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).
Friday, March 11, 2016
We have been following the litigation challenging Nevada's school voucher law as violating provisions of the Nevada Constitution (Lopez v. Schwartz), here, here, and here. The litigation challenges Nevada's Senate Bill 302 which permitted parents to apply for educational grants for private schools, financed by deductions from local school districts' budgets. Yesterday, the Nevada Supreme Court denied a mandamus petition in the case, holding that the district court correctly denied the request of a group of parents to intervene in the case as defendants. A Nevada district court ruled in January that S.B. 302 violated state constitutional provisions requiring support for public education and is holding a trial on the merits. The parents sought permissive intervention as defendants, arguing that the January ruling prevented them from applying for vouchers for their children and that their perspective would assist the trial court "in focusing on the effect of the challenged law on its real beneficiaries, parents and children." The Nevada Supreme Court rejected the parents' arguments, finding that the parents shared the same interests and defenses as the main defendant, the Nevada state treasurer, in having S.B. 302 declared constitutional. The Nevada Supreme Court decision denying mandamus in Hairr v. First Jud. Dis. Ct., No. 69580 (Nev. Mar. 10, 2016), can be found here.
Tuesday, March 8, 2016
Last week, a federal district court approved of a plan to consolidate a Mississippi school district that was under a 1970 desegregation order. In 1970, the Starkville Municipal Separate School and the Oktibbeha County School Districts were ordered to end their dual school system and to create a unitary school systems under Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). In 2014, the Mississippi legislature voted to consolidate the two districts, but the Department of Justice objected to the consolidation plan, citing the 1970 desegregation order. In the recent case, Montgomery v. Starkville School District, the Northern District of Mississippi ordered Mississippi and DOJ to fashion a new desegregation order that would govern the consolidated district from the 2016-17 school year until it is declared unitary by the court. In approving the consent order, the court is requiring the district to set attendance zones, adhere to a majority-to-minority transfer policy, and submit various types of proof of the racial and ethnic composition of the schools in the consolidated district. The court also required the state to assign employees in such a way that "thatno school in the district could be considered a “white school” or “black school” by virtue of its administrator, faculty, or staff assignments." The court's opinion in Montgomery v. Starkville School District, No. 1:83-CV-00293-MPM (N.D. Miss. Mar. 3, 2016) can be found here.
Tuesday, January 26, 2016
The U.S. Supreme Court has granted certiorari in Trinity Lutheran Church v. Pauley, No. 15-577 (cert. grant. Jan. 15, 2016), which challenges Missouri's establishment clause barring the grant of public funds to a church. The church sued Missouri officials after being denied a grant of waste management funds to resurface a school playground on church property. On appeal, the Eighth Circuit affirmed the dismissal of the church's suit, citing Missouri's "high wall" against religious entanglement. Cribbed from the Questions Presented summary:
Trinity Lutheran Church applied for Missouri's Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours--a purely secular matter. But the state denied Trinity's application solely because it is a church. The Eighth Circuit affirmed that denial by equating a grant to resurface Trinity's playground using scrap tire material with funding the devotional training of clergy. The Eighth Circuit's decision was not faithful to this Court's ruling in Locke v. Davey, 540 U.S. 712 (2004), and deepened an existing circuit conflict. Three lower courts--two courts of appeals and one state supreme court--interpret Locke as justifying the exclusion of religion from a neutral aid program where no valid Establishment Clause concern exists. In contrast, two courts of appeals remain faithful to Locke and the unique historical concerns on which it relied.
The question presented is “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”
Mark Walsh at The School Law Blog notes the potential impact of this case and another cert. grant, Douglas Cnty. School Dist. v. Taxpayers for Public Education, which if interpreted broadly, may challenge "Blaine amendments" language in several state constitutions.
Illinois Supreme Court Rejects Chicago Teachers' Challenge To "Do Not Hire" Designations In Personnel Files
And speaking of Chicago (from today's post), the Illinois Supreme Court recently held that the Illinois Educational Labor Relations Board (IELRB) did not have to arbitrate grievances over “Do Not Hire” (DNH) designations that were placed in probationary teachers’ personnel files without notice. From the opinion: The Chicago Teachers Union filed a claim with the IELRB that the Board of Education of the City of Chicago (Board) committed an unfair labor practice by refusing to arbitrate grievances over the DNH designations applied to probationary teachers. Probationary teachers were marked DNH when they were nonrenewed twice or who were given an unsatisfactory performance rating, but the school board did not tell teachers when they had a DNH designation in their personnel files. After a hearing, the IELRB found that the school board had violated the Illinois Educational Labor Relations Act, but the state court of appeals reversed that decision. The Illinois Supreme Court affirmed the court of appeals, finding that the grievances conflicted with the school board’s clear statutory authority to refuse to rehire probationary teachers, and the board was not required to arbitrate those grievances under the Labor Relations Act. The opinion has a strong dissent from Justice Kilbride, who argued that the Labor Relations Board’s decision should have given greater administrative defererence, as “the IELRB did not clearly err in finding the DNH grievances in this case arbitrable under  the Act.” The case is Bd. of Educ. of the City of Chicago v. Illinois Educational Labor Relations Board, 2015 IL 118043 (Ill. Dec. 19, 2015).
Wednesday, January 20, 2016
A California district has ruled that a claim alleging that athletic staff at Pepperdine University discriminated against two former students because of their perceived sexual orientation could proceed despite Pepperdine's argument that sexual orientation is not cognizable under Title IX. The district court in Videckis v. Pepperdine University, No. CV 15-00298 (C.D. Cal. Dec. 15, 2015), cited recent Equal Employment Opportunity Commission (EEOC) rulings that sexual orientation discrimination is covered under Title VII. In Videckis, two college athletes allege that the Pepperdine women's basketball staff harassed and discriminated against them because of the staff's belief that plaintiffs were lesbian. The plaintiffs claim that Pepperdine's coaching staff repeatedly asked them about their private sexual behavior and told the players that lesbianism would not be tolerated on the women's basketball team. Plaintiffs also claim that they were refused clearance to play basketball because of the coaching staff's discriminatory views against lesbians. In the order, the district court wrote that "[i]t is impossible to categorically separate "sexual orientation discrimination" from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender." The plaintiffs also allege sex and gender stereotype discrimination and retaliation under Title IX.
Tuesday, December 15, 2015
Federal courts commonly find that live nativity scenes on school grounds violate the First Amendment's Establishment Clause. Consistent with that precedent, the Northern District of Indiana issued a preliminary injunction earlier this month enjoining a Indiana high school from "portraying a nativity scene during a musical Christmas show. Last weekend, the high school in the case, Concord High School, presented its Christmas show with a static nativity scene, a move that the plaintiffs in the case say exploited a loophole in the order to ignore the court's ruling. On December 2, the district court granted the request of the Freedom From Religion Foundation (FFFR) to enjoin "any portrayal of a scene that is composed of live performers as part of [the school's] Christmas" Spectacular shows." The district court agreed with the FFFR that the nativity would "convey a message of endorsement of religion to a reasonable observer," thus failing the requirement of government neutrality towards religion established in Lemon v. Kurtzman, 403 U.S. 602 (1971). The district court rejected the school's arguments adding projected pictures with symbols of Chanukah and Kwanzaa and having the band and choir perform a tribute to each holiday to the Christmas show made the nativity scene simply an educational reference to Christianity rather than an endorsement. The district court noted that although the nativity was on stage for twelve minutes out of the ninety-minute show, (about thirteen percent of the show), the other religions were three to four minutes and had no visual performance as part of the musical. In the school's potential defense for using mannequins in the weekend show, the court's opinion had rejected FFFR's argument that a performed nativity scene would necessarily endorse religion without considering the context in which that performance would take place. The case is Freedom From Religion Found. v. Concord Cmty. Sch., No. 3:15-CV-463 JD, 2015 WL 7776561 (N.D. Ind. Dec. 2, 2015).
Thursday, December 10, 2015
Fifth Circuit Rejects Claims That District Disproportionately Funneled At-Risk Students to Minority Schools
The Fifth Circuit recently decided Lewis v. Ascension Parish Sch. Bd., the contentious school rezoning case that we discussed on the blog last year when it was headed to trial. To recap, plaintiff Darrin Lewis challenged a Louisiana school board's rezoning plan (called Option 2f) that assigned a disproportionate number of at-risk students to Lewis' children's school, East Ascension High School, the only majority nonwhite and majority at-risk high school in the district. (East Ascension was projected to have 57% at-risk enrollment, more than twice the at-risk enrollment at nearby majority-white schools.) Lewis argued that the board's feeder plan deprived Ascension students of educational opportunities afforded to non-minority students. In its November decision, the Fifth Circuit upheld the district court's judgment for the school board, which concluded that the plan was facially race neutral because Lewis did not make a threshold showing that the redistricting plan treated similarly situated students of different races differently and failed to establish that the plan had a discriminatory effect. The Fifth Circuit focused on Lewis' two primary arguments: that "Option 2f was subject to strict scrutiny (1) because it contains explicit racial classifications, and, alternatively, (2) because its funneling feature was motivated by racial animus and had a disproportionately adverse impact on nonwhite students in the East Ascension feeder zone."
Resolving the first argument, the Fifth Circuit adopted the reasoning of the Third and Sixth Circuits that school zoning plans that assigns students based on their home addresses "is facially race neutral, and the rezoning body’s consideration of demographic data in drawing the relevant geographic boundaries does not amount to making an express classification." In doing so, the Fifth Circuit distinguished Ascension Parish's plan from that would be subject to strict scrutiny, such as the one in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), because in Parents Involved, in which officials explicitly considered race and the overall racial makeup of the school when making student assignments. TAlthough the Ascension district considered racial demographics and desired to maintain unitary status through racial balancing, the court concluded that the district's decision was not explicitly based on race and thus was subject to rational basis rather than strict scrutiny review. The circuit court also rejected Lewis' argument that the redistricting plan’s feeder plan was subject to strict scrutiny review because it had both a discriminatory purpose and a discriminatory effect. The court found that Lewis' evidence that the percentage of at-risk students in the East Ascension feeder zone increased after Option 2f was insufficient to show either discriminatory purpose or effect. Lewis v. Ascension Parish Sch. Bd., No. 15-30030 (5th Cir. Nov. 17, 2015) is here.