Friday, April 21, 2017
A Pennsylvania school district lost its appeal yesterday of an injunction to prevent the district from increasing property taxes after a state court found that the district misled taxpayers about its finances. The Lower Merion School District lost the appeal after it failed to file post-trial motions against the 2016 permanent injunction. That injunction ordered the Lower Merion School District to revoke a property tax hike because the district had amassed a $42.5 million surplus during ten fiscal years in which it projected deficits. Instead of adjusting its budgets or crediting taxpayers for the surplus, the district instead sought and received a a tax increase of 4.4 percent for the 2016-2017 school year. To do that, Lower Merion invoked a special exemption under the state's Taxpayer Relief Act, which allowed the district to raise taxes above the statutory maximum of 2.4 percent. Since 2006, the school district reportedly raised property taxes by approximately 53.3 percent. Lower Merion's schools are among Pennsylvania's most highly rated districts; Lower Merion High School was named in U.S. News and World Report's list of the nation's best high schools. The case is Wolk v. School District of Lower Merion (Pa. Commw. Ct., Apr. 20, 2017).
Monday, April 17, 2017
Ninth Circuit Finds School District Must Pay Attorney Costs For Student Formerly In Juvenile Detention
The Ninth Circuit held last week that a school district must pay attorney fees in a suit resolving which state agency bears the responsibility to pay for special education services for students in juvenile detention. In 2013, the Ninth Circuit held in the case that a school district had to pay for education services under under the Individuals with Disabilities Education Act (“IDEA”) for student K.G., who was formerly in juvenile detention. K.G. then sought attorney's fees to recover the costs of the suit. The district court below denied K.G.'s request for attorneys’ fees, finding that he was not a “prevailing party” under the IDEA because his victory—determining which agency would fund the free appropriate public education (FAPE) required by the IDEA—was “technical or de minimis.” The district court further found that K.G.'s argument was the same as the school district's--that the State was responsible for K.G.'s education rather than the school district. The Ninth Circuit rejected both grounds. The circuit court noted that K.G. had to prove that some state agency was responsible for his education, and his presence in the litigation was necessary even though he and the school district shared similar positions. However, the Ninth Circuit remanded part of the case for the district court to determine whether K.G. was entitled to any attorney fees for litigation after his graduation--that was presumably after he had gotten the education due him. The case is Irvine Unified Sch. Dist. v. Cal., No. 14-56457 (9th Cir. Apr. 13, 2017).
D.C. District Court Rules That Student Painting Of Ferguson Shooting Was Properly Removed From U.S. Capitol Display
The D.C. Circuit denied a congressman's and a high school student's request to restore the student's artwork protesting the police shooting of Michael Brown to an art display at the U.S. Capitol. The federal court concluded that although the student's painting was removed because of its political expression about the Ferguson, Missouri police shooting and subsequent protests, an art display in the Capitol could be deemed government speech over which Congress has editorial control. In 2016, student David Pulphus won a place in the Congressional Art Competition to represent Missouri’s First Congressional District with his painting about the Ferguson police shooting incident. Pulphus's painting was selected to represent Rep. William Clay's district (Clay was a co-plaintiff in this case). But several members of Congress unilaterally and repeatedly took the painting down from the wall, objecting that the painting was “anti-police.” (In the painting, which NPR.org has posted here, a police officer is depicted with a warthog head and is pointing a gun at a young man who has a wolf's head and a tail.) Eventually, the Architect of the Capitol (who oversees the student art competition), permanently removed the painting for failing to meet the competition’s content suitability guidelines, which bans artworks that depict a "contemporary political controversy," or is sensationalistic or gruesome. Pulphus claimed that removing his painting was viewpoint discrimination in violation of the First Amendment. The district court agreed that the painting was banned because of its stance, but that because Congress sponsored the competition and each artwork was labelled with the congressperson's name and district and displayed in the Capitol, the art's content would likely to be perceived by the public as government speech. Because Congress maintains editorial control over that speech through the House Office Building Commission (HOBC), which is composed of the Speaker and the majority and minority leaders of the House, the student had no First Amendment right at issue. The court also found that Pulphus could not show sufficient irreparable injury or public interest to warrant a preliminary injunction. The case is Pulphus v. Ayers, No. 2017-0310 (D.C. Apr. 14, 2017).
Tuesday, April 4, 2017
Minnesota Court of Appeals Holds that Education Quality Suit Raises Nonjusticiable Political Question.
In a case of first impression in the Minnesota appellate courts, the state court of appeals recently reversed a trial court's refusal to dismiss to dismiss a class-action lawsuit that claimed that economic and racial segregation led to students being denied their state constitutional right to an adequate education. The Minnesota Court of Appeals found that the suit's claims required the court to define what was an adequate education, which in the court's view presented a nonjusticiable political question. The class action plaintiffs alleged that hyper-segregated schools” throughout Minnesota is a per se violation of the Minnesota State Constitution's Education Clause (article XIII, sec. 1) and that children of color and children in poorer districts receive an inadequate education by "any objective standards." The district court below refused to dismiss the plaintiffs' claims on the merits. In reversing that decision, the court of appeals wrote that the definition of adequate education is a standard specifically assigned to the state legislature and would require the court to make an initial policy decision in an area under legislative control. Citing precedent, the appellate court noted, "we deem judicial review of educational policy inappropriate." The case is Cruz-Guzman v. State, No. A16-1265, 2017 WL 957726 (Minn. Ct. App. Mar. 13, 2017).
Thursday, March 30, 2017
The State of Illinois responded last week to the Chicago Board of Education's funding lawsuit, asking the state court to dismiss the Board's claims that the state's education budget maintains a "separate and unequal" system for funding school districts and pension obligations. In its dismissal motion, the State argued that the Chicago Public Schools (CPS) will not suffer irreparable injury from its budget shortfall after Gov. Bruce Rauner vetoed a bill that would have sent $215 million to CPS to cover its pension obligations that will come due this summer. The Governor reportedly rejected the bill because it did not include pension reforms that the Governor wanted. The State further argued in its dismissal motion that the state's civil rights law creates no grounds either to force the governor to sign a funding bill or to provide money that is not previously established by law. The lawsuit was filed by the Board in February on behalf of five African-American and Hispanic families (whose children attended CPS schools), alleging that the Illinois's failure to allocate money equitably to meet CPS's budget violated the state civil rights of minority children in its district (about 90% of CPS' students are minority).The state’s civil rights law provides that “if the burdens of a state policy fall disproportionately on members of particular racial groups, the state must advance a weighty justification.” As grounds, the Board alleged that the legislature allocated about 15% of the state education budget to Chicago, but the city enrolled nearly 20% of Illinois' schoolchildren in 2016. The Board's suit also challenged the state has created an unequal teacher pension system that requires Chicago to spend much more per student on teacher pensions than schools in the rest of the state. That disparity in teacher pension contributions meant that CPS had $9,779 to spend per student, whereas the average non-CPS state school district had $12,174 to spend per student. Without the $215 million, the Chicago Board will cut schools' budgets mid-year and has told the court that it may have to end the school year three weeks early and cancel summer school. (To avoid such measures, Gov. Rauner has proposed dealing with CPS' budget and its pension obligations in separate legislation.) The lawsuit is before the Circuit Court of Cook County Chancery Division.
Tuesday, March 28, 2017
Washington State's University Place School District settled a lawsuit filed by three black students who alleged racial discrimination by teachers at Curtis High School, reportedly for $450,000. The student-plaintiffs in the suit alleged in 2015 that they were subjected to racial name-calling by students and discriminatory grading practices and other forms of harassment by teachers and staff. In one instance, one of the students was called racial epithets in the school's hallway, and when he reported the abuse to teachers, he was told that it "would make him stronger." Another student alleged in the lawsuit that when a teacher gave her home address (during a sign language lesson) and students joked that they might egg the teacher's house, the teacher replied that “no one would do that, except for [the plaintiff], because he’s black.” according to court documents. The district denied the allegations in the suit and pointed out that the teacher who made the remark about the black student has resigned from the school. Tacoma's News Tribune reports that just under 10 percent of Curtis High's 1,400 students are black.
Wednesday, November 2, 2016
The Maryland court case of an elementary school student who was suspended for chewing a Pop-Tart into a gun shape was reportedly settled last week. See this blog's stories here and here. The school's assistant principal suspended the student, then seven years old, for shaping the Pop-Tart into what a teacher interpreted as a gun. He was suspended for two days. According to the Annapolis Patch last week, Anne Arundel County Public Schools have reportedly settled with the student's parents to remove the suspension from their son's record, even though a judge ruled this year that school officials were within their rights to suspend him. The story is here.
Thursday, September 29, 2016
At Education Week's School Law Blog, Mark Walsh covers the U.S. Supreme Court's cert grant today in Endrew F. v. Douglas County School District RE-1 (No. 15-827), in which the Court may resolve a circuit split on the issue of what level of educational benefit must a child receive under his or her individualized education program, or IEP, for a school district to have provided a free appropriate public education under the Individuals with Disabilities Education Act? Walsh's article is below:
The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year in the case of a Colorado child with autism that because the child's public school IEP had provided him with "some educational benefit," the Douglas County district had provided a "free, appropriate public education" under the IDEA. The 10th Circuit court thus rejected a private school reimbursement for the parents of the boy identified as Endrew F. after the parents had pulled him from public school amid the dispute over his 5th grade IEP.
In an August 2015 decision, the 10th Circuit court panel acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a "meaningful educational benefit." But the 10th Circuit, agreeing with a lower court in Endrew F.'s case, said that a key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, merely requires an IEP to provide "some educational benefit."
"The courts of appeals are in disarray over the level of educational benefit that school districts must confer on children with disabilities to provide them with a free appropriate public education under the IDEA," says the appeal filed on behalf of Endrew F. and his parents by his Denver lawyers and the Supreme Court Litigation Clinic at Stanford Law School. "This court should use this case—which cleanly presents the legal issue on a well-developed set of facts—to resolve the conflict over this important question."
In May, the Supreme Court invited the U.S. solicitor general to file a brief expressing the views of the Obama administration. On Aug. 18, Acting Solicitor General Ian H. Gershengorn filed a brief that urged the justices to take up the appeal.
"This court should grant certiorari and overturn the 10th Circuit's erroneous holding that states must provide children with disabilities educational benefits that are 'merely ... more than de minimis' in order to comply with the IDEA," the brief states. "The 10th Circuit's approach is not consistent with the text, structure, or purpose of the IDEA; it conflicts with important aspects of this court's decision in ... Rowley, and it has the effect of depriving children with disabilities of the benefits Congress has granted them by law."
Lawyers for the Douglas County district argued in briefs, including one filed in response to the solicitor general's recommendation to grant review, that the asserted split among the federal appeals courts is "shallow" and that only the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, "has consistently applied a purportedly more demanding 'meaningful benefit' standard."
"The government contends that the IDEA demands something 'more robust'" than the "some benefit" standard, says the school district brief. "The question is whether a state has satisfied its substantive obligations if the IEP it offers provides a child more than a de minimis educational benefit. Under Rowley the answer is yes."
Despite the district's arguments, the Supreme Court on Sept. 29 granted review, one of eight cases the justices added to their docket just before the formal start of their new term on Oct. 3.
The Endrew F. case is likely to be argued sometime early next year.
Monday, September 26, 2016
Lawrence Hurly reported for Reuters yesterday that the U.S. Supreme Court may be reluctant to take up Gloucester Co. Sch. Bd. v. G.G., the case of 17-year-old transgender student Gavin Grimm, who was barred by his school from using the the boys’ restroom at school, despite him having a state ID that identifies him as male. This upcoming school year, Grimm will have to use a separate single-stall restroom. On August 3, the Supreme Court granted an emergency stay recalling the mandate of the Fourth Circuit Court of Appeals that would have allowed Grimm to use a bathroom congruent with his gender identity. The stay reinstated the the Eastern District of Virginia's June 2016 preliminary injunction order denying Grimm's request to use the boys’ restroom. Hurly predicts that the short-handed Supreme Court will be cautious about granting certiorari, particularly because the decision could end in a 4-4 deadlock and because the Fourth Circuit's ruling was the first decision of its kind in the federal circuits. Hurly's article is here.
Wednesday, September 21, 2016
First Circuit Holds That Voting District Does Not Have To Be Redrawn In "Prison Gerrymandering" Case
The U.S. Circuit Court of Appeals for the First Circuit ruled Tuesday that a city did not have to redraw its district lines for school committee and city council seats when one ward of the city included prisoners in a state correctional institution, many of whom are barred from voting. In overturning a federal district court ruling earlier this year holding that Cranston, R.I.'s inclusion of a prison population in a voting district violated the Equal Protection Clause, the First Circuit instead relied on the Supreme Court's decision in Evenwel v. Abbott (2016), which held that the "one person, one vote" principle allows a state to design its legislative districts based on total population. The First Circuit case arose when plaintiffs represented by the American Civil Liberties Union sued the City of Cranston when it decided to count the more than three thousand inmates at the state Adult Correctional Institution in Cranston's Ward 6. The inmates accounted for a quarter of Ward 6’s total population even though under state law, the prisoners were actually residents of their home counties for most other legal purposes, including voting, for those serving a non-felony sentence. The plaintiffs contended that including the prison population inflated Ward 6 constituents' voting power to the level as the other wards even though Ward 6 had fewer residents who had a political interest in local elections. The First Circuit rejected those arguments, noting the that the Supreme Court has deferred to state legislative decisions that included non-voters, such as transients or persons denied the vote, as part of districts' population "so long as the apportionment scheme does not involve invidious discrimination." The case is Davidson v. City of Cranston, No. 16-1692 (1st. Cir. Sept. 21, 2016).
Monday, September 12, 2016
Second Circuit Dismisses Student-Plaintiffs' Suit That Claimed Taxpayer Money Was Diverted To Fund Private Religious Schools
A divided Second Circuit held today that student-plaintiffs in the East Ramapo (N.Y.) School District lacked standing to challenge the alleged diversion of public funds to religious institutions in their district. In Montesa, et al. v. Schwartz, et al., taxpayer and student plaintiffs alleged that school board members of the East Ramapo School District had an under the table agreement to allow Orthodox/Hasidic Jewish parents to invoke the Individuals with Disabilities Education Act to have their children placed in largely Hasidic schools. The parents did this, the plaintiffs claimed, by simply writing a letter to the school board disagreeing with the placement of their children in the public schools. School board members would then pass a private placement resolution in lieu of an Impartial Hearing under the IDEA and reimburse the parents for the private religious school tuition. One problem with this, the plaintiffs argued, was that the school district would not be entitled to federal or state reimbursement for these students because the settlements occurred before an Impartial Hearing under the IDEA. The plaintiffs alleged that the school board defendants thus diverted funds away from the district's public schools and into Hasidic religious institutions. In today's decision, the Second Circuit held that the student‐plaintiffs lacked standing to assert an Establishment Clause claim because they were only indirectly affected by the conduct alleged to violate the Establishment Clause. The circuit court, which upheld the district court ruling, found that the students were not directly exposed "to the unconstitutional establishment of religion.” A taxpayer suit on similar grounds is proceeding in federal district court. The opinion is here.
Wednesday, September 7, 2016
Third Circuit Affirms Denial Of Qualified Immunity For Teacher Who Allowed Kindergartner To Be Taken From Class By Unauthorized Adult
The Third Circuit has affirmed a district court’s denial of qualified immunity for a schoolteacher who allowed a kindergartner to leave his class with an adult who failed to identify herself and who later sexually abused the student. In L.R. v. Philadelphia School District, No. 14-4640 (3rd Cir. Sept. 7, 2016), a teacher in the Philadelphia School District allowed a kindergarten student (called “Jane” in the opinion) to leave his classroom with an adult who failed to identify herself. The adult sexually assaulted the child later that day. In the early hours of the next morning, a sanitation worker found the child in a playground after hearing her cries. The child’s parent sued the teacher, who claimed qualified immunity. The Third Circuit acknowledged that teachers are often shielded by the doctrine of qualified immunity, but that this case was different because state action created the danger to the plaintiff. First, the court applied a state-created danger exception to the general rule that states have no duty under the due process clause to protect its citizens from private harm. The court noted that this was not simply a case of the school official’s failure to intervene to prevent an unauthorized person from removing a child from school. It was instead a school official allowing a stranger to remove the child from a safe place—the kindergarten class—to an unsafe one:
The setting here is a typical kindergarten classroom. Children in this setting are closely supervised by their teacher. Their freedom of movement is restricted. Indeed, they are not likely to use the bathroom without permission, much less wander unattended from the classroom. In the classroom, the teacher acts as the gatekeeper for very young children who are unable to make reasoned decisions about when and with whom to leave the classroom. Viewed in this light, Jane was safe in her classroom unless and until her teacher, Littlejohn, permitted her to leave.
The court also found that “the risk of harm in releasing a five-year-old child to an unidentified, unverified adult is “so obvious” as to rise to the level of deliberate indifference,” the appropriate standard when an official is not under intense time pressure to make a decision with limited facts. In this case, the teacher asked the adult for identification and documentation that she was authorized to remove Jane, but nevertheless allowed Jane to be taken without the requested verification. The circuit court then turned to whether Jane’s right to be free from “unjustified intrusions on personal security” was clearly established at the time of the teacher’s actions. The court found that sufficiently analogous cases should have placed school officials on notice that it was unlawful to take a helpless child out of a safe environment and expose her to obvious danger by allowing her to go with an unknown person. The case is here.
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.