Tuesday, January 26, 2016
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.
Thursday, December 3, 2015
SC Attorney General Files Amicus Brief in Transgender Student's Appeal to Use Boys' Bathroom at School
In a suit that we have been following here and here, South Carolina Attorney General Alan Wilson has filed an amicus brief in G.G. v. Gloucester County School Board. The suit’s plaintiff, Gavin Grimm, is a transgender student who sued the school board about its policy that prohibited him from using the boys’ bathroom at Gloucester High School (VA). In September, the Eastern District of Virginia dismissed Grimm’s claim under Title IX. In the appeal to the Fourth Circuit, Attorney General Wilson filed an amicus brief on behalf of Arizona, Mississippi, South Carolina, West Virginia, and the Governors of Maine and North Carolina. The amici’s argument tracks the district court’s finding that Congress defines “sex” in Title IX as biological sex, not gender identity. Amici argue that that if “sex” means gender at birth, Grimm has access to girls' bathrooms and single-stall restrooms that are comparable to ones provided for boys, and thus, Grimm has no claim under Title IX. Although Grimm's driver's license identifies him as male, amici argue that because "G.G. has two X chromosomes," "female sexual and reproductive organs, and lacks the male sexual and reproductive organs," he should be considered biologically female and therefore was properly prohibited from using his school’s bathrooms designated for males. The Attorney General's brief can be viewed here.
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).
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).
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.
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.
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).
Friday, October 9, 2015
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.
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
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.
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.
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).
Wednesday, September 16, 2015
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.
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.
Tuesday, July 28, 2015
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.
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.
Wednesday, July 15, 2015
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).
Thursday, July 2, 2015
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.