s motion to dismiss as to the sexual harassment claim.
With respect to the retaliation claim, the court found that Johnson failed to allege sufficient facts to show a causal link between the claimed protected activity and the school board’s decision to demote her to a lower paying position. Johnson offered no facts to support her claim aside from the assumption of temporal proximity between the events at issue. The court held that “mere temporal proximity” between the two events was insufficient to satisfy the causation element.
Accordingly, the district’s motion to dismiss was granted in part and denied in part.
Pennsylvania court affirmed district’s decision to terminate an employee’s employment after he sexually harassed students.
Bethel Park Sch. Dist. v. Bethel Park Fedn of Teachers, AFL-CIO, Pa. Commw. Ct. No. 1603 C.D. 2011 (July 30, 2012).
http://caselaw.findlaw.com/pa-commonwealth-court/1607731.html
Since 1991, Michael Lehotsky had served as a seventh-grade mathematics teacher with the district. Although Lehotsky performed satisfactorily early in his career, he engaged in various forms on misconduct since 2003, which resulted in disciplinary proceedings or formal improvement plans. During the 2008-2009 school year, parents and students reported that Lehotsky engaged in unwelcome conduct with seventh-grade students that included holding their hands and/or rubbing their backs or legs.
Before the 2009-2010 school year began, the district required Lehotsky to be evaluated by psychiatrists to determine whether and under what conditions he could safely return to the classroom. The psychiatrists recommended that Lehotsky not have any contact with students outside of a structured classroom setting, which prohibited Lehotsky from conducting math labs during the lunch hour. These recommendations were implemented into an improvement plan for Lehotsky. Despite this prohibition, Lehotsky continued to meet with students outside of the structured classroom setting. Because Lehotsky did not meet the improvement plan conditions, the district discharged Lehotsky from employment for violating provisions of Pennsylvania’s Public School Code of Conduct, as well as the district’s own policies prohibiting sexual harassment.
The union submitted a formal grievance on Lehotsky’s behalf, asserting that he was suspended and dismissed from employment without just cause. The matter was referred to an arbitrator who directed that Lehotsky’s employment discharge be set aside and that he be restored without loss of seniority. The district appealed to the trial court, which vacated the arbitrator’s award and affirmed the district’s decision to terminate the teacher’s employment. The union appealed.
The court of appeals upheld the trial court’s order vacating the arbitration award. The court held that since the applicable collective bargaining agreement (CBA) did not set forth a due process procedure for responding to sexual harassment claims, the arbitrator incorrectly considered the procedure outlined in the district’s “unlawful harassment” policy. In doing so, the arbitrator went outside the CBA and his award was not rationally derived from the CBA. Further, the court found that the arbitrator’s award reinstating the teacher to the classroom after finding that he was guilty of inappropriately touching seventh-grade students during academic lessons unequivocally violated public policy.
Ohio court of appeals affirms decision granting immunity to board of education after district employee is tackled by high school student.
Emerick v. Ellet High Sch., 9th Dist. No. 25870, 2012 Ohio 789 (Feb. 29, 2012).
www.supremecourt.ohio.gov/rod/docs/pdf/9/2012/2012-Ohio-789.pdf
Kimberly Emerick was seriously injured when a high school student tackled her. Emerick and her husband sued the school, its employees, the Akron City School District and the Akron Board of Education, alleging negligence and loss of consortium. The high school, school district and board moved for judgment on the pleadings, arguing that they had immunity under Ohio Revised Code Chapter 2744. The trial court entered judgment for the high school and school district because it determined they were not separate entities capable of being sued and entered judgment for the board because it determined it had immunity under RC Chapter 2744. The Emericks appealed, arguing the trial court erred in its determination that the board was immune.
The court of appeals affirmed the trial court’s decision. The court held that determining whether a political subdivision is immune from liability involves a three-tiered analysis. The starting point, the court found, is the general rule that political subdivisions are immune from tort liability. At the second tier, a party can show that immunity should be abrogated under five exceptions. Finally, if immunity is lost under one of the five exceptions, it can be re-established under one of the statutory defenses to liability.
The Emericks alleged that the board’s immunity was abrogated under RC 2744.02(B)(4), which requires a party to demonstrate that the sustained injuries were due to physical defects within or on the grounds of the high school. In this case, none of the Emericks’ statements alleged that Emerick’s injuries were “due to physical defects within or on the grounds of” the high school. Instead, their allegations related exclusively to alleged inadequacies of the board’s employees and agents, rather than physical defects in the school itself. As a result, the court affirmed the judgment of the common pleas court and granted the board’s motion for judgment on the pleadings.
Ohio court rules that school district is not immune from liability under RC 2744.
Leasure v. Adena Local Sch. Dist., 2012-Ohio-3071
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2012/2012-ohio-3071.pdf
Heidi Leasure was injured after falling down a set of bleachers at a school gymnasium. Leasure filed a complaint alleging negligence against Adena Local (Ross) School District and products liability against several John Does. Leasure and her husband sought damages for injuries and loss of consortium. The district argued that it was immune from liability under Ohio Revised Code Chapter (RC) 2744.
The district presented an affidavit from a maintenance technician, which stated that the bleachers did not contain any defects and were in excellent condition when the injury occurred. The technician also noted that there were no other reports of problems with the bleachers. The district argued that Leasure’s negligence claims should be barred by the open and obvious doctrine. In addition, the district contended that RC 2744.03 (A)(5) reinstated its immunity if it was removed by RC 2744.02(B)(4).
Leasure alleged that the physical defect was caused by a failure to extend the bleachers correctly and that RC 2744.03 (A)(5) did not apply. Additionally, Leasure argued that the district would not be shielded from liability. The trial court denied the district’s motion for summary judgment and the district appealed.
On appeal, the district disputed Leasure’s injury being caused by a physical defect in the bleachers. The court of appeals affirmed the trial court’s ruling. In addition, the court ruled that the bleachers were improperly set up and contained an imperfection caused by an employee. However, the court noted that the exception under RC 2744.02 (B)(4) would eliminate the district’s immunity provided by RC 2744.02 (A)(1) if Leasure’s evidence were taken as true.
The court also found that RC 2744.03 (A)(5) would not reinstate the district’s immunity because it did not protect the district from the “negligent maintenance of its buildings.” RC 2744.03(A)(5) would only apply to activities “that involve weighing alternatives or making decisions that involve a high degree of official judgment or discretion.” The court found that it did not have jurisdiction to determine whether the open and obvious doctrine barred Leasure’s negligence claims because “the trial court’s decision concerning the open and obvious doctrine did not deny the district the benefit of an alleged immunity.”
Ohio court reversed lower court’s finding that school nurse met requirements for membership in state teachers retirement system.
May v. PSI Affiliates, Inc., 2012-Ohio-3554.
http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2012/2012-ohio-3554.pdf
In 2001, the Akron City Board of Education entered into a contract with PSI Affiliates to provide school nurses and health aides for a number of its schools for the coming school year. PSI Affiliates hired Susan May to work as a nurse supervisor in some of the schools. After starting her job, May asked PSI Affiliates and the school board whether she was eligible to become a member of the State Teachers Retirement System of Ohio (STRS). When they did not respond, she contacted STRS directly and was told that she was qualified. PSI Affiliates fired her shortly thereafter.
May filed a complaint against PSI Affiliates and the school board, requesting damages and declaratory relief. While her case was pending, the board asked STRS for a determination of whether May was a member of STRS. STRS concluded that she was a member. The school board subsequently filed a claim against STRS, seeking a writ of mandamus to prevent STRS from enforcing its decision. The common pleas court upheld STRS’ decision and granted summary judgment to STRS and May. The school board appealed, alleging that the common pleas court incorrectly upheld STRS’ determination that May could participate in the teachers retirement system.
Under RC 3307.01(C), the membership of STRS consists of all teachers and contributors. The statute defines “teacher,” which contains six categories, three of which were potentially relevant to May. The statute also explicitly stated that if there is any doubt regarding whether a person is a teacher, STRS shall determine whether the person is a teacher and its decision is final.
The definition of teacher included “any person paid from public funds and employed in the public schools of the state under any type of contract described in section RC 3319.08 in a position for which the person is required to have a license….” The school board limited its argument to whether May was employed under a RC 3319.08 contract and whether she occupied a position for which the person is required to have a license.
As a school nurse supervisor, May worked in a position for which the state board required licensure. Although May had a professional pupil services license, the court found no evidence in the record to suggest that she was “licensed to teach.” Because there was no evidence in the record that May was licensed to teach, the court found that her hiring could not have “involved a contract for the employment of a teacher” under RC 3319.08 and did not meet the definition of a teacher.
The definition of teacher also included “any person having a license issued pursuant to RC 3319.22 to 3319.31 and employed in a public school in this state in an educational position…under programs provided for by federal acts or regulations and financed in whole or in part from federal funds, but for which no licensure requirements for the position can be made under the provisions of such federal acts or regulations.” The court was unable to find any evidence that May’s employment was under a federal program that was at least partially funded by federal funds. As a result, there was no evidence in the record to support a determination that May was a teacher under the definition.
The definition of teacher also included “any other teacher or faculty member employed in any school…wholly controlled and managed, and supported in whole or in part, by the state or any political subdivision thereof….” The court held that since none of May’s school-nurse supervisor duties required her to instruct or teach students, she did not meet the definition of a teacher under the ordinary sense of the word. The court also rejected the position that May was a faculty member employed in the school.
Because STRS’ conclusion that May was a teacher and a member of STRS was not supported by “some evidence,” the court of appeals concluded that the common pleas court incorrectly determined that the school board was not entitled to a writ of mandamus.
Seventh circuit rules that student does not have a protected liberty interest in accessing school grounds as a member of the public.
Hannemann v. Southern Door Cty. Sch. Dist., 7th Cir. No. 11-2529, 673 F.3d 746 (Mar. 15, 2012).
http://www.courthousenews.com/2012/03/19/Hannemann.pdf
A ninth-grade student filed a lawsuit against the Southern Door County School District (SDCSD), its superintendent, principal and assistant principal alleging that his rights under the 14th Amendment Due Process Clause were violated as a result of his suspension and expulsion from Southern Door County High School (SDCHS).
The student was expelled during the 2005-2006 school year for violating the weapons policy. The board issued an expulsion order that expired when the student turned 21, but allowed early reinstatement during the 2006-2007 school year on condition that the student had no further “incidents of misconduct.” However, the student was suspended and then expelled after incidents occurred in April 2007 and May 2007. After the May 2007 incident, the board sent a letter to the student informing him that SDCSD decided to enforce the expulsion. The student’s attorney requested a hearing to contest the permanent expulsion, but SDCSD decided that the expulsion would remain. For the 2007-2008 school year, the student attended private school. The state superintendent reversed the expulsion, but the student continued his education at the private school.
The student continued to enter the SDCHS property. In May 2008, a teacher informed the student that he had to get off the school property after spotting him in a weight room. A letter was sent to the student informing him that any subsequent entry upon the school campus would be considered trespass, but he was not provided notice of an opportunity for a hearing. In June 2008, a police officer issued the student a trespassing citation for driving onto school property.
The student filed a lawsuit alleging that his suspension and expulsion violated his due process rights and his right to intrastate travel. The district court granted SDCSD’s motion for summary judgment and ruled that “a school is permitted to indefinitely ban a nonstudent from its property because members of the public have no constitutional right to access public schools.” The district court also ruled that the right to intrastate travel is not unlimited. The principal, superintendent and assistant principal were entitled to qualified immunity. The student appealed.
On appeal, the circuit court affirmed the district court’s ruling. The student argued that SDCSD deprived him a protected interest as a member of the general public because a ban from school property is burdensome. The court concluded that the student’s ban was indefinite because there was no evidence that indicated it was permanent. Also, the court determined that the general public did not have a right to access school property. The student did not establish that the ban from school property deprived him of a protected liberty interest.
New Jersey court affirmed ruling that regulation exceeded district’s authority because it sought to control off-campus student conduct.
GDM v. Bd. Of Edn. of Ramapo Indian Hills, N.J. Super. No A-0953-10TI (July 24, 2012).
http://www.aclu-nj.org/files/3013/4314/3773/2012_07_24_a0953-10.pdf
In 2007, the Ramapo Indian Hills board of education proposed a regulation allowing the school district to “revoke a student’s privilege to participate in extracurricular activities based upon illegal conduct….” The board was particularly concerned with the use of drugs and alcohol by students occurring outside of school property. The board conducted community outreach forums during a two-year period on the proposed regulation, and felt that the proposed regulation “received community-wide support.”
In 2009, the board adopted the regulation at one of its regular meetings. Students were notified of the new policy through assemblies, the Student Handbook, and the school’s website. The parents of one student decided to object to the regulation and refused to sign the consent form, arguing that the regulation infringed upon their rights as parents to properly “nurture, protect and punish their children.” The commissioner of education invalidated the regulation, arguing that the regulation exceeded the statutory authority conferred upon local school boards to regulate student conduct. The board appealed.
On appeal, the court affirmed the determination of the commissioner. The court agreed that a school board was only permitted to suspend a student’s participation in extracurricular activities for conduct away from school grounds where the activity substantially interfered with the requirements of discipline in the school’s operations and the suspension was reasonably necessary for the student’s physical or emotional safety and well-being or for the safety and well-being of other students, teachers or school property. The court found that the regulation failed to meet both of these requirements and was an invalid exercise of authority as a result.
Expulsion letter from Ohio superintendent served as a final appealable order after court struck board minutes from the record.
A.M.R. v. Zane Trace Local Bd. of Edn., 2012-Ohio-2419.
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2012/2012-ohio-2419.pdf
In November 2009, a student at Zane Trace High School allegedly attacked a fellow student and was suspended for 10 days. The student received notice that she might be expelled, and the superintendent held an expulsion hearing where he decided that the student would be expelled. The student appealed and the board held a hearing on the appeal. The hearing transcript did not indicate the board’s decision, but the student’s attorney received a letter the day after the hearing from the superintendent indicating that the board unanimously voted to uphold the student’s 75-day expulsion.
The student filed a lawsuit against the district, alleging that her expulsion was illegal because the board did not vote to uphold the expulsion at a public meeting. In response, the board attached an exhibit to its brief that purportedly contained the minutes of the board’s meeting on the date of the hearing. The document did not indicate when the minutes were actually prepared. The student filed a motion to strike all of the board’s exhibits. The trial court granted the motion, finding that it would only consider the documents in the certified transcript. As a result, the trial court reversed the board’s decision, finding that the record did not show that the board made the decision to uphold the student’s expulsion at a public meeting, as required by RC 3313.66(E). The court ordered the board to reinstate the student. The board appealed.
On appeal, the board contended that the trial court lacked jurisdiction to act because the record did not contain a final, appealable order. The board argued that a public body speaks only through its minutes and that the trial court deprived itself of jurisdiction when it struck from the record the minutes of the meeting. The student contends that the letter her attorney received from the superintendent constituted a final order.
The court rejected the board’s argument, finding that because the letter was a decision that determined the rights, duties, privileges, benefits or legal relationships of a person, it constituted a final order. As a result, the trial court had jurisdiction to consider the matter.
Ohio county board of elections did not violate open meetings act when it convened in executive session with board counsel.
State ex rel. Hardin v. Clermont Cty. Bd. of Elections, 2012-Ohio-2569.
www.sconet.state.oh.us/rod/docs/pdf/12/2012/2012-ohio-2569.pdf
Ross Hardin filed a complaint against the Clermont County Board of Elections alleging that the board violated the Ohio Open Meetings Act when it: 1) convened into executive session on Aug. 26, 2008, and July 23, 2009, under the guise of meeting with legal counsel even though there was no pending or imminent court action involving the board, and 2) convened into executive session on 18 separate occasions for the purpose of discussing “personnel matters.”
On Aug. 26, 2008, the board convened into executive session “to seek legal counsel” regarding a petition to surrender the corporate powers of a village. The board’s counsel was present at the executive session and the general public was excluded from the session.
On July 23, 2009, the board convened into executive session to “discuss a possible pending legal matter” relating to a protest filed by Hardin that contested a candidate’s petition for municipal clerk of courts. The board went into executive session, and upon resuming its public meeting, the board announced it would hold a hearing on Hardin’s protest.
The trial court found that the board’s 18 executive sessions convened to discuss “personnel matters” violated the open meetings act, the Aug. 26, 2008, executive session did not violate the open meetings act, and the July 23, 2009, executive session violated the open meetings act. The board appealed.
On appeal, the court agreed with the lower court’s analysis with regard to the Aug. 26, 2008, executive session. The executive session did not violate the open meetings act because during that session, the board only “received general legal advice as to the process and methodology for dealing with a petition to dissolve a village’s corporate powers.” No deliberations or debate took place during the executive session.
The court of appeals disagreed with the trial court’s holding with regard to the July 23, 2009, meeting. In light of the board member’s testimony, the court found that the July 23, 2009, executive session was nothing more than an information-seeking session with the board’s legal counsel and did not involve deliberations among the board members. As a result, the court found that the trial court properly held that the Aug. 26, 2008, executive session did not violate the open meetings act, but that the trial court erred in holding that the July 23, 2009, executive session violated the open meetings act. The parties stipulated that the board violated the open meetings act when it entered into executive session on 18 separate occasions and that issue was not discussed on appeal.
New York Supreme Court rules that school board did not violate New York Open Meetings Law by conducting executive session.
In Re Paladino, No. I2012-2145 N.Y. App. Div. (July 11, 2012)
http://download.gannett.edgesuite.net/wgrz/news/judgesdecisiononpaladinolawsuit.pdf
On June 13, 2012, the board voted during an open and regularly scheduled meeting to conduct an executive session to discuss a personnel matter. After the executive session, the board returned to its open meeting and announced its nomination for the superintendent position. The board did not discuss the reasoning behind its nomination or vote.
The board went into executive session during an open meeting on June 27, 2012, to discuss a contractual matter with their attorney. The contractual matter was a transition agreement between the board and the new superintendent. Following the executive session, the board returned to its open meeting and approved the transition agreement. However, the board did not discuss the reasoning behind its approval.
Carl Paladino filed a petition alleging that the board violated the Open Meetings Law by failing to “properly convene its executive sessions” and by failing to publicly discuss its reasoning for appointing a new superintendent. Paladino also alleged that the board failed to publicly discuss its reasoning for approving the transition agreement. The board argued that it was not compelled to publicly disclose the information discussed during the executive session or the reasoning behind the board’s vote. In addition, the board contended that an exception to the Open Meetings Law allowed them to discuss the hiring of the superintendent during executive session.
The New York Supreme Court held that the board was within its right to conduct the executive sessions. The court determined that the board did not vote during the executive sessions, but did vote and make the nomination during the open meeting. Paladinio did not establish good cause in order to invalidate the board’s actions during the executive sessions. As a result, the court ruled that New York’s Open Meetings Law did not compel the board to state the reasoning behind its decision-making process.
School board failed to comply with statutory evaluation procedures when evaluating teacher.
Saul v. Jefferson Township Local Sch. Dist. Bd. of Edn., 2012-Ohio-1574
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2012/2012-Ohio-1574.pdf
George Saul was a teacher in Jefferson Township. After five years of teaching, Saul was notified that his teaching contract would be nonrenewed by the board for the 2010-2011 school year. Saul requested a hearing in June 2010, and the board affirmed its decision. The board believed that nonrenewing Saul’s contract was best for the students.
Saul appealed the decision. The board argued that the district was in fiscal emergency and decided to reduce teachers that fell short of state standards. The trial court found that the board failed to follow the statutory evaluation procedures under RC 3319.111. The board was ordered to re-employ Saul and pay full back pay. The board appealed.
The court of appeals ruled that the trial court did not err by ordering the board to re-employ Saul. In addition, the back pay that the board was ordered to pay represented an award of damages incurred by Saul as a result of the board failing to comply with the statutory evaluation procedures. The court of appeals ruled that the board was entitled to a determination of the amount of set off or reduction that applied to the back pay award. As a result, the court of appeals reversed the trial court’s order awarding back pay and remanded that portion of the decision for further proceedings in order to determine the amount of back pay entitled to Saul.
Court of appeals affirms judgment for board to reinstate teacher.
Driver v. Jefferson Township Local Sch. Dist. Bd. of Edn., 2012-Ohio-1570
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2012/2012-ohio-1570.pdf
Ernestine Driver was employed as a teacher with the Jefferson Township Local (Montgomery) School District Board of Education. In April 2010, the board decided to nonrenew Driver’s teaching contract. On April 27, 2010, the superintendent provided Driver with the board’s notice of recommendation to nonrenew her teaching contract for the 2010-2011 school year. Driver requested a written statement from the board with an explanation as to why the board was recommending her contract be nonrenewed. After receiving the board’s reasoning for nonrenewal, Driver demanded a hearing. The board affirmed its recommendation.
Driver appealed and argued that the board did not comply with the evaluation procedures in its Pilot Teacher Evaluation Program (Pilot Program), which was incorporated into the board’s collective bargaining agreement (CBA). Driver argued that the Pilot Program superseded the statutory requirements under RC 3319.11 and 3319.111. She contended that she was entitled to reinstatement as a teacher and back pay. The board argued that the evaluation procedures in the Pilot Program and CBA did not supersede the statutory requirements. In addition, the board argued that it complied with the statutory requirements under RC 3319.11 and 3319.111.
The trial court ruled in favor of Driver and ordered the board to re-employ her. The court determined that the board did not comply with RC 3319.111 (B) when Driver’s performance was evaluated. As a result, Driver was entitled to back pay. The board appealed.
The court of appeals ruled that the trial court did not err. Additionally, the court of appeals remanded the issue regarding the amount of back pay owed back to the trial court for a hearing to determine the amount in which Driver was entitled and the amount of set off.
Court of appeals affirms suspension of teacher because teacher’s conduct constituted conduct unbecoming a teacher.
Robinson v. Ohio Dept. of Edn., 2012-Ohio-1982
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2012/2012-ohio-1982.pdf
Craig Robinson was a veteran teacher with the Dayton City School District (DCS). On June 8, 2009, Robinson viewed an email with pictures of a woman wearing a bathing suit and showing her “bare breasts and pubic area.” He accessed the email on a classroom computer of a fellow teacher, and showed the pictures while students were present in the classroom. However, the students did not see the pictures. The fellow teacher reported the pictures to the principal.
Robinson was placed on administrative leave and was suspended without pay for five days. DCS filed an educator misconduct reporting form with the Ohio Department of Education (ODE). Robinson requested a hearing with ODE. Robinson argued that his conduct was not considered unbecoming an educator. The hearing officer determined that Robinson’s conduct was conduct unbecoming a teacher in violation of RC 3319.31(B)(1).
The hearing officer recommended a one-year suspension of Robinson’s teaching license, with all but 60 days suspended to occur during the summer months. The Ohio State Board of Education rejected Robinson’s objections to the hearing officer’s recommendations, but Robinson appealed to the Montgomery County Court of Common Pleas. However, the trial court affirmed the Ohio State Board of Education’s decision. Robinson then filed another appeal.
The court of appeals affirmed the trial court’s ruling and held that Robinson’s suspension was not contrary to law. The court of appeals also found that Robinson’s conduct was unbecoming as an educator because he showed inappropriate pictures on a school computer while students were in the classroom. It did not matter that the students did not view the pictures. Robinson’s suspension remained.
Sixth circuit rules that reasonable jurors could have determined that school board’s response to sexual harassment constituted deliberate indifference under Title IX.
Mathis v. Wayne Cty. Bd. of Edn., 6th Cir. No. 11-5979 (Aug. 23, 2012)
http://www.ca6.uscourts.gov/opinions.pdf/12a0939n-06.pdf
John and James Doe were seventh-grade students and members of the Waynesboro Middle School (WMS) basketball team. The eighth-graders on the team subjected John and James to pranks such as lights out and blind-folded sit-ups.
John’s mother met with the principal after several pranks occurred. The basketball coach learned of one of the incidents, but did not report it. The principal informed John’s mother that he could not take any action until the director of schools returned from out of town. Subsequently, the principal determined that there was sufficient evidence to suspend the perpetrators from school and the basketball team. In addition, the coach was issued a written reprimand for failing to report an incident. Tammy McGuire, mother of James Doe, met with the principal to discuss her concerns over locker room misconduct, but the principal did not indicate whether he would conduct an investigation.
As a result of the continuous harassment, John and James were removed from WMS. Their parents sued the board, alleging student-on-student sexual harassment under Title IX. The board moved for a judgment as a matter of law, but was denied. The jury found in favor of the parents and awarded them $100,000 each. The board appealed.
The court of appeal’s affirmed the district court’s decision. The court ruled that there was sufficient evidence in which reasonable jurors could have concluded that the board’s response to the sexual harassment claims constituted deliberate indifference. The court determined that the jury could have viewed the evidence from one of the pranks as a serious sexual assault requiring a more severe punishment than what was given. Additionally, the court stated that by allowing the alleged perpetrators to return to the team, the jurors could have viewed that as unreasonable.
In addition, the court found that the evidence presented suggested that the board took little to no immediate action to investigate or protect the students from the harassment. The evidence indicated that the school officials did not focus their attention on the continuing harassment that the students endured. As a result, the court affirmed the trial court’s decision.