Wednesday, August 31, 2016
A federal district court in Pennsylvania has ordered the School District of Lancaster, PA, to allow older refugee students to attend their local high school. The plaintiffs are six students, who are between 17-21 and who are refugees from Somalia, Sudan, Democratic Republic of Congo, and Burma. They sued the Lancaster district this summer, alleging that the district illegally refused to enroll them at the public McCaskey High School or diverted them to a privately-run alternative school, Phoenix Academy. According to the lawsuit, district employees told the students that they were too old to enroll (not true) or did not have sufficient English proficiency (despite McCaskey having a an international program dedicated to serving transitioning English language learners.) Some of the students' younger siblings were admitted to the district's schools. At Phoenix Academy, the students alleged, they were subject to frequent pat-down searches, restrictions on their dress and activities, and bullying from other students. Moreover, the students alleged that the pace of Phoenix's instruction, which was designed to allow disruptive or older students to earn accelerated credits so that they could graduate faster, was inappropriate for students who had recently arrived in the United States. Phoenix offers no extra curricular programs. While the federal court was taking testimony in the case, an attorney for the Lancaster school district commented that "[i]f [the plaintiffs] don't like the security measures [at Phoenix Academy] then they definitely won't like them at McCaskey, where they have two guards with Tasers and yes, sometimes they have to use them." U.S. District Court Judge Edward G. Smith granted a preliminary injunction ordering the district to allow the students to attend McCaskey, stating that the plaintiffs presented "straightforward legal issues that were ultimately easy to resolve. ... [T]he law is clear: eligible students must be timely enrolled, and efforts to overcome language barriers must be sound and effective." The district is appealing the order.
Wednesday, August 24, 2016
Recent Decisions On IDEA Claim Exhaustion; AR Desegregation Consent Decree Upheld; and CA Education Quality Suit Again Rejected
Third Circuit Holds that Non-IDEA Claims Are Subject to IDEA Exhaustion Requirement
Plaintiffs must exhaust claims that implicate services within the purview of the Individuals with Disabilities Education Act, even if those claims are raised under a non-IDEA statute. Because a student’s complaint that a school board discriminated against him under Section 504 and the Americans with Disabilities Act claims raised educational injuries that implicated IDEA services, the claims raised were held subject to the IDEA exhaustion requirement. The case is S.D. v. Haddon Heights Board of Educ., 15-1804 (3rd Cir. Aug. 18, 2016).
California Appellate Court Again Rejects Education Quality Suit
The California Court of Appeal recently refused to reinstate the claims of the Campaign for Quality Education, a case alleging that California's current educational financing system violated the state constitution. In the appellate opinion in April, Campaign for Quality Education v. California, the plaintiffs argued that article IX of the California constitution required the state to adequately fund education and that the state should be compelled to do so under court supervision. The appellate court found that the California Constitution did not require the state to provide a certain quality of education. In the this week's opinion, appellate affirmed the trial court's dismissal of the complaint for failure to state a cognizable claim and again cited its decision to "leave the difficult and policy-laden questions associated with educational adequacy and funding to the legislative branch." The latest opinion is Campaign for Quality Education v. California, No. A134423S (Cal. Ct. App. Aug. 22, 2016).
Eighth Circuit Holds That Arkansas School Districts’ Desegregation Consent Decree Duties Did Not End with Repealed Statute
In W.T. Davis v. Cutter Morning Star School, 15-1919 (8th Cir. Aug. 18, 2016), several individual school districts in Arkansas sued to end a desegregation consent decree, arguing that subsequent state legislation invalidated the decree. The case arose under the following facts: part of a 1991 consent decree to desegregate the Garland County, Arkansas school system adopted the Arkansas’ School Choice Act, which included a race-based limitation on students applying to attend a school outside of their resident school district. In independent litigation in 2012, a federal district court held that that provision of the Act violated the Equal Protection Clause. The Arkansas legislature then passed the 2013 School Choice Act, removing the race-based limitation on public school transfers and including a provision preventing a receiving school district from discriminating on the basis of race.
In the recent case, the Eighth Circuit held that because the 2013 Act had a carve-out for pre-existing judicial consent decrees that remedied the effects of past discrimination, the individual school districts could not show that the new law had an actual effect on the target of the decree and thus nothing warranted termination of the entire agreement.
Monday, August 8, 2016
First Circuit: Good Academic Performance Is Relevant But Not Determinative For Special Education Eligibility
The First Circuit published an opinion last week dealing with the ambiguity of the "need" provision in the Individuals with Disabilities Education Act. The parents of a seventh-grader, called Jane Doe in the opinion, sued the local school district after it decided that Jane did not require special education in reading fluency because she was doing well in school. Jane had received special education services for years to improve her reading skills. Jane's parents argued that the "need inquiry" under the IDEA should determine whether a child needs special education to remediate the underlying disability. The school district argued that the need inquiry should determine whether a child needs special education to benefit from the school curriculum. If the child is doing well academically, the district argued, the child no long qualified for special education services. The case centers around the text of Section 1401(3)(A)(ii) of the IDEA that provides that a child determined to have one of the qualifying disorders under the first prong must also, “by reason thereof,” “need[ ] special education and related services” to be eligible for special education. 20 U.S.C. § 1401(3)(A)(ii). The First Circuit found that "Jane's overall academic performance could potentially be relevant in determining whether she has a reading fluency deficit, the district court erred in relying on such evidence without regard to how it reflects her reading fluency skills." The circuit court vacated and remanded the judgment in favor of the district, holding that the district court weighed Jane's overall academic achievement too heavily when the child's deficiency in reading fluency was sufficient by itself to support eligibility and that the district court afforded excessive deference to the hearing officer's determinations. In a concurrence, Circuit Judge Lipez offered guidance cautioning courts to not solely look at "an absolute standard of educational performance, the satisfaction of which would automatically disqualify a child from eligibility under the need prong." The case is Doe, v. Cape Elizabeth Sch. Dist., No. 15-1155, 2016 WL 4151377 (1st Cir. Aug. 5, 2016).
Wednesday, July 13, 2016
The State of Mississippi is being sued by parents who contend that a recent law unconstitutionally district public tax dollars from public school districts revenues to charter schools. Under the Mississippi Charter School Act of 2013 (CSA), charter schools in a public school district are entitled to a share of that district's state ad valorem tax revenue. The lawsuit's plaintiffs contend that a provision of the Mississippi Constitution forbids funding any school that is not a "free" school under the control of either the State Department of Education or district officials. (Mississippi's charters are instead supervised by an independent governing board.) The plaintiffs allege that the Jackson school district has already given $1.8 million of its funding to the two currently operating charter schools. A third charter is set to open in the coming school year,and the Jackson district school could be required to give up to $4 million to charter schools, resulting in shortfalls in personnel and education quality. The plaintiffs are represented by the Southern Poverty Law Center, and the complaint in Arujo v. Bryant may be viewed on scribd here.
Monday, July 11, 2016
Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016) - The Ninth Circuit Court of Appeals recently held in that a school district's offers to place an autistic student in a small classroom rather than a mainstream one did not deny the student a free appropriate public education (FAPE). Baquerizo v. Garden Grove Unified Sch. Dist., No. 14-56464, 2016 WL 3435270 (9th Cir. June 22, 2016). The student and his guardian sued the school district under the Individuals with Disabilities Education Act (IDEA) after the district determined that he would benefit from a small class for students with mild to moderate disabilities rather than a mainstream classroom and refused to reimburse the cost of the student's private education during the following two school years. The plaintiffs had previously sued the district for failing to provide a FAPE and won; the Ninth Circuit affirmed in 2011 holding that the student was entitled to full reimbursement of his private tuition costs because the public school did not meet his educational needs. In this most recent decision, the Ninth Circuit deferred to the school district's decision that the smaller classroom would be better for the student's academic needs even though he may have benefited socially from a typical classroom setting.
James v. D.C., No. 14-CV-02147 (APM), 2016 WL 3461185 (D.D.C. June 21, 2016) -- The federal district court found that the District of Columbia Public School (DCPS) system did not comply with an intellectually disabled student's individualized education program (IEP) requiring her to receive specialized instruction, even though the school did not have a special education teacher to provide it. The district court found the student's guardian, her grandmother, was apparently unaware that the school was not carrying out student's IEP, and thus allowed her to remain enrolled in the school throughout the school year even though the school was not able to implement the IEP. The district court remanded the issue of whether the student had a speech and language disability to the Hearing Officer to determine whether DCPS failed to provide a timely speech-language evaluation as required by the IDEA.
Friday, July 8, 2016
Texas, Joined By Eleven States, Seeks Nationwide Injunction To Block DOE's Transgender Anti-discrimination Policy
Texas Attorney General Ken Paxton is seeking a nationwide preliminary injunction to stop the enforcement of the Department of Education's Dear Colleague letter to schools directing them not to discriminate against transgender students, particularly in students' choice of bathrooms. Paxton, along with Alabama, Arizona, Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, applied for the injunction on Tuesday asking the Northern District of Texas to enjoin the DOE's transgender-inclusive policy nationwide because the policy applies all of the nation's public schools. To persuade the district court that it has to the power to enjoin the policy nationwide, Paxton is relying on the Fifth Circuit's ruling last year granting injunctive relief that halted enforcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which provided for legal presence for illegal immigrants who were parents of citizens or lawful permanent residents. See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016). The states' preliminary injunction motion is here and the original report at the Texas Tribune is here.
Tuesday, June 28, 2016
Charlotte-Mecklenburg Schools (CMS) announced a new regulation last week advising principals this fall to honor students' choices about their gender identity in restrooms, locker rooms, yearbooks, and graduation ceremonies, school officials told the Charlotte Observer. CMS said that the new guidance follows the Fourth Circuit's holding in G.G. v. Gloucester County Sch. Bd. (see our coverage here) and is not intended to defy North Carolina's law HB2, which, among other things, requires students to use public school restrooms and locker rooms based on the gender on their birth certificates. In G.G., the Fourth Circuit held that the U.S. Dept. of Education's interpretation that Title IX applies to transgender students was entitled to deference in light of the ambiguity of the meaning of "sex" in the statute. The new CMS regulation will require schools to identify and address students according to their preferred identity and will eliminate "gender-based activities that have no educational purpose, such as having a girls’ and boys’ line to go to recess."The Charlotte-Observer's story is here.
And speaking of G.G. v. Gloucester County Sch. Bd., on remand from the Fourth Circuit, last week the district court granted the preliminary injunction to allow the plaintiff to use the boys' restroom at Gloucester High School. The district court did not extend that access to any other school facilities, such as locker rooms, because the plaintiff's suit only sought bathroom access. The June 23 order of the Eastern District of Virginia is here.
Friday, June 24, 2016
Harpalani On Fisher II: The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani (Savannah) shared his take on Fisher II below, which he writes "was the clearest victory for affirmative action" since Grutter and now gives universities clearer guidance on how race may be evaluated in admissions policies.
The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas
Vinay Harpalani, J.D., Ph.D., Associate Professor of Law, Savannah Law School
Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.
Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.
In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.
In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.
Thursday, June 23, 2016
Fisher II Upholds UT Austin's Policy That Includes Race As Relevant (Though Indirect) Factor In Some Admissions
Readers are doubtless poring over Fisher II this morning upholding the University of Texas at Austin's admissions policy that includes race as a relevant feature in a consideration of "special circumstances" for a quarter of the university's admissions. If you need a link, it is here: Fisher v. Univ. of Texas at Austin, 579 U.S. __ (Jun. 23, 2016).
Wednesday, June 22, 2016
The New Orleans Advocate reports that a high school student, through his mother, has sued the St. Tammy Parish School Board (Louisiana) alleging that a deputy sheriff and school officials illegally searched the student's cellphone. According to the news story, on Jan. 8, 2016, a deputy sheriff and school officials searched 16-year-old Fontainebleau High School sophomore Matthew DeCossas for evidence of marijuana possession. Finding no contraband on DeCossas' person, bag, or locker, officials asked DeCossas to unlock his cellphone, which was searched. They found a text conversation between DeCossas and another student about Vyvanse, a stimulant used to treat ADHD. After an investigation, DeCossas was expelled for four semesters. At the end of April, DeCossas sued the officials and the board under sec. 1983, alleging that they violated his Fourth and Fifth Amendment rights by illegally searching him and pressuring him to make a statement before his parents were contacted. What makes DeCossas' case potentially different from student cellphone search cases such as this California case involving an on-campus search for firearms, is that if facts in the Advocate's report are correct, law enforcement and school officials had little basis for searching DeCossas' phone after failing to find anything incriminating during the initial search and that the object of the search, marijuana, is less alarming than the more obvious threat posed by guns at school. But we have not yet read the papers from the parish school board, so right now we only have the suit's allegations, available on Scribd. here.
Monday, June 13, 2016
Manhattan U.S. Attorney Sues NYC Department of Education For Discrimination At Pan American Int'l High School
In an unusual action, the Manhattan U.S. Attorney's Office has sued the New York City Department of Education under Title VII for allegedly permitting a high school superintendent and principal to discriminate against the three black teachers employed at Pan American International High School and retaliate against an assistant principal who spoke out against the discrimination. The Manhattan U.S. Attorney's Office has rarely, if ever, brought a race discrimination claim against a school district in recent years. In the office's press release in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456, U.S. Attorney Preet Bharara said: “It is nearly unthinkable that, in this day and age, one of the largest and most diverse school districts in the United States would allow racial discrimination and retaliation to flourish." Cribbed from the U.S. Attorney's press release: The Government alleges that during the 2012-2013 school year, the New York City DOE permitted Pan American Principal Minerva Zanca and Superintendent Juan Mendez to make derogatory racial comments about the school's only black teachers, such as saying that one teacher “looked like a gorilla in a sweater,” commented about one's “big lips quivering” during a meeting, and and that Zanca stated that she had difficulty suppressing her amusement at another teacher who reminded her of a Tropicana commercial where a black man “with those same lips” danced down a supermarket aisle. Several of these comments were made to or in the presence of the school's assistant principal, Anthony Riccardo. Zanca later accused Riccardo of “sabotaging her plan” when he refused to give one of the black teachers an unsatisfactory rating for a lesson that he had not yet seen. In response, Zanca called school security to have Riccardo removed from the premises. The Riccardo incident is part of the DOJ's retaliation grounds. The complaint in Flanagan v. N.Y.C. Dep’t of Educ. et al., No. 13 Civ. 8456 (filed 6/9/2016) may be viewed here.
Wednesday, May 18, 2016
Florida School Board Sued For Allegedly Funneling Recent Immigrant Students To Non-Credit, Fee-Based Program
The Southern Poverty Law Center filed suit yesterday in the Middle District of Florida challenging a policy of the Collier County, Florida School Board for allegedly steering English language learner (ELL) students off-site for adult English-only instruction. The named plaintiffs are two Guatemalan teens who were denied admission to high school in the Collier County district and instead referred an off-site, non-credit, adult, English language-only class at a local technical college. At issue is Collier County's age policy, which denies high school admission to students who are 17 years old or older who cannot meet graduation credit requirements by the end of the school year of their 19th birthday. The lawsuit alleges that despite federal and state civil rights laws and the federal and state mandates to teach and bring ELL students to grade level, the Collier County Board's policy acts to deny admission to recent immigrant students who lack English proficiency. The suit's allegations highlight potential barriers faced by immigrant children who seek to enroll in U.S. schools. A recent report by the Georgetown Law Human Rights Institute, Ensuring Every Undocumented Student Succeeds: A Report on Access to Public Education for Undocumented Children, cited similar examples of schools' discouraging "enrollment of undocumented students due to ancillary considerations, such as testing, grade placement, and prospects of graduation." A copy of the SPLC lawsuit can be found here.
Thursday, May 12, 2016
Second Circuit Restores Class Certification Claim For Former Students Of Failed Vocational School Chain
The Second Circuit recently reversed the dismissal of a class action lawsuit by former students of a chain of cosmetology schools, even though the Department of Education (DOE) had discharged the student loans of the named plaintiffs, because the issue was likely to reoccur with other plaintiffs in the class. The Second Circuit held in Salazar v. King, Sec. of Education, No. 15-832 (2nd Cir. May 12, 2016), that the suit was not moot under an exception for “inherently transitory” class action claims that related back to the complaint's filing. Plaintiffs had alleged in the suit that the beauty school chain, Wilfred American Educational Corporation, fraudulently certified students' eligibility for federal student loans by telling the government that students without a GED or high school diploma had an “ability to benefit” from the program, which the Education Department required to certify eligibility for federal student loans. Wilfred did this by certifying that its students had passed an approved ATB test when they had not. Wilfred, which got nearly 90% of its revenue from student loan payments, eventually closed, leaving many of its attendees without the ability to complete their training. The U.S. government nevertheless required Wilfred students to repay their federal student loans for some years afterwards, some through tax refund seizures and wage garnishments. The Wilfred plaintiffs were never told that their student loans could be discharged by the Education Department if the school falsely certified their eligibility. The Second Circuit reversed the district court's finding that the DOE's actions were unreviewable under the agency discretion doctrine. The opinion is available here.
Tuesday, May 10, 2016
Ohio Supreme Court Holds That State Education Department Can Retroactively Claim Funds From Districts' Budgets
The Ohio Supreme Court recently reversed a trial court ruling and held that the State could retroactively lower school districts' funding without running afoul of the state constitution's retroactivity clause. The case arose when the State Dept. of Education determined that school boards in the Cleveland, Cincinnati, Dayton, and Toledo districts had been overpaid for fiscal year 2005 when it mistakenly counted students as part of district budgets even though the students were attending community schools outside of their home districts. The department recouped the overpayment by deducting the amounts from the boards’ school-foundation funding during fiscal years 2005-2007. The Cincinnati School District sued the department over its fiscal-year-2005 adjustment of Cincinnati’s school-foundation funding but settled before the Ohio Supreme Court could decide the case. In the meantime, the Ohio General Assembly passed legislation that allowed the department to adjust school funding retroactively and immunized the department from liability for any legal claim for reimbursement brought by a school district. The school districts argued and won a claim at trial that the elimination of their funds and of potential state liability violated the constitution's retroactivity clause because it impaired the boards’ substantive right to accrued education funding. The Ohio Supreme Court agreed with the department's position that the retroactivity clause was historically interpreted to protect private parties, not arms of the state, relying on U.S. Supreme Court holdings that political subdivisions do not have the same rights as private corporations or individuals, and authority from other state courts concluding that legislatures may retroactively reclaim money from school district budgets. The case is Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn. (Ohio May 4, 2016).
Friday, April 22, 2016
A California appellate court held last month that school officials' search of a student's cellphone while investigating a firearm violation in the school was justified under the Fourth Amendment. In People v. Rafael C., a student was searched at school after officials found a gun and a magazine in a trash can. The student acted suspiciously near the principal's office, then failed to respond to a request to stop and speak with the assistant prinicipals. School officials detained the student, searched his pockets, and discovered a cell phone. An administrator searched through the phone and found text messages and photographs which he accessed on a computer and printed out. The photographs showed students holding the confiscated firearm found earlier at the school. Rafael C. was arrested and charged with weapons possession. In juvenile court proceedings, a judge denied Rafael's motion to suppress the photographs, finding that the search was a permissible administrative school search. The California Court of Appeals affirmed the juvenile court's denial of the motion to suppress. First, the court noted, the search was justified at its inception because Rafael allegedly was evasive and then turned combative while school officials were questioning him. This behavior gave school officials reasonable grounds for detaining the student and believing that he had violated school rules. The California appellate court relied instead on TLO v. New Jersey, which permits an exception to the warrant requirement when school officials had reasonable grounds to believe school rules have been broken. That exception is even more applicable when the search involves a firearm, a safety issue for the entire school. The appellate court held that the search also did not implicate Riley v. California (2014), in which the U.S. Supreme Court required a search warrant before officers could examine the contents of a cellphone during an arrest. The school search here was conducted before Riley was decided, and therefore school officials could not be "bound to a standard that did not yet exist." The appellate court thus affirmed Rafael C.'s delinquency adjudication, but modified the sentence. The case's slip opinion in People v. Rafael C., No. A143376 (Cal. App. Mar. 25, 2016) is here.
Wednesday, April 20, 2016
The California Court of Appeals today affirmed the dismissal of a complaint that the state's education finance system violated the state constitution's fundamental right to an education. In Campaign for Quality Education v. California, the plaintiffs argued that article IX of the California constitution required the state to adequately fund education and that the state should be compelled to do so under court supervision. The complaint, brought by a coalition of non-profit organizations and guardians ad litem, alleged that California’s education funding scheme "fail[ed] to ensure that all public school children have the opportunity to become educationally proficient according to current legislatively-mandated academic standards," and that the legislature ignored a constitutional duty to provide an education of "some quality" to public schoolchildren. The appellate court concluded that article IX's text did not impose a judicially enforceable duty to provide an education of “some quality” nor did it require the state to maintain a certain standard of educational quality expressly or implicitly. The court, citing similar litigation in Illinois, also deferred to the the legislature and the political process to resolve educational finance issues. The court also held that the constitution did not provide for a minimal level of education expenditures. A copy of the case is here.
Tuesday, April 19, 2016
The North Carolina Supreme Court has overturned a 2013 law that repealed teacher tenure, holding that the repeal violated the Contract Clause of the United States Constitution. For over forty years, North Carolina's teachers were tenured under the Career Status Law, which set the rules for employing, retaining, and firing of public school teachers. In 2013, North Carolina's General Assembly passed a law that revoked the Career Status Law, allowing school boards to decide not to renew a teacher’s contract for any reason except for a few reasons otherwise prohibited by state law. The North Carolina Association of Educators, Inc. and a handful of tenured teachers challenged the law, arguing that the law was a taking because it applied retroactively to previously tenured teachers and prospectively to probationary teachers who were already on track to tenured status. The state supreme court found that the Career Status Law was an implied term of the teachers' employment contracts upon which they relied in accepting lower pay for the anticipated benefits of job security. That security was removed by revoking the Career Status Law and replacing it with a new system that allowed local school boards and teachers to enter into annual term contracts. The court noted that the State's justification for the passing the law, to alleviate difficulties in dismissing ineffective teachers, was unsupported by any evidence that such a problem existed. The court concluded that the State could not show that it had a legitimate purpose, or that if it were legitimate, retroactively ending teacher tenure was nevertheless an unnecessary and unreasonable step to achieve that purpose. The case, North Carolina Association of Educators, Inc. (NCAE) v. North Carolina, No. 228A15 (N.C. April 15, 2016), is available here.
Wednesday, April 13, 2016
Fourth Circuit Rejects Deliberate Indifference Suit Based On Disability Harassment; N.H. Supreme Court Reinstates Counselor Who Sued To Protect A Student's Privacy
Fourth Circuit Applies Davis v. Monroe County To Student-on-Student Harassment Claims Based on Disability
The Fourth Circuit recently affirmed a summary judgment finding against a disabled student, S.B., who sued his school board claiming that officials had been deliberately indifferent to bullying incidents against him. The circuit court also affirmed a summary judgment ruling against S.B.'s stepfather's retaliation claim alleging that the stepfather was fired as a teacher and athletic director at the same school for advocating on S.B.'s behalf. The Fourth Circuit found that the district court correctly determined that S.B. has provided no evidence that the school board acted with acted with deliberate indifference about S.B.'s disability to hold it liable for bullying or that his stepfather's advocacy for him was related to an adverse employment action against him. While school officials were aware that S.B. was being bullied and took steps to protect S.B., there was no evidence that the harassment towards S.B. was on account of his disability or that the board failed to act when it should have because of disability discrimination against S.B. Applying the Supreme Court's analysis in Davis v. v. Monroe County Board of Education (1999), a Title IX student-on-student sexual harassment case, the Fourth Circuit held that the school board did not have adequate notice that S.B. was being bullied by other students because of his disability, and thus it was not deliberately indifference to the harassment. The case is SB v. Board of Education of Harford, No. 15-1474 (4th Cir. Apr. 8, 2016).
New Hampshire Supreme Court Reinstates Guidance Counselor Who Was Terminated After Seeking to Protect The Privacy of Student Seeking An Abortion
The New Hampshire Supreme Court ordered the reinstatement of a school guidance counselor who was terminated after she sued the principal of her school when he decided to reveal to a student's parent that the student was seeking an abortion. Farmington guidance counselor Demetria McKaig was told by a 15-year-old student that the student planned to get an abortion without her parents' knowledge. McKaig in turn reported the information to the principal, who announced that he planned to call the student's mother. McKaig, believing that state privacy laws prevented the school from informing the student's mother about the planned abortion, contacted the ACLU and with the organization's help, filed a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting the student's mother. The TRO was granted against the principal. McKaig was terminated four months later on the grounds of insubordination, breach of student confidentiality (for reporting the case to the ACLU), and neglect of duties. Ultimately, only the first two grounds were relied on form McKaig's nonrenewal of her contract. The New Hampshire Supreme Court upheld the state board's determination that McKaig was not insubordinate to the principal. The high court then ruled that McKaig's seeking a TRO was justifiable under an emergency exception to the Federal Educational Rights and Privacy Act (FERPA), which was incorporated into the state's education policies by reference. The case is Appeal of Farmington School District, No. 2015-0032 (N.H. 2016).
Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
Monday, March 21, 2016
Securing legal representation is critical for private enforcement of constitutional and statutory rights, and thus rulings that restrict attorneys' fees in such cases will impact rights enforcement. The Fifth Circuit recently released a decision holding that obtaining a stay-put order under the Individuals with Disabilities Education Act (IDEA) is not sufficient to qualify a litigant as a “prevailing party" who is entitled to attorneys' fees. The Fifth Circuit now joins the Third and Seventh Circuits in holding that stay-put orders are interim in nature and because such orders do not address the merits, they do not entitle plaintiffs to attorney fee awards. In the case, Tina M. v. St. Tammany Parish School Board, the plaintiff's son, S.M., a student with a disability under the IDEA, was involved in an off-campus incident that prompted his school to propose an Individualized Education Program in which S.M. would receive at-home tutoring. S. M.’s mother disagreed with this proposal and refused to consent to the IEP change. At a due process proceeding, the Administrative Law Judge granted a stay-put order for S.M. to remain in school pending a decision on the merits. After that order, the parties reached a settlement through mediation, and the plaintiffs moved to terminate the pending administrative hearing on the merits. The ALJ terminated the matter and never reached the merits of the plaintiffs’ claims. The plaintiffs then sought attorneys' fees in the Eastern District of Louisiana under the IDEA's fee shifting provision, 20 U.S.C. § 1415(i)(3). Analogizing the ALJ's stay-put order to a successful preliminary injunction, the district court found that the plaintiffs were the prevailing party for purposes of obtaining attorneys’ fees under the IDEA. The Fifth Circuit reversed. Under section 1415(j) of the IDEA, the circuit court noted, a court deciding a stay-put request simply determines a child’s placement and enters an order maintaining that placement. The IDEA requires an automatic stay in such cases with no merits component to the finding, unlike a preliminary injunction. The stay-put order also did not permanently alter the legal relationship of the parties so that the plaintiffs could be found to have prevailed. “Rather,” the court stated, “it merely provided that S. M. could continue with his prior educational program until a decision on the merits was made.” While the court nodded to the importance of maintaining a child’s placement during due process proceedings, the interim relief of the stay-put order was not merits-based, and thus ineligible for attorneys’ fees. The case can be found at Tina M. v. St. Tammany Parish School Board, No. 1530220 (5th Cir. Feb. 23, 2015).