Adjunct Law Prof Blog

New Twist On Evolution Debate

A Teacher on the Front Line as Faith and Science Clash is a very interesting August 24, 2008 New York Times article. Normally, when we hear about the evolution debate in schools it is because a school board is trying to mandate some type of biblical creation story as part of the school curriculm. As this story reports, however, Florida is now mandating that the theory of evolution be taught in schools. The article includes a chart which illustrates that only 6 states expressly mandate that evolution be taught.

Query whether a challange to this curriculm would suffer from the same constitutional infirmities as the biblical story of creation? I believe it would.

Mitchell H. Rubinstein

Public Schools Thinking About 4 Day School Week

Schools Debate A Four-Day Week is an interesting story from the August 10, 2008 Parade.com. Why? To save costs. However, there is a problem and its a big problem. Parents work 5 days a week and if their children were in school for only 4, this would lead a void. However, this is an interesting thought.

Mitchell H. Rubinstein

Hat Tip: School and Education Law Blog 

Corporal Punishment Today

For many of us who practice Education Law, we just assume that corporal punishment is illegal. However, it is not actually "unlawful" in the sense of being a crime. Many states prohibit this practice and discipline teachers and administrators for utilizing it. However, a number of states do not even go that far.  Several states allow corporal punishment to actually be practiced. In those states, the only restriction on the use of corporal punishment is that it cannot be "excessive."

An August 20, 2008 CNN story entitled "More than 200,000 kids spanked at school" discusses the use of corporal punishment today. It includes a map of the 21 states where corporal punishment is permitted, available here.

The article discusses a U.S. Department of Education report which documented that more than 223,000 students had corporal punishment inflicted upon them last year. As the article states:

Corporal punishment in schools remains legal in 21 U.S. states and is used frequently in 13: Missouri, Kentucky, Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Georgia, South Carolina, North Carolina, Tennessee and Florida, according to data received from the Office for Civil Rights at the U.S. Department of Education and cited in the report.

The highest percentage of students receiving corporal punishment was in Mississippi, with 7.5 percent of students. The highest number was in Texas, with 48,197 students.

"When you talk to local school officials, they point to the fact that it's quick and it's effective -- and that's true," Farmer said. "It doesn't take much time to administer corporal punishment, and you don't have to hire someone to run a detention or an after-school program."

But she said, "We need forms of discipline that makes children understand why what they did was wrong."

In addition, corporal punishment can be linked to poverty and lack of resources. For instance, the report said, "Teachers may have overcrowded classrooms and lack resources such as counselors to assist with particularly disruptive students or classroom dynamics."

The New York Times also covered this on August 20, 2008 and that article discusses the fact that more racial minorities are "paddled" than white students. That article is available here.

Corporal punishment is just wrong. Our schools should not be in the business of hitting children no matter what they do. The line between what is excessive and what is not is thin and corporal punishment can leave children with permanent scars. Its use can also be abused by schools. It is time for a federal law to be enacted which puts a stop to this dated practice for once and for all.

Mitchell H. Rubinstein 

New York May Ban Bullying In Schools

New York State Senate Gets Bill Banning Bullying Acts in the Schools  is an interesting August 8, 2008 New York Times article about proposed anti-bullying legislation in schools. The legislation would require training and record keeping. The article, which is not particularly well written, describes the legislation as follows:

Legislation aimed at banning bullying in public schools, including harassment based on sexual orientation, has been quietly introduced in the State Senate. The legislation, which includes language protecting transgender students and teachers, has been a priority of advocates for gay and lesbian rights but was ignored for nearly a decade in the Senate.

Republicans introduced the bill this week, but no sponsor was listed.

This is an important development to watch.

Mitchell H. Rubinstein

School Officials Have Immunity If They Report Child Abuse

Under New York Social Service Law Sec. 413 as well as the law in several other states, school officials are mandated reporters of child abuse. J.H. v. County of Nassau, ___Misc. 3d___(Nassau Co. Aug. 5, 2008), Download JH.doc concerns the situation what if the school reporter is wrong. Can they be sued for defamation or in tort? The J.H. case held that they could not, reasoning:

In the instant matter, the school was required to report the alleged abuse of maltreatment of M.H. to CPS. While CPS eventually found the reports to be “unfounded”, the school was mandated to report the matter to CPS. (Rine v. Chase, 309 AD2d 796). As already provided, the school psychologist testified that M.H. told her that he was afraid to go home because he had prior physical altercations with his dad. Notably, while M.H. avers he never stated to anyone that he had prior physical altercations with his dad, M.H. did not address whether he specifically told the school psychologist that his dad threw a baseball at his head, missed and the ball hit the wall. The school psychologist was under a statutory duty to report suspected child abuse, and under the circumstances at bar, acted on reasonable suspicion. (Miller v. Beck, supra.)

The plaintiffs, in opposition, have not come forward with proof indicating that the school psychologist, the curriculum associate for Special Education, the principal and/or the assistant principal were acting with malice, ill-will and revenge, when the school contacted CPS. The plaintiffs surmise that the school acted in revenge, and/or out of fear of plaintiff reporting the school to the superintendent, as a result of the difficulty that plaintiff was having with the school on the language exempt issue. However, the plaintiffs have not produced evidence or facts, other then mere conclusions or speculation, from which a jury could infer malice. (Shapiro v. Health Ins. Plan of Greater New York, 7 NY2d 56). Suspicion, surmise or accusations will not suffice. (Escalera v. Favaro, 298 AD2d 552). “The existence of earlier disputes between the parties is not evidence of malice”. (Shapiro v. Health Ins. Plan of Greater New York, supra.) As the plaintiffs have not presented factual allegations of malice or ill will on the part of the school district or school psychologist, plaintiff’s complaint requires dismissal. (Miller v. Beck, supra.)

In light of the foregoing, the defendants’ motion is granted and therefore, plaintiffs’ action is dismissed.

MItchell H. Rubinstein

School Must Recognize Gay Student Club

Gonzalez v. Sch. Bd. of Okeechobee County, ___F. Supp. 2d ___ (S.D. Fla. July 29, 2008), is an important case to be aware of.  A  Florida federal district court held that a high school Gay-Straight Alliance (GSA) is entitled to recognition as a noncurricular student group under the federal Equal Access Act (EAA). The court  alos held that the denial of such recognition by the School Board also violated the students’ free speech rights.

After the principal denied a request by group of students to recognize their GSA club, they sought but failed to obtain recognition from the school board. They sued, alleging violation of the EAA and sought recognition on the same basis as other noncurricular student group. The board subsequently adopted a new policy that which provided that "no club or organization which is sex-based or based upon any kind of sexual grouping, orientation, or activity of any kind shall be permitted.” They cited this policy as justification for denying recognition even though other noncurricular student groups were recognized.

In a lengthly decision, the court rejected the Boards various arguments and granted the students summary judgement. Specifically, the court rejected the contention that recognizing the GSA would jeopardize federal funding the district receives for its abstinence-only sexual education program and would violate a Florida law that mandates abstinence as the core feature of such programs. Quite simply, the Supreme Court has made clear that recognition of a noncurricular student group does not amount to endorsement of that group.

The court also extensively reviewed student First Amendment rights.  The court held that the “substantial disruption” standard established in Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), was controlling because a message of tolerance for non-heterosexual students is political expression. Applying this standard, the court concluded that the GSA's message of tolerance would not “materially or substantially interfere with discipline in the operation of the school.”  In a nutshell, the school board had failed show that it refusal was motivated “by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”

Mitchell H. Rubinstein

Major California Decision Approves of Home Schooling

Jonathan L v. The Superior Court, ___Cal. App. 3d___(Calif. App. Div. 2d Dist. Aug. 8, 2008), is a major home schooling decision. The problem with home schooling is that parents are not generally credentialed as teachers. The court reversed an earlier decision disapproving of home schooling on that basis because of developments in other related areas of the law. As the court reasoned:

  Our first task, interpreting the law of California, is made more difficult in this
case by legislative inaction. As we will discuss at length below, home schooling was
initially expressly permitted in California, when the compulsory education law was
enacted in 1903. In 1929, however, home schooling was amended out of the law, and
children who were not educated in public or private schools could be taught privately
only by a credentialed tutor. Case law in 1953 and 1961 confirmed this interpretation,
and specifically concluded that a home school could not be considered a private school.
While the Legislature could have amended the statutes in response to these cases, to
expressly provide that a home school could be a private school, it did not do so.
Thus, as of that time, given the history of the statutes and the Legislature’s
implied concurrence in the case law interpreting them, the conclusion that home
schooling was not permitted in California would seem to follow. However, subsequent
developments in the law call this conclusion into question. Although the Legislature did
not amend the statutory scheme so as to expressly permit home schooling, more recent
enactments demonstrate an apparent acceptance by the Legislature of the proposition
that home schooling is taking place in California, with home schools allowed as private
schools. Recent statutes indicate that the Legislature is aware that some parents in
California home school their children by declaring their homes to be private schools.
Moreover, several statutory enactments indicate a legislative approval of home
schooling, by exempting home schools from requirements otherwise applicable to
private schools.
We are therefore confronted with: (1) compulsory education statutes which were
apparently intended to eliminate the permission previously granted to home school; and
(2) later enactments which reflect the Legislature’s understanding that the compulsory
education statutes permit home schooling, as a species of private school education.
Under these circumstances, it is our view that the proper course of action is to interpret
the earlier statutes in light of the later ones, and to recognize, as controlling, the
Legislature’s apparent acceptance of the proposition that home schools are permissible
in California when conducted as private schools.

The School Law Blog reports that Gov. Arnold Schwarzenegger and home schooler supported hailed this decision and there are 166,000 home-schooled children in California. An LA Times article about this case is available here.

Look for this case to go to the California Supreme Court. Law review commentary on this issue would be welcomed.

Hat Tip: School Law Blog

Washington Supreme Court Holds Unsubstantiated Allegations Of Sexual Misconduct By Teachers Does Not Have To Be Disclosed

One of the most difficult issues in education law to deal with are teachers accused of sexual misconduct. Some of these teachers are undoubtably guilty; however many are not. Should the names of teachers who are not convicted be subject to disclosure? No says a divided Washington Supreme Court in Bellevue John Does 1-11 v. Bellevue School District (July 31 ,2008) in a 34 page opinion. As the majority stated:

Sexual abuse of children by school teachers is a terrible atrocity. Allegations
of such abuse should be thoroughly investigated by school districts and, if the
allegations are substantiated, the media may request records containing the identity
of the perpetrating teacher. However, when such allegations are determined to be
unsubstantiated, the identity of the teacher is exempt from disclosure to a public
records request because such disclosure would violate the teacher’s right to privacy.
Thus, we hold the identities of public school teachers who are subjects of
unsubstantiated1 allegations of sexual misconduct are exempt from disclosure under
Washington’s public disclosure act (PDA), former chapter 42.17 RCW, amended
and recodified as chapter 42.56 RCW (Laws of 2005, ch. 274)

We also hold that letters of direction3 must be released to the public, but
where a letter simply seeks to guide a teacher’s future conduct, does not identify an
incident of substantiated misconduct, and the teacher is not subject to any form of
restriction or discipline, the name of the teacher and other identifying information
must be redacted. In short, when there is an allegation of sexual misconduct against a public
school teacher, the identity of the accused teacher may be disclosed to the public
only if the misconduct is substantiated or the teacher’s conduct results in some form
of discipline.

Mitchell H. Rubinstein

Hat Tip: School Law Blog

Important New Law Review Article On IDEA Eligibility

DePaul Law School Professor Mark Weber just published on SSRN an important law review article entitled "The IDEA Eligibility Mess." The abstract provides:

The Individuals with Disabilities Education Act (IDEA)
guarantees students with disabilities a free public education
appropriate to their needs, but students must meet the definition of
"child with a disability" to be eligible for that entitlement.  The law
governing special education eligibility, however, is charitably
characterized as a mess.

       There are several sources of the current eligibility confusion.
First, recent court cases have reached conflicting conclusions about how
much adverse educational impact the child's disabling condition must
have, what constitutes a sufficient need for special education, and when
children with emotional disabilities are eligible.  Second,
long-established methods for assessing learning disabilities have
withered under criticism from educational experts, and a new method of
approaching learning disabilities, response-to-intervention, is being
touted by the United States Department of Education.  Nevertheless, that
innovation remains largely unproven and may be impossible to implement
at scale.  Third, Congress and others have focused long-overdue
attention on the disproportionate percentage of African-Americans who
are found eligible for special education under the disability categories
of mental retardation and emotional disturbance, but neither Congress
nor anyone else appears to have a promising idea about how to address
the situation.

       This Article analyzes and critiques the recent cases, describes
and comments on the new learning disability assessment methodology, and
evaluates competing ideas about how to respond to ethnic disproportion.
It concludes that the solution to the entire set of problems is not a
redefinition of special education eligibility under IDEA, but rather a
renewed attention to the actual terms of the statute and the goal of
full educational opportunity.  This step will promote what might be
called "not-quite-so-special education," that is, an entitlement for a
broad class of children to high quality special education supports
provided in the regular educational environment.

This article is comprehensively footnoted and well written. Scholars and attorneys should find this article helpful. I recommend it.

Mitchell H. Rubinstein

Dental Student Unsuccessfully Sues NYU For Failing To Allow Him To Complete His Degree. Case Should Have Been Brought As Under Article 78

Eidlisz v. New York University, ___Misc. 3d___(N.Y. Co. July 28, 2008), is an important Education Law decision to be aware of. A NYU dental student sought to re-enroll 2 years after he found out that he did not complete all the degree requirements. However, because he did not pay his bill, NYU refused to re-enroll him. The student claimed that he never got correspondence from NYU concerning his bill because he moved. The court did not address the merits of this claim because the case was dismissed as time barred. The court held that this type of case should have been brought as an Article 78 proceeding, which of course, has a 4 month statute of limitations. As the court stated:

The very nature of the relief sought here underscores the
conclusion that this case relates to the sort of academic and
administrative decisions that the court in Ansari indicated are
properly the subject of an Article 78 proceeding, rather than an
action on a breach of contract. An Article 78 proceeding, by its
nature, is brought to obtain relief in the nature of a w r i t of
certiorari, mandamus, or prohibition. CPLR 7801. Here, plaintiff
seeks an order directing defendants to award him his degree. Such
an order relates to "the exercise of subjective professional
judgment'' (Gertler v Goodgold, 107 AD2d at 4 8 5 ) , in contrast with,
for example, an action for damages for breach of contract, or a
return of academic fees. See e . g . M a t t e r of Golomb v Board of
Educ. of C i t y School District of C i t y of New York, 92 AD2d 256 (2d
Dept 1983) (a petition seeking recovery of back salary is akin to
damages f o r breach of contract and cannot be made in an Article 78
petition).
Eidlisz cites M a t t e r of Olsson v Board of Higher Educ. (49
NY2d 408 [1980]), for the principle that the doctrine of equitable
estoppel may be applicable when seeking an order directing a
university to grant a degree. The Court notes, however, that
Olsson, as well as the cases of Matter of Healy v Larsson ( 6 7 Misc
2d 374 [Sup Ct, Schenectady County 19711, a f f d 42 AD2d 1051 [3rd
Dept 19731, affd 35 NY2d 653 [1974]) and Matter of Blank v Board of
Higher Educ. (51 Misc 2d 724 [Sup Ct, Kings County 1966]), cited in
Olsson, are a l l Article 78 proceedings, rather than actions at law.

This was a tough decision. It is important to be aware of this case. Normally, one only thinks of an Article 78 proceeding as being applicable in the public sector. This case demonstrates that Article 78 proceedings also apply in Education Law matters.

There is a provision of the CPLR which allows improperly plead cases to be converted to the proper procedural form. Unfortunately, the court did not discuss this. It may not have made a difference, because the statute of limitations in Article 78 proceedings is 4 months. It would have been helpful, however, if the court would have discussed this issue.

Mitchell H. Rubinstein 

11th Upholds Statute Which Exempts Students From Having To Recite Pledge of Allegiance If Parents Consent

Frazier v. Winn, ___F.3d___(11th Cir. July 23, 2008), is an important decision concerning the Pledge of Allegiance. A Flordia statute exempted students from having to recite the pledge with parental permission. The 11th held that this requirement did not violate the First Amendment.

The court held that this statue did not violate freedom of expression on its face. The parents has a fundamental right to control their children's upbringing. The court held that the statute was neutral on the pledge in that it deferred to the parent's expressed desire. The court also held that the state's interest in recognizing and protecting parental rights was sufficient to justify the restriction of somee student freedom of speech.

This decision was well written. The issue presented in this case is considerably easier than the broader question involving whether students can be forced to recite the Pledge. This is because the issue of parental rights is involved in this case.

Ultimately, I believe the Supreme is going to hold that students can be required to recite the Pledge for two reasons. First, we have a very conservative Supreme Court. Second, the Court has in recent years repeated recognized that student First Amendment rights are more restrictive than that of adults.

This issue is not going to go away and is an important one to watch.

Mitchell H. Rubinstein

Former Prof Looses Claim That NYU Must Give His Son Admission "Courtesies"

Flomenbaum v. NYU, ___Misc. 3d___ (N.Y. Co. June 23, 2008)Download Flomenbaum.doc , is an interesting case.

A doctor at NYU School of Medicine had an employment dispute concerning his tenure. It was eventually resolved by an agreement giving the doctor retroactive tenure and giving his children "the same courtesies" as active or retired tenured faculty member with regard to tuition reimbursement and admission. You guessed it; the doctors son applied for admission to NYU's undergraduate college and was denied admission. Thereafter, he commenced an action for breach of contract.

The plaintiff lost. NYU established that it complied with the agreement. The plaintiffs assertations that it did not consider certain "courtesies" was rejected as conclusionary. 

This case illustrates an important benefit of an academic appointment. Children of faculty at some schools are given courtesies with respect to admission and tuition. At certain schools, this may be a very valuable benefit.

Mitchell H. Rubinstein

Parent Attempts To Challenge School's First Grade Placement Decision of School District

Appeal of VICKI GERGELY, ___Ed. Dep't Rep. ___, No. 15, 742 (April 14, 2008), is an interesting case and well worth a read for students of education law. A parent was apparently so unhappy with the selection of her daughter's first grade teacher that she instituted this litigation. Not unsurprisingly, the District won. The Commissioner summarized the applicable law as follows: 

A board of education has broad authority, under Education Law §1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another.  Consistent with that authority, a board has the power to place students in particular classes (Appeal of J.K. and M.B., 40 Ed Dept Rep 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922).  The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of J.K. and M.B., 40 Ed Dept Rep 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Respondent submits an affidavit of the superintendent discussing the factors the district considers when assigning students to classes.  According to the superintendent, the district strives to maintain a “heterogeneous and diverse cohort” for each class.  As such, the district considers “male:female ratios; high, low; [sic] and median academic achievement; the required ‘pull-outs’ for special education and AIS services” in addition to specific input from teachers and any other “consideration that would relate to establishing a diverse and heterogeneous grouping.”  The district’s policy only considers parental preference where a specific teacher had previously taught an older sibling of the child in question.  The district’s policy also provides for a parent to request a transfer after the first quarter of the school year.

Petitioner has failed to demonstrate that the district did not consider these factors in developing the first grade assignments in her child’s school.

In any event, it is difficult to perceive what remedy the Commissioner could have ordered as the student is no longer in first grade. The Commissioner does not address that issue or the issue of mootness.

Mitchell H. Rubinstein

NY Commissioner of Education Issues Decision Summarizing Student Residency Cases

Matter of  Hoyt, ___Ed. Dep't. Rep. ___, No. 15, 771 (June 26, 2008), is an example of a common issue that arises in Education Law practices; student residency questions. The issue is important because students are entitled to a free public education where they reside. But where a student's residence is can become complicated when there is a joint custody. What is also interesting about this case is that the Commissioner did not find controlling 4 days of surveillance evidence. The Commissioner summarized the applicable standard as follows:

Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095).  “Residence” for purposes of Education Law §3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104).  A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of Innocent, 44 Ed Dept Rep 81, Decision No. 15,105).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849; Appeal of Weik and Teufel, 41 id. 80, Decision No. 14,621).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171).

Mitchell H. Rubinstein

Notices of Claim And Education Law

Right to Notice: The Bermuda Triangle of Education Law (registration required) is an important July 1, 2008 School Law article by Jerry Ehrlich. As this article points out, when suing a school district in New York, one should always think about whether a Notice of Claim is required under Education Law 3813. A Notice of Claim must be filed within 3 months of when the claim accrued, though courts liberally grant extensions so long as the statute of limitations for the underlying action or proceeding is still viable.

As this article also points out, another significant section of Education 3813 is that it establishes a maximum 1 year statute of limitations against actions against school districts. That is a huge advantage for school district lawyers and many plaintiffs are unaware of this requirement. The article also points out that substantial compliance with notice of claims requirements will suffice.

Unfortunately, the article cites a number of cases that are a bit dated. There has been significant case law developments in this area of the law in the last year. However, this article provides useful background and basic information about Notice of Claim requirements.

Mitchell H. Rubinstein

NYS Commissioner of Education No Longer Has Jurisdiction To Decide Education Law 3020-a Disciplinary Matters

Recently, the NYS Commissioner of Education issued two important decisions which reaffirm that he does not have jurisdiction to decide Education Law 3020-a disciplinary matters. In Appeal of T.W., ___Ed. Dept. Rep. ___, No. 15,735 (2008), the Commissioner held that he did not have jurisdiction to determine if the disciplinary charges were defective because charges served did not include a record of the votes of the board as to each of the five charges, as required by the applicable regulation. The Commissioner reasoned:

The appeal must be dismissed for lack of jurisdiction.  Education Law �3020-a was substantially amended by Chapter 691, of the Laws of 1994, effective for disciplinary charges filed on and after September 1, 1994.  Pursuant to that amendment, the Commissioner�s jurisdiction to review determinations of hearing officers, both final and nonfinal, has been removed (Appeal of Fauvell, 47 Ed Dept Rep ___, Decision No. 15,720; Appeal of Frajer, 41 id. 403, Decision No. 14,725; Appeal of Codi, 40 id. 26, Decision No. 14,410).  The amendment specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges (Education Law 3020-a[3][c][iii] and [iv]).  Petitioner�s request that I dismiss the charges would require my review of the merits, which is not within my authority (Appeal of McCall, 34 Ed Dept Rep 484, Decision No. 13,390).

Similarly, in Appeal of Fauvell, ___Ed. Dep't. Rep. __, No. 15, 720 (2008), the Commissioner held that he did not have jurisdiction to decide a motion to dismiss the disciplinary charges because they were preferred during the summer. The Education Law only permits charges to be filed during the school year. The Commissioner employed similar reasoning as above.

Mitchell H. Rubinstein

9th Enc Banc Opinion Reverses District Court Which Upheld Strip Search of 13 year Old

Redding v. Stafford Unified School Dist., ___F.3d___(9th Cir. (enc banc) is an important cases addressing the right of school officials to strip search students. The decision is 75 pages long and the decision is divided. The decision which appears to be well written is full of cites which should be of interest to scholars and Education lawyers. The decision basically boiled down to an interpretation of New Jersey v. TLO, 469 U.S. 325 (1985).The court held:

On the basis of an uncorroborated tip from the culpable
eighth grader, public middle school officials searched futilely
for prescription-strength ibuprofen by strip-searching thirteenyear-
old honor student Savana Redding. We conclude that the
school officials violated Savana’s Fourth Amendment right to
be free from unreasonable search and seizure. The strip search
of Savana was neither “justified at its inception,” New Jersey
v. T.L.O., 469 U.S. 325, 341 (1985), nor, as a grossly intrusive
search of a middle school girl to locate pills with the potency
of two over-the-counter Advil capsules, “reasonably related in
scope to the circumstances” giving rise to its initiation. Id.
Because these constitutional principles were clearly established
at the time that middle school officials directed and
conducted the search, the school official in charge is not entitled
to qualified immunity from suit for the unconstitutional
strip search of Savana.

This decision is well worth a read.

Mitchell H. Rubinstein

Hat Tip: California Blog of Appeal

Student On Teacher Sexual Harassment

We previously reported on student on teacher sexual harassment and about a shocking decision which placed a heighted burden on the teacher to establish sexual harassment because the student had special needs. Now comes word that a similar type of case is being litigated in California. 

HorseSense and Nonsense reports thatAdams v. Los Angeles Unified School District is expected to go to trial in September. Apparently, this case has been delayed.

This looks like an important case to watch.

Mitchell H. Rubinstein

Hat Tip: Jo Scott-Coe

 

Can Employees Recover Bonus Payments After Termination??

New York Law School Visiting Professor Howard Meyers wrote an interesing June 27, 2008 New York Law Journal article entitled Recovering Unpaid Bonus Payments in Turbulent Times (registration required). This article focuses on the securites industry, but this issue can literally arise in any industry.

As Professor Meyers points out, whether an employee can successfully assert a breach of contract action will largely depend upon whether or not that bonus is discretionary. If the bonus is discretionary, the employee is not likely to prevail. Of course, as the article points out, exactly what portion of an employees compensation is discretionary may be subject to litigation.

Many employees in the securities industry sign mandatory arbitration agreements. As a result, disputes over a bonus payment, or lack thereof, are often arbitrated.  Professor Meyers surveys some of the leading cases in this regard.

Unfortunately, Professor Meyers does not discuss state labor law issues which may be present if the employer refuses to pay a bonus if that bonus is non-discretionary and effectively part of the employees wages. See e.g., New York Labor Law Sec. 191.

Lawyers who practice in this field will certainly want to keep a copy of this article.

Mitchell H. Rubinstein

Former Law Student's Law Suit Against Law School For Failing To Obtain ABA Accredition Dismissed

  Rodi v. Southern New England School of Law, ___F.3d___(1st Cir. June 30, 2008) is an interesting case. A law school graduate brought suit against Southern New England School of Law because it did not receive ABA accredition and therefore, plaintiff could not sit for the N.J. Bar examination. His main legal theory was fraudulent misrepresentation.

In rejecting this claim, the court reasoned:

We do so because even assuming that Dean Larkin and Dean Prentiss made false statements
of material fact for the purpose of inducing Rodi to remain at
SNESL, no reasonable jury could find (1) that Rodi relied on their
statements, or (2) that his reliance was reasonable. We address
the frailties in Rodi's fraudulent misrepresentation claim in that
order.
Rodi claims that he relied on statements made by the
deans but this is directly contradicted by his own actions. In the
summer of 1998, following Larkin's statements, Rodi sent transfer
applications to two law schools: Rutgers and Seton Hall. Despite
Prentiss's letter asking him to reconsider his decision to seek a
transfer, Rodi chose not withdraw his applications. Rodi's
attempts to transfer to an ABA accredited law school strongly
suggest that he did not believe the deans' statements regarding
SNESL's prospects for ABA approval.
Rodi's failure to offer an explanation for his unyielding pursit of transfer is damning.

Mitchell H. Rubinstein

Tenured Teacher May Not Be Dismissed Without Due Process

Matter of Pollock v. Kiryas Joel Union Free School Dist., __A.D.3d___ (2d Dep't. June 17, 2008), demonstrates fundamental New York education law principals. A tenured teacher has a property interest in his job and cannot be disciplined without going through the disciplinary process provided by statute, which is Education Law 3020-a. The only exception to this is if the teacher voluntary enters into a settlement agreement. This there was no settlement agreement, the plaintiff a tenured teacher was entitled to full reinstatement and back pay.

What is surprising to me is that this case was actually litigated. It was litigated up to the Appellate Division no less. Unless there is something more, this appears to be an open and shut case for the plaintiff and if the Board appeals further they may actually run the risk of being sanctioned.

Mitchell H. Rubinstein

Pending Bill Provides That Teachers Convicted of Sex Crimes Will lose NYS Teaching License

Teachers convicted of sex crimes will lose NYS teaching license
Assembly Bill 11500-A -- Senate Bill 8553

Legislation providing for the automatic revocation of a teaching certificate held by any school official convicted of a sex offense has been passed by the New York State Assembly and the New York State Senate.

The new law will require District Attorneys to notify the State Education Department (SED) when teachers, school administrators or other professional educators are convicted of sexual offenses that require them to register on the state’s Sex Offender Registry.

This legislation “streamlines” the process for revoking a certificate and terminating employment of a teacher who would have already received due process in a criminal proceeding as the Commissioner of Education would not be required to conduct an administrative hearing before revoking the teacher’s license. Insofar as the individual’s appointing authority is concerned, the bill amends Education Law Section 3020-a[2](b), which will now provide that “The employee shall be terminated without a hearing, as provided for in this section, upon conviction of a sex offense ….”

However, the bill permits the Commissioner of Education to conduct a due process hearing and a school district may bring a disciplinary proceeding pursuant to Section 3020-a or pursuant to an alternative disciplinary proceeding set out in a collective bargaining or contractual agreement as a matter of discretion.

In addition, the bill provides for the restoration of the individual’s teaching license under certain conditions such as where the termination of employment was based solely on the conviction of a sex offense and the conviction has been set aside on appeal or otherwise reversed, vacated or annulled. This provision is similar to those set out in Section 30(e) of the Public Officers Law.

This act shall take effect immediately and shall apply to convictions of individuals occurring on or after such date.

Similar legislation providing for the automatic revocation of an administrator’s license upon his or her conviction for defrauding the government has also been passed by both houses of the State Legislature and is expected to be signed by the Governor. [See Administrator Fraud: A 11513-A; S 8554.]

The full text of A11500-A and S-8553 is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/automatic-revocation-of-teaching.html

The full text of A11513-A and S-8554 is posted at:

http://nypublicpersonnellawarchives.blogspot.com/2008/06/autmatic-revocation-of-administrators.html

Reprinted with Permission From New York Public Personnel Blog. Readers can obtain information about that blog by e-mailing publications@nycap.rr.com. Mention Adjunct Law Prof Blog and you will get a free month's subscription.

Mitchell H. Rubinstein

Teacher's Complaints Not Protected Under First Amendment

Woodlock v. Orange Ulster BOCES, ___Fed. App'x. ___(2d Cir. June 18, 2008), illustrates how narrow public employee First Amendment rights are after Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). A public school teacher who complained about the lack of proper special education classes was speaking pursuant to her official duties and, therefore, her speech was unprotected. As the court stated:

  "[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline." Id. at 421.
Woodlock's communications regarding M.C. and the lack of physical
education and art classes at the Cornwall satellite were made
pursuant to her "official duties" as a special education
counselor, in which capacity she was responsible for monitoring
her students' behavior, needs, and progress. Ruotolo v. City of
New York, 514 F.3d 184, 188 (2d Cir. 2008). In reporting her
concerns she was "perform[ing] the tasks [s]he was paid to
perform." Garcetti, 547 U.S. at 422. In such circumstances, an
employee is not engaging in protected speech and cannot proceed
on a First Amendment retaliation claim. See Ruotolo, 514 F.3d at
87-88.

Mitchell H. Rubinstein

IDEA Case Dismissed For Failure to Serve Summons

Pierre v. NYC Dep't. of Education, ___F.Supp. 2d ___, N.Y.L.J. June 16, 2008(S.D.N.Y. June 10, 2008), Download pierre_v.doc reminds us of the importance of following the FRCP. In this IDEA case, the student prevailed before the Hearing Officer and the N.Y.C. Department of Education was ordered to pay for the student's private school placement. On administrative appeal, the State Review Officer reversed because Pierre's due process complaint notice failed to meet the informational requirements of the IDEA and New York State law. The SRO further found that the IHO erred in allowing Pierre to raise issues at the due process hearing that were not raised in the notice. Pierre, who had been represented by counsel throughout the litigation, appealed the dismissal to federal court; however the summons was never served on the NYC Dep't. of Education. Why? Because a cashier told him that the summons had to be filed in court. The court that this was not a vaild excuse for an extension, reasoning:

Counsel's only explanation in opposition to this motion to dismiss is that he "personally appeared at the cashier's window at the United States District Court for the Southern District of New York and inquired whether a Petition or a Summons would be required to commence this type of action. The clerks conferred and advised [him] to file a Petition." To the extent that the alleged response he received even speaks to the issue of proper service, counsel's reliance on cashier clerks for legal advice is not justified.

Second, a discretionary extension also is not warranted here. Although the statute of limitations would bar the refiling of this action,⁵ plaintiff has not advanced even a colorable excuse for her neglect. That plaintiff's counsel was - and may still be - unaware that proper service must include a summons does not qualify as a "colorable excuse." In addition, plaintiff has not alleged that the defendants concealed the defects in service. Quite the opposite, the defendants informed plaintiff's counsel on November 30, 2007 that they believed service was defective. Yet plaintiff failed to exercise diligence in requesting an extension of the time for service and, indeed, asks for the first time in opposition to this motion to dismiss only that the Court offer her "the opportunity to cure any defects it may find."

Further, plaintiff - represented by counsel - has repeatedly failed to follow basic procedural rules. For example, to date she has not filed proof of service. See Fed. R. Civ. P. 4(l)(1). In contravention of this Court's Local Rules, she has not submitted a legal memorandum of law, and she cites to no legal authorities in her "Response to Defendants' Motion to Dismiss." See S.D.N.Y. Local Civ. R. 7.1. Instead, in a three page "Response" to the motion to dismiss, plaintiff's counsel merely recites the steps he took to commence this action.

The real loser in this case is, of course, the student.

Mitchell H. Rubinstein 

Supremes Considering Corporal Punishment Case

The School Law Blog ran an interesting June 18, 2008 story entitled The Supreme Court and Corporal Punishment. It is about  Serafin v. School of Excellence in Education, ___F.3d___ (11th Cir. 2007), pending cert. application. The court below upheld the corporal punishment which was administered reasoning that "corporal punishment of public school students is only a deprivation of substantive due process rights when it is arbitrary, capricious, or wholly unrelated to the legitimate state goal of maintaining an atmosphere conducive to learning."

The article describes the pending cert petition as follows:

In her appeal to the Supreme Court, Serafin presents two questions. First, she asks whether an adult student has a greater right than a child to be free from corporal punishment. And second, she asks if the time come for the justices to decide whether students of any age have "substantive due process" rights when a public school applies excessive corporal punishment.

The appeal does not question the overall legality of corporal punishment in schools, but it contends that students should have stronger protection of the type known as substantive due process, which protects against arbitrary and unreasonable governmental conduct affecting fundamental constitutional liberties.

In its 1977 ruling in Ingraham v. Wright, the Supreme Court held 5-4 that the Eighth Amendment's prohibition against cruel and unusual punishments did not apply to corporal punishment in schools, and that the 14th Amendment's due-process clause did not require notice and a hearing before imposing such punishment. The court said state common-law remedies satisfied the procedural due-process requirement, and it declined to consider substantive due-process concerns over corporal punishment.

Look for the Court to deny cert. I just don't see this case as involving complex legal issues and therefore, the Court is not likely to take it. However, you never know.

MItchell H. Rubinstein

Teacher Looses First Amendment Claim, But Court Accepts That There Would Be A Cause Of Action If She Was Terminated Because Of Her Association With Her Husband

Wingate v. Gage County School Dist., __F.3d___(8th Cir. June 16, 2008), provides a nice primer on basic First Amendment and Freedom of Association law. The teacher lost her First Amendment claim because her complaints about not being paid as a FT teacher, her unsuccessful FT applications, her request for an explanation and her meeting with a member of the school board to complain were not matters of "public concern."

Her Freedom of Association claim was that the she was not hired because of her husband. Her husband had been dismissed as a teacher and filed complaints against the principal. The court held that the Constitution would protect this relationship, but the plaintiff presented no evidence proving that her husband was a substanial and motivating factor in the defendants failure to hire.

The plaintiff also had an ADEA case which was dismissed.

Mitchell H. Rubinstein

The Theory of Evolution In The Classroom

Opponents of Evolution Are Adopting New Strategy is an interesting June 4, 2008 New York Times article by Laura Beil which appears in Section A, Page 14. In this article, she notes that efforts to teach creationism, creation science and intellligent design have largely failed, but a new battle is about to begin in Texas.

As I understand it, the Texas state Education Board is going to decide if "strengths and weaknesses" of evolution should be taught. As the article states:

Starting this summer, the state education board will determine the curriculum for the next decade and decide whether the “strengths and weaknesses” of evolution should be taught. The benign-sounding phrase, some argue, is a reasonable effort at balance. But critics say it is a new strategy taking shape across the nation to undermine the teaching of evolution, a way for students to hear religious objections under the heading of scientific discourse.

Already, legislators in a half-dozen states — Alabama, Florida, Louisiana, Michigan, Missouri and South Carolina — have tried to require that classrooms be open to “views about the scientific strengths and weaknesses of Darwinian theory,” according to a petition from the Discovery Institute, the Seattle-based strategic center of the intelligent design movement.

“Very often over the last 10 years, we’ve seen antievolution policies in sheep’s clothing,” said Glenn Branch of the National Center for Science Education, a group based in Oakland, Calif., that is against teaching creationism.

In my view, the constitutionality of this curriculm is not going to depend upon what you call it. It is going to depend upon what is taught. If the strengths and weaknesses focus on science I believe that it is likely to withstand constitutional muster. If however, religious alternatives are suggested then I have no doubt that this curriculm will be declared unconstitutional.

Mitchell H. Rubinstein

Breaking News!!! 2d Issues Major Student First Amendment Decision Involving Blogs

Doninger v. Niehoff, ___F.3d___ (2d Cir. May 29, 2008), is a major student First Amendment free speech case. The facts are simple and straight forward. A disagreement arose concerning the "battle of the bands" concert. A high school student posted what was described as a "vulgar and misleading" message from her home on a publicly accessible web blog where among other things, she referred to the central administration as "douchebages." In turn, the school disqualified her from running for Senior Class Secretary and from speaking at graduation. Why? The administration concluded that the student's conduct "failed to display the civility and good citizenship expected of class officers."

Plaintiffs sought a preliminary injunction to allow the student to speak at graduation which presumably will occur in a few weeks. The District Court rejected plaintiffs First Amendment challenge and the Second Circuit affirmed. Significantly, the court noted that the this type of case was a bit different because the speech in question did NOT occur on school grounds or at a school event, but occurred on a blog, reasoning:

The Supreme Court has yet to speak on the scope of a school's authority to regulate expression that, like Avery's, does not occur on school grounds or at a school sponsored event. We have determined however, that a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when this conduct "would foreseeably create a risk of substantial disruption within the school environment," at least when it was similarly foreseeable that off campus expression might reach campus. . . But as Judge Newman accurately observed some years ago, "territoriality is not necessarily a useful concept in determining the limit of [school administrators'] authority." True enough in 1979, this observation is even more apt today, when students both on and off campus routinely participate in school affairs, as well as other expressive activity unrelated to the school community, via blog postings, instant messaging, and other forms of electronic communication.

The court held that it was reasonably foreseeable that the posting would reach campus and that the posting created a substantial risk of disruption because of the language utilized, that the student encouraged others to conduct the administration, and because her message was misleading which caused rumors to be circulated. Students were "all riled up" and threatened a "sit in".

Come on! While I believe the court applied the correct body of First Amendment jurisprudence, its reasoning is extreme and out of touch with reality. As the court also noted, this was a good student. She had a disagreement with the school and used the word "douchebages." She attempted to obtain support from her fellow classmates. The speech was off campus and the speaker was a senior high school student. This is exactly what the First Amendment protects. If this type of speech is not protected, then what type of speech will be protected? Is a student limited to merely saying "I disagree" or "please Mr. principal, change your mind."

Is the problem with the speech here that the word "douchebages" was used? If so, then the court is completely out of touch how students and others (lawyers too) talk to one another. Was there a real threat of disruption? I think not. The court appearantly "feared" disruption because the student sought support from others. However, that is exactly what the First Amendment protects. Does speech become disruptive because "rumors" circulate and others-repeat others-threaten a sit in?? It might be a bit differerent if the plaintiff was advocating a sit in or some type of violence. But that was not this case.

There is a second very unique part of this decision. The court noted that a relatively minor penalty was imposed (plaintiff could run for class office or speak at graduation) and hinted that a more severe penalty may have raised other constitutional concerns. What concerns would they be? Equal Protection? Due Process? The court here is deciding whether speech is protected under the First Amendment. I fail to see, how the level of penalty is a relevant consideration for First Amendment purposes.

As this case demonstrates, students have very limited First Amendment protections. Perhaps, this case will start a trend where students may look to the Equal Protection Clause and the Due Process Clause and challenge the level of discipline imposes. This issue is certainly ripe for law review commentary.

Mitchell H. Rubinstein

     

Teacher Terminated For Inappropriate Sexual Remarks

Lackow v. Department of Education, ___A.D. 3d___(2d Dept. May 27, 2008) is an interesting case. A 3020-a hearing officer recommended a tenured teachers termination, but a state supreme court decision vacated that decision. On appeal, the appellate division reversed the state supreme court decision (which is the lower court in New York), reasoning:

In view of petitioner's proven misconduct, and that he had three times been previously warned in writing about the inappropriateness of his behavior, the penalty of dismissal does not shock the conscience. Of particular concern is the repetitive nature of petitioner's misconduct. Petitioner continued in a pattern of conduct that was clearly irresponsible and inappropriate within the classroom setting. Discussing his own ejaculations, admonishing a student about putting her legs in the air, telling another student that he should take a good look at a diagram of a woman's vagina because he will not see one otherwise, talking about the color of a student's underwear, and responding to a student's inappropriate comment by remarking about seeing her name on bathroom walls, constitute more than isolated, aberrant behavior. Rather, such conduct [*5]is indicative of a continued pattern of offensive behavior that reflect an inability to understand the necessary separation between a teacher and his students.

The other interesting aspect of this case concerns the standard of review. Because this involved complusory arbitration, the court stated that the appropriate standard of judicial review was as follows:

Education Law § 3020-a(5) provides that judicial review of a hearing officer's findings must be conducted pursuant to CPLR 7511. Under such review an award may only be vacated on a showing of "misconduct, bias, excess of power or procedural defects" (Austin v Board of Educ. of City School Dist. of City of N.Y., 280 AD2d 365 [2001]). Nevertheless, where the parties have submitted to compulsory arbitration, judicial scrutiny is stricter than that for a determination rendered where the parties have submitted to voluntary arbitration (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Cigna Prop. & Cas. v Liberty Mut. Ins. Co., 12 AD3d 198, 199 [2004]). The determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78 (Motor Veh. Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186 [2002]). The party challenging an arbitration determination has the burden of showing its invalidity (Caso v Coffey, 41 NY2d 153, 159 [1990]).

A May 28, 2008 New York Law Journal article about this case is available here.

Mitchell H. Rubinstein

School District Can Refuse To Hire Ex-Felons

  Crook v. El Paso Independent School Dist., __F.3d__ (5th Cir. May 8, 2008) is an important case. The upheld the school districts decision to refuse to higher a social studies teacher because of his 13 felony convictions. The plaintiff was also a lawyer who had his license to practice suspended. Significantly, plaintiff also worked as a substitute in the District for several years without incident.

The court easily rejected plaintiffs claim that convicted felons were a protected class under Title VII. The court also rejected plaintiffs 1983 claim alleging due process violations by having a policy barring employment of convicted felons. As the court reasoned:

  The district court also did not err in its application of rational basis
scrutiny. The court concluded that because teachers are in close proximity to
school children on a daily basis, and are charged with the responsibility of
representing to their students an example of good moral character, the school
board’s policy reflects the legitimate interest of protecting children from both
physical harm and corrupt influences. As to whether this policy promotes that
purpose, the court concluded that it was reasonable for the school district to
believe that barring felons from permanent teaching positions would achieve this . . .

It should be noted that the result may be different in some states. In New York, for example, the Corrections Law has anti-discrimination provisions which provide limited-very limited protections to ex-felons.

Mitchell H. Rubinstein