Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Sunday, April 27, 2014

Weber, In Defense of IDEA Due Process

I am delighted to announce that Professor Mark Weber (DePaul Law School) just published another excellent paper on the IDEA. This one concerning the right to due process. The name of the paper is In Defense of IDEA Due Process. It is available for a free download here.  The abstract provides:

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. 

This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and that others are overstated. The system is generally fair to the various classes of parents, even if some parents are better able than others to use it effectively. Costs are remarkably low given the number of children receiving special education, and hearings and hearing requests have been in decline for years. Far from being futile, the due process hearing system is one in which parents win a significant percentage of cases. And far from being out of control, hearings are generally being managed effectively. The system could be rendered still more efficient with a few modest reforms of the special education statute and its interpretation.

Mitchell H. Rubinstein

April 27, 2014 in Education Law | Permalink | Comments (0)

Monday, February 24, 2014

Maine Supreme Judicial Court rules in favor of transgender student on bathroom issue

The Maine Supreme Judicial Court, in a 6-1 split, has ruled that a school district violated a transgender student’s rights under the Maine Human Rights Act  when it prohibited her from using the girls’ communal restroom at school.

- See more at: http://legalclips.nsba.org/2014/02/06/maine-supreme-judicial-court-rules-in-favor-of-transgender-student-on-bathroom-issue/?utm_source=NSBA+e-Newsletter+Subscribers&utm_campaign=f0060b79c1-Legal+Clips+Newsletter&utm_medium=email&utm_term=0_498fb22860-f0060b79c1-309615025#sthash.kTjL9NbB.dpuf

Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)

February 24, 2014 in Constitutional Law, Education Law | Permalink | Comments (0)

Sunday, October 6, 2013

Drunken Run Could Leave Cornell Liable for Fatal Fall

Cornell University is potentially liable for the death of an intoxicated student who ran off the edge of a cliff in the middle of the night, even though the institution would have been immune if the youth had been using the campus hiking path for its intended purpose. The case is  King v. Cornell University, 2013 NY Slip Op 23278.


Read more: http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202616336104&Drunken_Run_Could_Leave_Cornell_Liable_for_Fatal_Fall#ixzz2dC6lbPVJ

Mitchell H. Rubinstein

October 6, 2013 in Education Law, New York Law | Permalink | Comments (0)

Wednesday, September 4, 2013

resigning one's employment to join a relocated spouse may, in certain circumstances, constitute good cause for leaving one's employment

Matter of Fuentes v Commissioner of Labor, ____A.D. 3d___(3d Dep't. July 25, 2013), is an interesting case because it discusses the fact that one can resign to join a relocated spouse, and still get unemployment. As the court explained:

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment as a machine operator without good cause based on personal reasons when continuing work was available (see Matter of Cole [Horan—Commissioner of Labor], 45 AD3d 1229, 1230 [2007]; Matter of Cisneros [Commissioner of Labor], 18 AD3d 1000, 1001 [2005]). While claimant asserts that his resignation was due to economic necessity caused by a periodic nonpermanent reduction in his work hours that had been agreed to by the employer and the union, the Board did not find this explanation credible (see Matter of Felix [Pepsi Cola Newburgh Bottling Co.—Commissioner of Labor], 14 AD3d 926, 927 [2005]). Instead, the Board noted that claimant's resignation letter acknowledged that his monthly expenses were being met and claimant also testified at the hearing that he was voluntarily sending money each week to his wife and children, who had moved to Florida. Although resigning one's employment to join a relocated spouse may, in certain circumstances, constitute good cause for leaving one's employment (see e.g. Matter of Stuber [Shanken Communications—Commissioner of Labor], 253 AD2d 972, 972 [1998]), here, claimant testified that his family had moved away over a year prior to his resignation and he would have remained working for the employer had his hours not been reduced. Accordingly, we find no basis to disturb the Board's decision that claimant did not demonstrate good cause to leave his [*2]employment (see Matter of Dawson [New York City Health & Hosps. Corp.—Commissioner of Labor], 30 AD3d 943, 944 [2006]).

September 4, 2013 in Education Law | Permalink | Comments (0)

Saturday, March 9, 2013

South Dakota Authorizes Teachers To Have Guns

What is this world coming to. South Dakota recently became the first state in the union to specifically authorize teachers to carry guns. Details are in this New York Times article, here. As the article states:

While some other states have provisions in their gun laws that make it possible for teachers to be armed, South Dakota is believed to be the first state to pass a law that specifically allows teachers to carry firearms.

About two dozen states have proposed similar bills since the shootings in December at Sandy Hook Elementary School in Newtown, Conn., but all of them have stalled.

 

Mitchell H. Rubinstein

March 9, 2013 in Education Law | Permalink | Comments (0)

Tuesday, February 26, 2013

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.
Decisions of the Commissioner of Education, Decision No. 16,450
In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and theEducational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.
The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”
As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

February 26, 2013 in Education Law | Permalink | Comments (0)

Saturday, February 9, 2013

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source: NSBA Legal Clips; Free subscriptions available atwww.nsba.org/legalclips. Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.
The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.
Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.
After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.
The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”
The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.
O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.
Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.
The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”
Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

February 9, 2013 in Education Law | Permalink | Comments (0)

Sunday, January 27, 2013

Student Can Be Required To Wear ID Badge

A.H. v. Northside Indep. Sch. Dist., No. 12-1113 (W.D. Tex. Jan. 8, 2013), is an interesting decision. There, a federal district court denied a student’s motion for a preliminary injunction barring a school district from transferring her from the specialty program she attends back to her base school because she refuses to wear the required ID badge while on campus. The court rejected her claims that being required to wear the badge violated her First Amendment rights to the free exercise of religion and free speech, and her Fourteenth Amendment rights to due process and equal protection. In addition, the court found that the ID badge requirement did not violate her rights under the Texas Religious Freedom Act.

Mitchell H. Rubinstein

January 27, 2013 in Education Law | Permalink | Comments (0)

Sunday, January 13, 2013

Michigan student arrested for making online threats to teache

The Associated Press (AP) reports in the Huffington Post that a 16-year-old student in Southern Michigan has been arrested after authorities said he threatened a teacher in an online posting, the latest clampdown on unruly students in the wake of the recent Connecticut school massacre.

Huffington Post, 12/21/12, By The AP

January 13, 2013 in Education Law | Permalink | Comments (0)

Monday, January 7, 2013

Texas district allows teachers to carry concealed weapons at school

Source:  Times-Picayune, 12/20/12, By Juan A. Lozano and Nomaan Merchant (AP)

What is this world coming to???

Mitchell H. Rubinstein

January 7, 2013 in Education Law | Permalink | Comments (1)

Thursday, January 3, 2013

Court Upholds Suspension of Student From Columbia University For Cheating

It is virtually impossible to sucessfully challenge an academic dismissal for cheating. Choi v. Columbia University, ____Misc. 3d____(N.Y. Co. Dec. 5, 2012), is a typical decision upholding the dismissal. 

Mitchell H. Rubinstein

January 3, 2013 in Education Law | Permalink | Comments (0)

Wednesday, December 26, 2012

Some School Districts To Begin Offering Online Classes

Online education is here to stay. Now, there are some K-12 districts that are considering online classes. A NY Times article about this is available here

I am not a big fan on online education on the college, law school or secondary level. An important part of education is learning to interact with peers, professors and others. It is also just too easy to take short cuts with an online class as the student may be watching TV instead of the screen. 

Online education also raises a host of labor law and other issues. Does anyone have an opinion about this.

Mitchell H. Rubinstein

December 26, 2012 in Education Law | Permalink | Comments (2)

Thursday, December 13, 2012

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427
A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.
The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.
Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*
The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.
After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”
The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”
The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.
* The teacher was later restored to service at the school..
The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16427.html

Reprinted by permission

New York Public Personnel Law

Mitchell H. Rubinstein

December 13, 2012 in Education Law | Permalink | Comments (0)

Tuesday, November 13, 2012

Reimbursing a school board member's legal expenses incurred in litigation

Decisions of the Commissioner of Education, Decision No. 16,422
The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,”considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.
§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."
The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.
Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 
The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 13, 2012 in Education Law | Permalink | Comments (0)

Wednesday, October 31, 2012

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.
The Appellate Division affirmed the lower court’s ruling, explaining that::
1. The school and the school district failed to make a prima facieshowing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and
2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”
The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”
Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York84 NY2d 44
The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

October 31, 2012 in Education Law | Permalink | Comments (0)

Tuesday, October 23, 2012

School Board Members Face Jail For Contempt

This is a first. An Iowa state court judge has reportedly found a school board in contempt and will order the members jailed if they do not comply with a court order which mandated the reinstatement of a principal. Rouse v. Durant School District, In his written ruling,

The court stated:given that “[g]iven the actions of the school board members, the Court finds that they should be individually fined the sum of $500 and shall serve 30 days in the Cedar County Jail.” Judge Smith said, however, that school board members could avoid the contempt ruling by giving Rouse “all of her duties, privileges, authority and rights that she enjoyed prior to her termination as principal of Durant High School.” It is not clear how much time the board has to comply.

Mitchell H. Rubinstein

October 23, 2012 in Education Law | Permalink | Comments (0)

Monday, October 22, 2012

Employee on Unpaid FMLA Leave Does Not Accrure Seniority

Appeal of DONNA SCARPINATI DE OLIVEIRA, No. 16,411 (Commissioner of Education Sept. 18, 2012). As the Commissioner explains:

Petitioner was granted an unpaid leave of absence effective September 1, 2009 through October 13, 2009, totaling 23 days of unpaid leave.  It is well settled that days spent on unpaid leave of absence may not be included in determining seniority (Appeal of Goldman, 43 Ed Dept Rep. 338, Decision No. 15,011; Matter of Halayko, 23 id. 384, Decision No. 11,254).  Petitioner argues that, because she took unpaid leave pursuant to the FMLA, such days must still be included in calculating her seniority.[2] However, 29 C.F.R. §825.215(d)(2) specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave” (emphasis added).  Moreover, a guidance letter from the U.S. Department of Labor states, in pertinent part, “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave[.]”  As an example, the letter further states, “[i]f the employer’s established leave policies do not permit the accrual of seniority during an unpaid leave of absence, this same policy would apply to unpaid leave covered by the FMLA leave”  (U.S. Department of Labor; Employment Standards Administration; Guidance Letter; FMLA – 109; September 8, 2000)  (emphasis added).  Petitioner, thus, has not demonstrated any entitlement to include the days she was on unpaid leave in the calculation of her seniority.

October 22, 2012 in Education Law | Permalink | Comments (0)

Wednesday, October 10, 2012

Oregon federal magistrate recommends that First Amendment free speech claim based on bus driver’s termination for Confederate flag display should proceed to trial

Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012), is an interesting case. An Oregon  U.S. Magistrate Judge has recommended that the district court should deny the motions for summary judgment filed by a school district and private contractor, and that a school bus driver should be allowed to proceed to trial with his Section 1983 First Amendment claim regarding his suspension and termination for refusing to remove a Confederate flag from display on his vehicle while parked at work. The magistrate stated there was a sufficient factual dispute that: (1) the bus driver’s employer, a private contractor, acted under color of state law under either the “compulsion” or “joint action” test; and (2) the bus driver’s free speech rights were violated under the five-part test established in Pickering v. Board of Education, 391 U.S. 563 (1968), when he was disciplined and later discharged.

Mitchell H. Rubinstein

October 10, 2012 in Education Law, First Amendment | Permalink | Comments (0)

Tuesday, October 9, 2012

Illinois Supreme Court rules that former district owes duty of care to provide hiring district with accurate employment information

Doe-3 v. McLean Cnty. Unit Dist. No. 5, Nos. 112479/112501 (Ill. Aug. 9, 2012), is a major decision from the Illinois Supreme Court. The majority held that the first district that formerly employed the teacher had engaged in conduct that gave rise to a duty when it falsely stated on the second district’s employment verification form that the teacher had worked for the entire 2004-05 school year. The majority pointed out that when the second district requested a completed form from the first district, that request gave rise to a duty for the first district to provide factually accurate information on the form. The majority concluded that the students had stated a colorable claim based on their allegation that the first district had breached its duty, creating a risk of harm to the students.

It appears that decisions like this will just encourage no-comment letters.

Mitchell H. Rubinstein

October 9, 2012 in Education Law, Employment Law | Permalink | Comments (1)

Saturday, October 6, 2012

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2nd Circuit, Docket #10-4304-cv
The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”
Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity** was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.
This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.
In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”
In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.
* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”
** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].
The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

October 6, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)