Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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:

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

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

Wednesday, September 26, 2012

What Does Tenure Mean In The Context Of Private Employment??


With respect to public employment, tenure is equated with permanent employment. It creates a property right and as a result, tenured employees cannot be disciplined without due process. But, what about private employment? Branham v. Thomas M. Cooley Law School, ____F.3d____(6th Cir. Aug. 6, 2012), address this exact issue in the context of a termination of a law professor at a private law school.

The court explains that tenure is NOT lifetime employment. Rather, it is a contractual right and its meaning is derived from the terms of the contract. As the court states:

As the district court noted, and as Branham concedes, “‘tenure’ [does not] mean[]
anything other than what [Branham’s] employment contract provides.” Further, under
Michigan law, “contracts for permanent employment are for an indefinite period of time
and are presumptively construed to provide employment at will.” Rowe v. Montgomery
Ward & Co., 473 N.W.2d 268, 271 (Mich. 1991). The term “tenure” is not defined in
Branham’s employment contract, but Branham contends that “tenure” means “lifetime
appointment” or “continuous employment.”

Mitchell H. Rubinstein

September 26, 2012 in Education Law, Employment Law | Permalink | Comments (0)

Monday, July 16, 2012

Massachusetts court rules state law requiring daily recitation of Pledge of Allegiance does not violate students’ rights

Doe v. Acton-Boxborough Reg. Sch. Dist., No. MIC 2010-04261 (Mass. Sup. Ct. June 5, 2012), is an interesting cse. A Massachusetts trial court level has ruled that the state law requiring the daily recitation of the Pledge of Allegiance in public schools does not violate the state constitution’s equal protection clause and statutory guarantee of equal protection, or the school district’s anti-discrimination policy because of the inclusion of the phrase “under God” in the Pledge. The trial court concluded that based on the legislative history of the Pledge law, the inclusion of the phrase “under God” had not converted the recitation from a political exercise to a religious exercise.

Mitchell H. Rubinstein

July 16, 2012 in Current Affairs, Education Law | Permalink | Comments (0)

Wednesday, July 4, 2012

Sandusky To Likely Keep Pension In Jail

All the major news outlets are reporting that Sandusky will keep his $59,000 per year state pension. See, ABC News Report, here. A Bill has been introduced in the Pennslvania legislature to stop this, however.

If Sandusky worked for a private university, it is likely that he would be entitled to keep his pension under ERISA's antialienation rule. I believe that OJ Simpson is sitting in jail collecting his pension for that reason.

ERISA does not apply in the public sector.

Mitchell H. Rubinstein

July 4, 2012 in Education Law, Employee Benefits Law | Permalink | Comments (0)

Monday, June 25, 2012

1983 Claim Dismissed Based Upon Student Being Bullied

Estate of Asher Brown v. Cypress Fairbanks Indep. Sch. Dist., ____F.Supp. 2d____(S.D. Tex. May 23, 2012), is an interesting case.  A federal court in Texas granted a school district’s motion dismissing a parent’s Section 1983 due process claim which alleged that through its failure to enforce anti-bullying policies at the student’s middle school, the school district failed to protect the student from harm, who ultimately committed suicide.

Law review commentary on this important issue would be most welcome.

Mitchell H. Rubinstein


June 25, 2012 in Education Law, Law Review Ideas | Permalink | Comments (1)

Tuesday, June 12, 2012

Reverse Education Law Discrimination

Reportedly, a male student is suing under Title IX asserting that he has the right to remain on an all girls hockey team. The case is being challenged administratively and the parents are threatening legal action. A copy of a newspaper article in the Boston Herald written by the AP provides additional information, here.

Mitchell H. Rubinstein

June 12, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, June 6, 2012

California’s proposed legislation criminalizing student-teacher dating dies in Assembly committee

The Associated Press reported in the San Francisco Chronicle that the California Assembly’s Committee on Public Safety rejected AB1861, a bill that would have made it a felony for teachers to date their students. Assemblywoman Kristin Olsen, who sponsored the bill, criticized the committee’s vote, saying its members had sided with “predators and union bosses” instead of protecting students.

Source:  San Francisco Chronicle, 4/17/12, By Hannah Dreier (AP)

June 6, 2012 in Education Law | Permalink | Comments (1)

Wednesday, May 30, 2012

7th Holds Laid Off Teachers Due Not Have Due Process Recall Rights


Chicago Teachers Union v. Board of Educ. of the City of Chicago, ____F.3d____ (7th Cir. Apr. 19, 2012), is an interesting case. The Seventh Circuit reversed a district court’s ruling granting the Chicago Teachers Union (CTU) a preliminary and permanent injunction ordering the Chicago Board of Education to rescind its economic layoff of tenured teachers and to promulgate layoff and recall rules for tenured teachers. The panel’s decision to reverse and remand with instructions for the district court to vacate the injunction was based on the responses to questions the panel certified to the Illinois Supreme Court, which determined that Illinois law did not give laid-off teachers substantive rights with respect to rehiring and rights to certain procedures during the rehiring process.



May 30, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Monday, May 21, 2012

7th Holds School District Can Ban Former Student From Its Property


Hannemann v. Southern Door Cnty. Sch. Dist., ___F.3d___(7th Cir. Mar. 15, 2012), is an interesting case involving a student expelled for bring weapons to school. The Seventh Circuit held that a school district did not violate a former student’s procedural due process by indefinitely banning him from school property. The panel concluded that the former student, as member of the public, did not have a protected liberty interest in accessing school grounds and, therefore, the school district had no duty to provide him with due process related to imposing the ban.

Mitchell H. Rubinstein


May 21, 2012 in Education Law | Permalink | Comments (0)

Tuesday, May 15, 2012

4th Circuit Holds ADHD Is Not A Disability


Halpern v. Wake Forest University Health Sciences, ____F.3d____(4th Cir. Feb. 28, 2012), is an extremely important case. The court upholds the discharge of a medical student from medical school and rejected his ADHD defense under the Rehab and ADA. Why, providing deference to the medical school, the court held that he was not qualified under the statute because "professionalism" was an essential part of the program. 

The court cited to several employment cases which held that an employee misconduct is not protected even if the disability caused the misconduct.

Law review commentary on this important case would be most welcome. Here that students!

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

May 15, 2012 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (2)

Saturday, April 28, 2012

Illinois Supreme Court rules that state law does not give laid-off tenured teachers substantive or procedural rights related to rehiring

Chicago Teachers Union, Local No. 1 v. Board of Educ. of the City of Chicago, 2012 IL 112566 (Ill. Feb. 17, 2012), is one of those cases which does not make any sense-at least from a practical point of view. The Illinois Supreme Court held (5-2), that under sections 34-18 (31) and 34-84 of the Illinois School Code [which address tenured teacher lay-offs in the Chicago school district] laid-off tenured teachers do not have the right to be rehired after an economic layoff, or the right to certain procedures during the rehiring process. 

Mitchell H. Rubinstein


April 28, 2012 in Education Law | Permalink | Comments (0)

Wednesday, April 11, 2012

School District Can Discipline Student For Off-Campus Speech On Facebook

Bell v. Itawamba Cnty. Sch. Bd., ___F.Supp. 2d___ (N.D. Miss. Mar. 15, 2012), is an interesting case which I am surprised has not gotten more press-at least yet. A federal district court held that school officials did not violate a student’s free speech when they disciplined him for posting a “rap” song he composed and performed off-campus, and posted on his Facebook page. The court concluded that Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503 (1969), specifically held that school officials can regulate off-campus speech/expression that causes material or substantial disruption at school.

Mitchell H. Rubinstein


April 11, 2012 in Education Law | Permalink | Comments (0)

Monday, April 9, 2012

Arkansas Supreme Court strikes down law criminalizing consensual relationships between teachers and adult K-12 students

Paschal v. State of Arkansas, No. CR 11-673 (Ark. Mar. 29, 2012), is an interesting case. Now, before anyone gets too emotional about this decision, the court did not approve of relationships between students and teachers. Rather,  in a 4-3 split, it held that that a state law making it a crime for a K-12 teacher to engage in consensual sexual contact with a student who is an adult violates the state constitution. The court’s majority determined that the state constitution recognizes a “fundamental right to privacy implicit in our law” that “protects all private, consensual, noncommerical acts of sexual intimacy between adults.” While the state Supreme court acknowledged that it was possible that the state legislature “intended to criminalize a teacher’s use of his or her position of trust or authority over an adult student to procure sex,” the majority pointed out the law contained no language indicating such an intent.

Mitchell H. Rubinstein

April 9, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Wednesday, April 4, 2012

Indiana court rules state’s private school voucher law does not violate state constitution

Meredith v. Daniels, No. 49D07-1107 -PL-025402 (Ind. Super. Ct. Jan. 13, 2012), is an interesting state court decision.  A Marion Superior Court has granted the State of Indiana summary judgment in a suit challenging the validity of the state’s private school voucher law, known as the Choice Scholarship Program under the state constitution. The court concluded that the program at issue, which allows “disadvantaged Indiana primary and secondary school students to receive scholarships to attend private schools or public schools in other districts that charge transfer tuition,” did not run afoul of the state constitution.

Mitchell H. Rubinstein


April 4, 2012 in Education Law | Permalink | Comments (0)

Sunday, March 25, 2012

Rhode Island district court holds that the high school’s display of prayer banner constitutes Establishment Clause violation

Ahlquist v. City of Cranston, ___F.Supp. 2d____ (D. R.I. Jan. 11, 2012), is an interesting case. A federal district court has ordered the immediate removal of a banner displayed on the wall of a high school auditorium on the ground that the display of the banner, which contains a Christian prayer, violates the First Amendment’s Establishment Clause. Relying on the Establishment Clause principle of neutrality in matters of religion, the court analyzed the banner under three different tests (Lemon, endorsement, and coercion) to determine whether its display passed constitutional muster.

Mitchell H. Rubinstein


March 25, 2012 in Constitutional Law, Education Law | Permalink | Comments (0)

Sunday, March 18, 2012

Federal District Court Grants District Summary Judgement On Peer on Peer Harassment Case

P.K. v. Caesar Rodney High Sch., ____F. Supp. 2d____ (D. Del. Jan. 27, 2011), is an interesting decision.  A lower court has granted a school district summary judgment, rejecting a Title IX claim brought by a student and her mother based on student-on-student sexual harassment. The court concluded that the plaintiffs had failed to show that the defendants were “deliberately indifferent” to the student-on-student sexual harassment the student experienced or that the defendants’ responses to known instances of harassment were “clearly unreasonable.”

Mitchell H. Rubinstein

March 18, 2012 in Education Law | Permalink | Comments (0)

Saturday, March 17, 2012

Student Fails To Establish Peer On Peer Harassment Claim Under ADA or Rehab Act

Weidow v. Scranton Sch. Dist., ____F.3d____ (3d Cir. Feb. 7, 2012), is an interesting case. The Third Circuit, in an unreported decision, ruled that a former high school student subjected to student-on-student harassment failed to state valid claims of discrimination against a Pennsylvania school district under the Rehabilitation Act and the Americans with Disabilities Act (ADA). The panel concluded that the former student failed to present evidence sufficient to show that her bipolar disorder is a impairment that substantially limits a majority activity. This case was filed before the 2009 amendments to the ADA.

Mitchell H. Rubinstein


March 17, 2012 in Education Law | Permalink | Comments (0)