Monday, November 16, 2015

University Did Not Violate ADA By Banning Student Who Was Susceptible To Heat Stroke From Playing Football

After suffering heatstroke and multi-organ failure during football practice, which ultimately required Towson University student Gavin Class to undergo a liver transplant, Class sought to return to intercollegiate football. Towson University had a "Return-to- Play Policy," which requires each player to be cleared to play by the team doctor. The doctor told Class that Class could not return to football because playing presented an unacceptable risk of serious re-injury or death. Class sued Towson under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, alleging that his inability to regulate his body temperature and his susceptibility to heatstroke constituted a “disability," but, with specified accommodations, he was qualified to play intercollegiate football. The District Court of Maryland agreed with Class, concluding that Class’ proposed accommodations were reasonable (including measuring his temperature every 3-4 minutes) and that Towson had violated the ADA and the Rehabilitation Act. The Fourth Circuit reversed, finding that Class was not "otherwise qualified" to play football under the ADA because he could not obtain the team doctor's clearance, a legitimate and essential eligibility requirement. The circuit court cited a Seventh Circuit case with approval  that “medical determinations of this sort are best left to team doctors and universities as long as they are made with reason and rationality and with full regard to possible and reasonable accommodations.” The case is Class v. Towson University, 15-1811 (4th Cir. 2015).

November 16, 2015 in Cases | Permalink | Comments (0)

Thursday, November 12, 2015

N.M. Supreme Court Holds That Instructional Materials Law That Benefitted Private Schools Is Unconstitutional

Following the majority of states, the New Mexico Supreme Court ruled today that the use of public funds to provide free  textbooks to private school students violated the state constitution. The state supreme court, interpreting Article XII, Section 3 of the N.M. Constitution (which forbids the use of public funds for “the support of any sectarian, denominational or private school, college or university”), struck down the state's Instructional Material Law (IML), which allowed public funds to be used to lend instructional materials to public and private school students. The petitioners in the case are parents who challenged the IML as unconstitutional because it forced them to support religious private schools through public fund and parents sued N.M. Education Secretary Hanna Skandera. The parents' case was dismissed after the district court granted the Department's summary judgment motion; the N.M. Court of Appeals affirmed. In reversing the Court of Appeals, the state supreme court noted that while the lower court believed that the state constitution only protected against the establishment of religion -- similar to the federal constitution's Establishment Clause -- the N.M. Constitution actually prohibits providing materials for students attending private schools generally, "whether such schools are secular or sectarian." The supreme court reversed and remanded the case for the district court to find that the IML violated the state constitution. The case is Moses v. Skandera, No. 34,974 (N.M. Nov. 12, 2015).

November 12, 2015 in Cases, State law developments | Permalink | Comments (0)

Friday, October 30, 2015

Fourth Circuit: Congress' IDEA Amendments Did Not Abrogate Supreme Court's FAPE Definition in Rowley

The Fourth Circuit recently held in O.S. v. Fairfax Cnty. Sch. Bd., No. 14-1994, 2015 WL 6122986 (4th Cir. Oct. 19, 2015), that the standard for a free appropriate public education under the Individuals with Disabilities Education Act were not changed by Congress’ 2004 amendments to the IDEA. Thus, school districts are required to meet no higher standard for a FAPE than that set by the Supreme Court in Board of Education v. Rowley (1982). In the case, the parents of O.S., a second-grader, requested a one-on-one aide, extended school year services, and that Fairfax County, VA, school board assign a full-time nurse to O.S.’s school to address O.S.’s disabilities. The school’s representatives on O.S.’s individualized education program team did not adopt those requests, and O.S.’s parents did not agree to the new IEP. O.S. sued in federal district court, which found that the school board had provided a FAPE. On appeal of that decision, the Fourth Circuit rejected O.S.’s arguments that the preamble to Congress’ 2004 IDEA amendment stating its purpose to remedy “low expectations” of children with disabilities,” meant that the IDEA now requires “meaningful” educational benefit as distinct from “some” educational benefit. Following the Tenth Circuit on this issue (and rejecting a contrary Ninth Circuit case), the Fourth Circuit held that the standard for a FAPE remains the same: so long as a child receives some educational benefit, meaning a benefit that is more than minimal or trivial from special instruction and services, a school district has done enough. 

October 30, 2015 in Cases, Special Education | Permalink | Comments (0)

Friday, October 16, 2015

Eleventh Circuit: Ala. Education Assoc. Not Entitled To Discovery About Legislators' Subjective Intent In Passing Law Limiting Use of Funds

The Eleventh Circuit held yesterday that the Alabama Education Association (AEA) could not enforce subpoenas for lawmakers' files in its suit claiming that state Republicans retaliated against the association by eliminating automatic state payroll deductions for membership dues used for political activity. In 2010, the Alabama Legislature passed Act 761, which prohibited payroll deductions for state and local public-sector employee association dues if membership dues funded political activity. The AEA sued under sec. 1983, claiming that Act 761 violated its First Amendment rights because the the subjective motivations of lawmakers in passing the Act governmental retaliation against the AEA for its political speech on education policy. During the suit, the AEA sought subpoenas to show that state Republicans retaliated against the association by passing the restriction on payroll deductions of its members. Alabama legislators responded that legislative privilege shielded them from the AEA’s subpoenas to probe lawmakers' motivations for passing Act 761. The Eleventh Circuit agreed with the legislators. While acknowledging that the AEA's First Amendment claim was an important federal interest, that interest did not yield to legislative privilege. The circuit court distinguished those cases in which the federal interest would outweigh legislative privilege, such as a criminal prosecution. The court held, "the First Amendment does not support the kind of claim AEA makes here: a challenge to an otherwise constitutional statute based on the subjective motivations of the lawmakers who passed it." The Eleventh Circuit further relied on the Supreme Court's holding in United States v. O’Brien, 391 U.S. 367 (1968), that, as a “principle of constitutional law,” courts cannot “strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” The case is In Re: Bentley, 13-10382 (Hubbard v. Alabama Education Association) here.

October 16, 2015 in Cases, State law developments | Permalink | Comments (0)

Tuesday, October 13, 2015

Fifth Circuit Finds School District Not Deliberately Indifferent to Student-on-Student Racial Harrassment

The Fifth Circuit denied an appeal today of three African-American students who were subjected to  student-on-student racial harassment at school, finding that the plaintiffs failed to raise a genuine dispute that the district was deliberately indifferent to the students' claims. Three African-American sisters sued the Marion Independent School District (Texas) and two of its employees under Title VI of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, after fellow students called the sisters racial slurs and on sister found a noose near her car at school. The sisters also alleged that Marion ISD officials treated them differently for minor rule violations than their Caucasian peers. The students and Marion ISD were not able to resolve the girls' complaints about their treatment in school during grievance proceedings, and the sisters sued. This is the first time that the Fifth Circuit ruled on a Title VI claim premised on a racially hostile environment arising from student-on-student harassment. The circuit court adopted the deliberate indifference standard from the Supreme Court case Davis ex rel. Lashonda D. v. Monroe Cty. Bd. of Educ., analogizing that case's holding to Title VI (that a recipient of federal funding can be liable for student-on-student sex-based harassment under Title IX if the recipient was deliberately indifferent). The court then concluded that the district was not deliberately indifferent because Marion ISD took "relatively strong action to address the most egregious incidents" and made some effort in response to all of the incidents of harassment. The circuit court, following the the Supreme Court's admonition in Davis that “courts should refrain from second-guessing the disciplinary decisions made by school administrators,”  affirmed the lower court's grant of summary judgment for the district on the Title VI claim. The case is Fennell v. Marion Independent School, 14-51098 (5th Cir. 2015).

October 13, 2015 in Cases | Permalink | Comments (0)

Friday, October 9, 2015

Federal Suit Alleges Racial Discrimination in Arkansas' Takeover of Little Rock School District

The LRSD's overall faculty population is 32% black, but minorities make up a much smaller percentage of the faculty at the district's schools with a majority-white student body.

Cribbed from the Northwest Arkansas Democrat Gazette: Another suit challenging the Arkansas Board of Education's decision to assume control of the Little Rock School District (LRSD) was filed Wednesday, this time in federal court. The federal complaint was filed by parents and students in the Little Rock district and two former school board members who were displaced after the state's January takeover of the district, after which a state court complaint was filed by the same attorney who represents the complainants in the federal case. The federal suit alleges that LRSD's black students suffered racial discrimination after a federal court held that the district had achieved unitary status in 2007, by being disciplined more harshly than their white peers, being educated in inadequate facilities, having their elected school board stripped of power, and by the district's building new schools away from majority-black areas. The complaint also notes that in the LRSD schools with a majority-white student body, the percentage of minority teachers are low (see graphic, courtesy of the Arkansas Times). The suit requests that the school board be restored, that LSRD be enjoined from opening a new school in west Little Rock (a majority-white area), and that the state be enjoined from approving new charter schools until the LRSD has a "constitutionally adequate" facilities plan. The Arkansas Times has posted an unofficial copy of the complaint in Doe v. Arkansas Dept. of Ed. here.

October 9, 2015 in Cases, Discrimination, News | Permalink | Comments (0)

Friday, October 2, 2015

Alabama Court Finds Police Officers' Failure to Adequately Decontaminate Students from Pepper Spray Effects and Use of Spray on Nonviolent Students Unconstitutional

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The Northern District of Alabama ruled yesterday that Birmingham police officers (acting as school resource officers) used excessive force when they pepper-sprayed students who were not posing a danger and when officers failed to adequately decontaminate students from effects as recommended by the spray's manufacturer when there were available facilities to do so. discussed the suit earlier this year, The plaintiffs, students from eight of the city's nine high schools,  alleged that local police used excessive force by spraying students with a substance called Freeze +P, a spray made up of Orthochlorobenzalmalonitrile (CS) and Oleoresin Capsicum (OC), that causes “strong respiratory effects" and "severe pain." The spray was used to break up fights, disburse bystanders, and discipline students who were verbally disrespectful but not physically violent.  The officers were following Birmingham Police Department procedures in using the spray, as summarized by the court in Fig. 1. The district court found that the sprayings were unconstitutional seizures under the Fourth Amendment, and that officers' failure to arrange for sprayed students to be decontaminated was part of those ongoing seizures. Thus, the court concluded, the plaintiffs' claims were best evaluated under the Fourth Amendment's unconstitutional seizure doctrine, rather than the Fourteenth Amendment's "shock the conscience" standard. Turning to remedies, the district court found that six of the eight student-plaintiffs were entitled to damages. The court declined the plaintiffs' request to ban the use of Freeze+P in Birmingham schools, given the "scenarios when it is appropriate for S.R.O.s to use Freeze +P in the school setting." The court instead ordered the parties to meet and develop a training and procedures plan for S.R.O.s’ use of Freeze+P, including protecting uninvolved persons from overspray. The court also suggested that the Birmingham police chief remind his officers that "enforcement of school discipline is not part of their job description and that Freeze+P is not suited for general crowd control." Given the chief's comments earlier this year that the school system was too dependant on the police department to resolve low-level misbehavior, he may agree with the court's sentiment. The plaintiffs were represented by the Southern Poverty Law Center.  The opinion in J.W. v. Birmingham Board of Education is here.

October 2, 2015 in Cases, Discipline | Permalink | Comments (0)

Thursday, October 1, 2015

The Ninth Circuit Takes The Middle Ground In O'Bannon v. NCAA, But The Case for College Athletes' Compensation Is Still Open

The Ninth Circuit decided O'Bannon v. NCAA yesterday, upholding the district court's finding that the National Collegiate Athletic Association's restraints on what its member schools could pay Div. I college basketball and football players violated the antitrust laws, but vacating the lower court's  remedy that would have required the NCAA to allow its member schools to pay student-athletes up to $5,000 per year in deferred compensation. The case arose when class plaintiffs, represented by former UCLA basketball player Ed O'Bannon, challenged the NCAA's rules against player compensation that prohibit college athletes from receiving any compensation to be eligible to play college sports. The NCAA's rules applied to players' names, likenesses, and images even after they finished school, which prompted the suit when O'Bannon and other athletes recognized their likenesses in NCAA-licensed video games. Last year, a California district court ruled that NCAA violated antitrust law by not allowing athletes to be paid for the use of their names and likeness and enjoined the NCAA from prohibiting its member schools from giving student-athletes scholarships up to the full cost of attendance at their respective schools and paying players $5,000 each year in deferred compensation to be held in trust while they were still eligible to play college sports. While the NCAA will be unhappy that the Ninth Circuit declined to exempt it from antitrust scrutiny because of its tradition of amateurism, it should be relieved that the panel credited its argument that amateurism is a legitimate procompetitive purpose that supports the NCAA's eligibility rules. The class plaintiffs, on the other hand, can claim partial victory for the Ninth Circuit's recognition that the NCAA's rules are"more restrictive than necessary to maintain its tradition of amateurism in support of the college sports market," thus providing more traction to help the pipeline of cases pressing for compensation for college athletes, including Jenkins v. NCAA. The Ninth Circuit stressed that its opinion was limited and that it did not want to change college sports into another minor league of professional sports. Mark Edelman at Forbes thinks that the plaintiffs lost this case during the bench trial below in not countering the NCAA's study showing that that its rules increased consumer demand among fans to attend college sporting events - an important pro-competitive benefit. Read the Ninth Circuit's opinion in O'Bannon v. NCAA here.

October 1, 2015 in Cases, News | Permalink | Comments (0)

Tuesday, September 29, 2015

School Speech Shorts: School District Employees Entitled to Qualified Immunity in Facebook Search Suit; Univ. of Kansas Cannot Expel Student for Off-Campus Tweets

The Fifth Circuit recently reversed a district court's decision denying qualified immunity to officials of a Mississippi school district on a First Amendment claim. The case arose when a teacher in the Pearl Public Schools, who served as the school's cheer squad sponsor, coercively requested a student's Facebook log-in information, accessed her Facebook messages, and later punished the student by removing her from the cheer squad because of the messages' content. After the student was dismissed from the squad, her parents filed a § 1983 action alleging that school officials violated their daughter's First and Fourth Amendment rights by searching her messages. The Fifth Circuit held that the school officials were entitled to qualified immunity because the law was not “clearly established” when the incident occurred (September 2007) that searching a student's Internet messages would violate either the First or Fourth Amendments if the teacher was acting on a reasonable suspicion that that the student had posted threatening messages immediately after a school event. The finding of qualified immunity was compelled, the Fifth Circuit explained, by conflicting rulings in school search cases until the Supreme Court handed down Safford Unified Sch. Dist. No. 1 v. Redding in 2009. The circuit court likewise held that school officials had qualified immunity on the First Amendment claim, because they did not have "fair warning," given the available precedent, that removing the student from the cheer squad because the content of her Facebook messages would violate the First Amendment.  Read the opinion in Jackson v. Ladner, No. 13-60631 (5th Cir. Sept. 15, 2015) here.

A Kansas appellate court held last week that University of Kansas had no authority to expel a student for posting sexually harassing tweets about another student even though the university had ordered him not to contact the other student. The harassing communications were done off-campus, and construing the University's student code, the court concluded that the "only environment the University can control is on campus or at University sponsored or supervised events." The case is Yeasin v. Univ. of Kansas, No. 113,098 (Kan. App. Sept. 25, 2015).

September 29, 2015 in Cases, First Amendment | Permalink | Comments (0)

Wednesday, September 16, 2015

Third Circuit Denies Teacher's First Amendment Retaliation Claim

The Third Circuit recently upheld a summary judgment finding in a teacher’s retaliation claim after she was discharged after her derogatory comments about students gained national attention. The Third Circuit held that while the teacher’s speech may have touched on a matter of national concern, it caused sufficient disruption for the students and the school district to warrant the teacher’s discharge, and thus speech was not protected under Pickering v. Board of Education. The case arose when a teacher for a Pennsylvania school district, Natalie Munroe, began a blog entitled "Where are we going, and why are we in this hand basket?" In the blog, Munroe discussed personal matters but also complained about her students, her co-workers, and the school where she worked. She did not expressly identify either where she worked or lived, the name of the school where she taught, or the names of her students, but described students as the “devil’s spawn,” and “rat-like.” Students and the school district discovered the blog, and after complaints about Munroe’s professionalism, the school district assigned a “shadow teacher” to teach Munroe’s subject at the same times that Munroe did and allowed students to opt-out of Munroe’s class. Munroe meanwhile became a minor celebrity in the national media because of the views expressed on the blog. Eventually, the school district discharged Munroe, and she brought a retaliation claim under 42 U.S.C. § 1983, alleging that the district violated her First Amendment rights. She claimed that her termination based on her private blog and her media interviews. The Third Circuit found that Munroe’s national media interviews did not rise to the level of constitutionally protected expression, finding that “Munroe’s various expressions of hostility and disgust against her students would disrupt her duties as a high school teacher and the functioning of the School District.” The Third Circuit concluded that the district’s interest in eliminating Munroe’s disruptive speech and presence outweighed her “interest, as well as the interest of the public, in her speech.” Munroe v. Central Bucks School District, No. 14-3509 (3d Cir. Sept. 2015) is here.

September 16, 2015 in Cases, First Amendment | Permalink | Comments (0)

Tuesday, September 1, 2015

Eighth Circuit Upholds District's Decision to Opt Out of School Choice Law To Comply With Desegregation Mandates

The Eighth Circuit has affirmed a district court's ruling that an Arkansas school district acted properly in opting out of the state's school choice statute because to comply with its efforts to remedy the effects of past racial segregation. Derek has followed the related litigation over the 2013 Arkansas Public School Choice Law, which allows students to transfer to schools outside their district, but also allows districts to claim an exemption from the Act if the district was subject to a desegregation order or mandate of a federal court. The plaintiffs in yesterday's Eighth Circuit  decision were parents in the Blytheville School District who were prevented from sending their children to another district because the district resolved, for the 2013–2014 school year, to opt out of the School Choice Law because it would conflict with its obligations under a federal court desegregation order. The plaintiffs sued in federal court, arguing that the district violated their due process and equal protection rights under § 1983 and Arkansas' civil rights law by using race as the reason for its exemption and nullifying the 2013 Act "on the pretense that it was subject to a desegregation order" even though that case was closed in 1978. The Eighth Circuit affirmed the summary judgment order of the U.S. District Court for the Eastern District of Arkansas in favor of the district. The circuit court held that the district had a rational basis for believing that the desegregation suit and the related federal agency oversight meant that the district could not take any action that could result in returning to the dual-school system dismantled by the federal desegregation order. The Eighth Circuit also rejected arguments that a parent's ability to choose where his or her child is educated within the public school system is a fundamental right of liberty; nor did the Act create a property interest in exercising public school choice because the parents did not have more than "a mere subjective expectancy of school choice under the Act" since receiving nonresident districts retain discretion to accept or reject transfer students. The circuit court also held that the parents failed to prove that the district had a disparate purpose in claiming the exemption, in part because the parents had no evidence that African-American students were allowed nonresidential transfers on the basis of race. Thus, the circuit court concluded, the proper test for the district's action was rational basis, and the district had a rational basis for believing it was subject to a federal court desegregation order or federal agency mandate which it would violate if it failed to claim the exemption. Read Adkisson, et al  v. Blytheville School District #5 here.


September 1, 2015 in Cases | Permalink | Comments (0)

Tuesday, July 28, 2015

Settlement Reached For Student Expelled After Protesting College's Parking Deck Plans

A settlement has been reached in Barnes v. Zaccari, the long-running case in which a Valdosta State University (Ga.) student was expelled in 2007 after he protested the VSU president's plans to build a new parking deck. After a letter-writing campaign opposing the environmental impact of VSU's parking deck plans, student Thomas Barnes posted a collage on his Facebook page titled “S.A.V.E.—Zaccari Memorial Parking Garage” that included a portrait of then-VSU President Ronald Zaccari. (A copy of the collage can be found here.) Zaccari interpreted the word "memorial" to apply to deceased persons, therefore signaling that Barnes contemplated harm to him. He ordered that Barnes be "administratively withdrawn" from VSU because Barnes presented a “clear and present danger” to the campus. Barnes sued Zaccari in federal court, claiming violations of his  due process and free speech rights. The district court denied Zaccari's summary judgment motion based on qualified immunity. A federal district court denied Barnes' First Amendment retaliation claim, finding that because it was pled as a conspiracy claim and VSU's administrators opposed Zaccari's actions, there was no agreement to form a conspiracy. In 2013, a federal jury found the collage was innocuous expression, finding Zaccari personally liable for $50,000 for violating Barnes's rights. In January 2015, the Eleventh Circuit held that the district court erred in granting summary judgment in Zaccari's favor on the First Amendment retaliation claim. Barnes v. Zaccari, 592 Fed.Appx. 859 (11th Cir. 2015). VSU apparently has decided that it is done fighting the case. Read more about the settlement at the Foundation for Individual Rights in Education here.

July 28, 2015 in Cases, First Amendment, News | Permalink | Comments (0)

D.C. Circuit Holds That District Must Pay For Residential School Placement After Failing To Provide An Alternative

Leggett v. Dist. of Columbia, No. 14-7021 (D.C. Cir. July 10, 2015) - Short take: when a school district drags its feet in providing a free appropriate education required under the Individuals with Disabilities Education Act, the district may be on the hook for a more costly one. In Leggett, the D.C. Circuit held that the D.C. Public Schools (DCPS) was required to reimburse the costs of a private boarding school placement after DCPS failed to provide an individualized education program by the start of the school year. The IDEA requires school districts to reimburse parents for their private-school expenses if "(1) school officials failed to offer the child a free appropriate public education; (2) the private-school placement chosen by the parents was otherwise “proper under the Act”; and (3) the equities weigh in favor of reimbursement—that is, the parents did not otherwise act “unreasonabl[y].”" In Leggett, the parent requested an IEP under the Individuals with Disabilities Education Act after her child did not complete the eleventh grade. DCPS failed to develop an IEP in time for the school year. After being told that her child would benefit from residential placement, Leggett chose a private boarding school where her child thrived. She sought reimbursement from DCPS for the cost of the residential program. DCPS countered that the residential school placement—with activities such as an equestrian program—was unnecessary because the student could have succeeded in a non-residential program. Both the due process hearing officer and the D.C. District Court found that DCPS violated the IDEA by failing to have an IEP in place by the beginning of the school year, but denied reimbursement because, in their view, the student did not require a residential program. The D.C. Circuit reversed the denial of reimbursement, holding that under Bd. of Ed. of Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982), the student’s placement was proper because DCPS had offered no IEP, “identified no suitable alternative, and failed even to challenge Leggett’s claim that [the residential school] was the only available placement.” The circuit court held that on remand, DCPS could challenge the costs of extracurricular activities that were unnecessary for the student’s education. Read the opinion here.

July 28, 2015 in Cases, Special Education | Permalink | Comments (0)

Wednesday, July 15, 2015

Court Finds That D.C. District Neglected "Child Find" Duty for Preschoolers

The U.S. District Court for the District of Columbia again found last week that the D.C. school district failed to comply with their “Child Find” duty to locate disabled students in the birth-to-five population, as required by the Individuals with Disabilities Education Act. The court found in 2010 that the D.C. district neglected its duties for years to identify, evaluate, determine eligibility, and ensure a smooth transition for services for preschool disabled children covered by the IDEA and the Rehabilitation Act. Following Wal-Mart v. Dukes in 2011, the D.C. Circuit Court vacated the original plaintiff class certification of disabled children and remanded for the district court to determine whether the plaintiffs' claims had sufficient commonality to represent a class. On remand, the district court certified four subclasses. In last week's decision, the district court found no genuine dispute that the "District's attempts to identify, evaluate, determine eligibility of, and transition disabled children were inadequate through and including 2007, [which is] sufficient to establish the District's liability under the IDEA on each subclass's claim." The District had been cited by the Office for Special Education Programs (OSEP) in 2001 for failing to conduct timely evaluations under its program compliance agreement. The case is DL v. D.C., No. CV 05-1437, 2015 WL 3630688 (D.D.C. June 10, 2015).

July 15, 2015 in Cases, Special Education | Permalink | Comments (0)

Thursday, July 2, 2015

Supreme Court Grants Certiorari in Teachers' Union Dues Case

The Supreme Court granted certiorari Monday to hear Friedrichs v. California Teachers Association, the case about compulsory teachers' union dues that some observers say will threaten  union financing. Friedrichs challenges California's “agency shop” laws, which require public employees to pay union dues as a condition of employment, Friedrichs argues that state's agency shop laws violate the First Amendment particularly when the union's positions conflict with individual teachers' on-the-job interests or personal beliefs. Friedrichs' certiorari petition presents two issues:

(1) whether Abood v. Detroit Board of Education (1977) should be overruled and public-sector “agency shop” arrangements (that require teachers to join the union or pay the equivalent of union dues) should be invalidated under the First Amendment; and

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

In Abood, the Supreme Court held that nonunion public sectors employees could not be required to fund political or social activities to which they objected, but employees could be required to fund activities that benefitted all employees related to “collective bargaining, contract administration, and grievance adjustment purposes.” Because Abood controlled the outcome of Friedrich's claims, the Ninth Circuit summarily affirmed the district court's ruling against Friedrich.

July 2, 2015 in Cases, Teachers | Permalink | Comments (0)

Monday, June 29, 2015

Supreme Court Will Revisit Diversity Admissions Policies in Fisher v. UT Austin

The Supreme Court granted certiorari today in Fisher v. Univ. of Texas to revisit race-conscious admissions policies at the University of Texas at Austin. The Supreme Court remanded the Fisher case in 2013 for the Fifth Circuit to conduct a "searching examination" of whether UT's policies were narrowly tailored to serve a compelling government interest. The Chronicle of Higher Education reports that in addition to the Fifth Circuit's upholding UT's policy, the justices may also consider new evidence that then-UT Austin President William C. Powers Jr. intervened on behalf of well-connected applicants (the elephant in the room for racial diversity policies in college admissions). The Chronicle of Higher Education's story is here.

June 29, 2015 in Cases, News | Permalink | Comments (0)

Monday, June 22, 2015

Supreme Court Rules that Non-testifying Witness' Statements to Teachers Are Admissible at Trial

The Supreme Court decided Ohio v. Clark last week, a case that we discussed earlier in the summer here, holding that a three-year-old's statements to his preschool teachers that his mother's boyfriend had hit him could be admitted at trial even though the child did not testify. The Court found that the child's statements were not "testimonial" under the Sixth Amendment because they were made in response to his teachers' questions about his injuries and not for the purposes of criminal law enforcement. The Court also indicated that in most instances, statements of non-testifying young children to daycare workers or teachers can be admitted at trial without violating the Confrontation Clause. Read the opinion here.

June 22, 2015 in Cases | Permalink | Comments (0)

Wednesday, June 3, 2015

Class Action Suit Asks Court to Recognize Complex Trauma as a Disability

A novel class action suit asks a federal court to require the Compton (CA) Unified School District to recognize and accommodate the effects of multiple traumas on its students. The plaintiffs are students who have suffered complex trauma of violence, abuse, and racism that has negatively impacted their school attendance and success. They allege that the Rehabilitation Act and Americans with Disabilities Act require the district to "accommodate students who are being denied benefits of educational programs solely by reason of experiencing complex trauma." They allege that the Compton school district has high concentrations of trauma-impacted students for whom individualized education plans are insufficient. Instead, the plaintiffs maintain, the district should start schoolwide trauma practices to keep students in school, including early and appropriate interventions to teach resilience; training educators about trauma; avoiding re-traumatizing students through the use of punitive discipline; and ensuring access to consistent mental health support. In a LA Times article, plaintiffs' counsel cited a counseling program started by the Los Angeles school district for trauma-impacted students as an appropriate intervention. The lawsuit is Peter P., et al., v. Compton Unified Sch. Dist., 2015 WL 2393294 (C.D.Cal., filed May 18, 2015).

June 3, 2015 in Cases | Permalink | Comments (0)

Monday, June 1, 2015

Federal District Court Overturns School Policy Allowing Distribution Of Only Student-Written Literature

The Western District Court of Washington overturned a student's suspension on Friday for preaching and distributing Christian literature, the Pacific Justice Institute reports. Cribbing from the Institute's press release: Plaintiff Michael Leal is a senior at Cascade High School, part of the Everett Public Schools system. Leal violated the school district policy several times by preaching and passing out religious materials about his Christian faith to fellow students during the school day. The district's policy limited passing out such materials to times before or after the school day at school building entrances or with permission from school administrators. The district also required that this literature be written or produced by a student. Leal was disciplined and threatened with expulsion for repeatedly violating the policy. The federal district court had stated earlier in the case that the district's time, place, and manner restrictions on such speech were appropriate but was "troubled" by that part of the policy that prohibited students from passing out materials that were not written by students. According to the Institute's report, the district court decided that part of the policy could not stand. The case is Leal v. Everett Pub. Sch., No. 2:14-CV-01762 TSZ, 2015 WL 728651 (W.D. Wash. 2015).


June 1, 2015 in Cases, First Amendment | Permalink | Comments (0)

Tuesday, May 26, 2015

Federal Court Approves Prayer At School Events If Students Selected On Neutral Criteria

A federal court in South Carolina recently found that a school district’s practice of including Christian prayers at elementary school graduation ceremonies violated the Establishment Clause, but approved a revised policy that allows student-initiated prayer at school events if the student is selected to speak based on “neutral criteria such as class rank or academic merit.” The plaintiffs, parents of an elementary student in the district joined by the American Humanist Society, challenged the Greenville County School District’s practice of having graduation ceremonies at a college chapel at which prayer opened and closed the event. (The claim about the location of the event was dismissed earlier.) The court found that the district’s new policy allowing students to initiate prayer did not contravene the Supreme Court’s First Amendment holdings because the district’s revised policy “simply refuses to preemptively restrain a certain type of message, namely religious,” as opposed to dictating when private religious speech would be allowed during school events. The case, American Humanist Assoc. v. South Carolina Dept. of Ed., is available here.

May 26, 2015 in Cases, First Amendment | Permalink | Comments (0)