Tuesday, April 19, 2016
The North Carolina Supreme Court has overturned a 2013 law that repealed teacher tenure, holding that the repeal violated the Contract Clause of the United States Constitution. For over forty years, North Carolina's teachers were tenured under the Career Status Law, which set the rules for employing, retaining, and firing of public school teachers. In 2013, North Carolina's General Assembly passed a law that revoked the Career Status Law, allowing school boards to decide not to renew a teacher’s contract for any reason except for a few reasons otherwise prohibited by state law. The North Carolina Association of Educators, Inc. and a handful of tenured teachers challenged the law, arguing that the law was a taking because it applied retroactively to previously tenured teachers and prospectively to probationary teachers who were already on track to tenured status. The state supreme court found that the Career Status Law was an implied term of the teachers' employment contracts upon which they relied in accepting lower pay for the anticipated benefits of job security. That security was removed by revoking the Career Status Law and replacing it with a new system that allowed local school boards and teachers to enter into annual term contracts. The court noted that the State's justification for the passing the law, to alleviate difficulties in dismissing ineffective teachers, was unsupported by any evidence that such a problem existed. The court concluded that the State could not show that it had a legitimate purpose, or that if it were legitimate, retroactively ending teacher tenure was nevertheless an unnecessary and unreasonable step to achieve that purpose. The case, North Carolina Association of Educators, Inc. (NCAE) v. North Carolina, No. 228A15 (N.C. April 15, 2016), is available here.
Wednesday, April 13, 2016
Fourth Circuit Rejects Deliberate Indifference Suit Based On Disability Harassment; N.H. Supreme Court Reinstates Counselor Who Sued To Protect A Student's Privacy
Fourth Circuit Applies Davis v. Monroe County To Student-on-Student Harassment Claims Based on Disability
The Fourth Circuit recently affirmed a summary judgment finding against a disabled student, S.B., who sued his school board claiming that officials had been deliberately indifferent to bullying incidents against him. The circuit court also affirmed a summary judgment ruling against S.B.'s stepfather's retaliation claim alleging that the stepfather was fired as a teacher and athletic director at the same school for advocating on S.B.'s behalf. The Fourth Circuit found that the district court correctly determined that S.B. has provided no evidence that the school board acted with acted with deliberate indifference about S.B.'s disability to hold it liable for bullying or that his stepfather's advocacy for him was related to an adverse employment action against him. While school officials were aware that S.B. was being bullied and took steps to protect S.B., there was no evidence that the harassment towards S.B. was on account of his disability or that the board failed to act when it should have because of disability discrimination against S.B. Applying the Supreme Court's analysis in Davis v. v. Monroe County Board of Education (1999), a Title IX student-on-student sexual harassment case, the Fourth Circuit held that the school board did not have adequate notice that S.B. was being bullied by other students because of his disability, and thus it was not deliberately indifference to the harassment. The case is SB v. Board of Education of Harford, No. 15-1474 (4th Cir. Apr. 8, 2016).
New Hampshire Supreme Court Reinstates Guidance Counselor Who Was Terminated After Seeking to Protect The Privacy of Student Seeking An Abortion
The New Hampshire Supreme Court ordered the reinstatement of a school guidance counselor who was terminated after she sued the principal of her school when he decided to reveal to a student's parent that the student was seeking an abortion. Farmington guidance counselor Demetria McKaig was told by a 15-year-old student that the student planned to get an abortion without her parents' knowledge. McKaig in turn reported the information to the principal, who announced that he planned to call the student's mother. McKaig, believing that state privacy laws prevented the school from informing the student's mother about the planned abortion, contacted the ACLU and with the organization's help, filed a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting the student's mother. The TRO was granted against the principal. McKaig was terminated four months later on the grounds of insubordination, breach of student confidentiality (for reporting the case to the ACLU), and neglect of duties. Ultimately, only the first two grounds were relied on form McKaig's nonrenewal of her contract. The New Hampshire Supreme Court upheld the state board's determination that McKaig was not insubordinate to the principal. The high court then ruled that McKaig's seeking a TRO was justifiable under an emergency exception to the Federal Educational Rights and Privacy Act (FERPA), which was incorporated into the state's education policies by reference. The case is Appeal of Farmington School District, No. 2015-0032 (N.H. 2016).
Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
Monday, March 21, 2016
Securing legal representation is critical for private enforcement of constitutional and statutory rights, and thus rulings that restrict attorneys' fees in such cases will impact rights enforcement. The Fifth Circuit recently released a decision holding that obtaining a stay-put order under the Individuals with Disabilities Education Act (IDEA) is not sufficient to qualify a litigant as a “prevailing party" who is entitled to attorneys' fees. The Fifth Circuit now joins the Third and Seventh Circuits in holding that stay-put orders are interim in nature and because such orders do not address the merits, they do not entitle plaintiffs to attorney fee awards. In the case, Tina M. v. St. Tammany Parish School Board, the plaintiff's son, S.M., a student with a disability under the IDEA, was involved in an off-campus incident that prompted his school to propose an Individualized Education Program in which S.M. would receive at-home tutoring. S. M.’s mother disagreed with this proposal and refused to consent to the IEP change. At a due process proceeding, the Administrative Law Judge granted a stay-put order for S.M. to remain in school pending a decision on the merits. After that order, the parties reached a settlement through mediation, and the plaintiffs moved to terminate the pending administrative hearing on the merits. The ALJ terminated the matter and never reached the merits of the plaintiffs’ claims. The plaintiffs then sought attorneys' fees in the Eastern District of Louisiana under the IDEA's fee shifting provision, 20 U.S.C. § 1415(i)(3). Analogizing the ALJ's stay-put order to a successful preliminary injunction, the district court found that the plaintiffs were the prevailing party for purposes of obtaining attorneys’ fees under the IDEA. The Fifth Circuit reversed. Under section 1415(j) of the IDEA, the circuit court noted, a court deciding a stay-put request simply determines a child’s placement and enters an order maintaining that placement. The IDEA requires an automatic stay in such cases with no merits component to the finding, unlike a preliminary injunction. The stay-put order also did not permanently alter the legal relationship of the parties so that the plaintiffs could be found to have prevailed. “Rather,” the court stated, “it merely provided that S. M. could continue with his prior educational program until a decision on the merits was made.” While the court nodded to the importance of maintaining a child’s placement during due process proceedings, the interim relief of the stay-put order was not merits-based, and thus ineligible for attorneys’ fees. The case can be found at Tina M. v. St. Tammany Parish School Board, No. 1530220 (5th Cir. Feb. 23, 2015).
Friday, March 11, 2016
We have been following the litigation challenging Nevada's school voucher law as violating provisions of the Nevada Constitution (Lopez v. Schwartz), here, here, and here. The litigation challenges Nevada's Senate Bill 302 which permitted parents to apply for educational grants for private schools, financed by deductions from local school districts' budgets. Yesterday, the Nevada Supreme Court denied a mandamus petition in the case, holding that the district court correctly denied the request of a group of parents to intervene in the case as defendants. A Nevada district court ruled in January that S.B. 302 violated state constitutional provisions requiring support for public education and is holding a trial on the merits. The parents sought permissive intervention as defendants, arguing that the January ruling prevented them from applying for vouchers for their children and that their perspective would assist the trial court "in focusing on the effect of the challenged law on its real beneficiaries, parents and children." The Nevada Supreme Court rejected the parents' arguments, finding that the parents shared the same interests and defenses as the main defendant, the Nevada state treasurer, in having S.B. 302 declared constitutional. The Nevada Supreme Court decision denying mandamus in Hairr v. First Jud. Dis. Ct., No. 69580 (Nev. Mar. 10, 2016), can be found here.
Tuesday, March 8, 2016
Last week, a federal district court approved of a plan to consolidate a Mississippi school district that was under a 1970 desegregation order. In 1970, the Starkville Municipal Separate School and the Oktibbeha County School Districts were ordered to end their dual school system and to create a unitary school systems under Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). In 2014, the Mississippi legislature voted to consolidate the two districts, but the Department of Justice objected to the consolidation plan, citing the 1970 desegregation order. In the recent case, Montgomery v. Starkville School District, the Northern District of Mississippi ordered Mississippi and DOJ to fashion a new desegregation order that would govern the consolidated district from the 2016-17 school year until it is declared unitary by the court. In approving the consent order, the court is requiring the district to set attendance zones, adhere to a majority-to-minority transfer policy, and submit various types of proof of the racial and ethnic composition of the schools in the consolidated district. The court also required the state to assign employees in such a way that "thatno school in the district could be considered a “white school” or “black school” by virtue of its administrator, faculty, or staff assignments." The court's opinion in Montgomery v. Starkville School District, No. 1:83-CV-00293-MPM (N.D. Miss. Mar. 3, 2016) can be found here.
Tuesday, January 26, 2016
The U.S. Supreme Court has granted certiorari in Trinity Lutheran Church v. Pauley, No. 15-577 (cert. grant. Jan. 15, 2016), which challenges Missouri's establishment clause barring the grant of public funds to a church. The church sued Missouri officials after being denied a grant of waste management funds to resurface a school playground on church property. On appeal, the Eighth Circuit affirmed the dismissal of the church's suit, citing Missouri's "high wall" against religious entanglement. Cribbed from the Questions Presented summary:
Trinity Lutheran Church applied for Missouri's Scrap Tire Grant Program so that it could provide a safer playground for children who attend its daycare and for neighborhood children who use the playground after hours--a purely secular matter. But the state denied Trinity's application solely because it is a church. The Eighth Circuit affirmed that denial by equating a grant to resurface Trinity's playground using scrap tire material with funding the devotional training of clergy. The Eighth Circuit's decision was not faithful to this Court's ruling in Locke v. Davey, 540 U.S. 712 (2004), and deepened an existing circuit conflict. Three lower courts--two courts of appeals and one state supreme court--interpret Locke as justifying the exclusion of religion from a neutral aid program where no valid Establishment Clause concern exists. In contrast, two courts of appeals remain faithful to Locke and the unique historical concerns on which it relied.
The question presented is “[w]hether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.”
Mark Walsh at The School Law Blog notes the potential impact of this case and another cert. grant, Douglas Cnty. School Dist. v. Taxpayers for Public Education, which if interpreted broadly, may challenge "Blaine amendments" language in several state constitutions.
Illinois Supreme Court Rejects Chicago Teachers' Challenge To "Do Not Hire" Designations In Personnel Files
And speaking of Chicago (from today's post), the Illinois Supreme Court recently held that the Illinois Educational Labor Relations Board (IELRB) did not have to arbitrate grievances over “Do Not Hire” (DNH) designations that were placed in probationary teachers’ personnel files without notice. From the opinion: The Chicago Teachers Union filed a claim with the IELRB that the Board of Education of the City of Chicago (Board) committed an unfair labor practice by refusing to arbitrate grievances over the DNH designations applied to probationary teachers. Probationary teachers were marked DNH when they were nonrenewed twice or who were given an unsatisfactory performance rating, but the school board did not tell teachers when they had a DNH designation in their personnel files. After a hearing, the IELRB found that the school board had violated the Illinois Educational Labor Relations Act, but the state court of appeals reversed that decision. The Illinois Supreme Court affirmed the court of appeals, finding that the grievances conflicted with the school board’s clear statutory authority to refuse to rehire probationary teachers, and the board was not required to arbitrate those grievances under the Labor Relations Act. The opinion has a strong dissent from Justice Kilbride, who argued that the Labor Relations Board’s decision should have given greater administrative defererence, as “the IELRB did not clearly err in finding the DNH grievances in this case arbitrable under  the Act.” The case is Bd. of Educ. of the City of Chicago v. Illinois Educational Labor Relations Board, 2015 IL 118043 (Ill. Dec. 19, 2015).
Wednesday, January 20, 2016
A California district has ruled that a claim alleging that athletic staff at Pepperdine University discriminated against two former students because of their perceived sexual orientation could proceed despite Pepperdine's argument that sexual orientation is not cognizable under Title IX. The district court in Videckis v. Pepperdine University, No. CV 15-00298 (C.D. Cal. Dec. 15, 2015), cited recent Equal Employment Opportunity Commission (EEOC) rulings that sexual orientation discrimination is covered under Title VII. In Videckis, two college athletes allege that the Pepperdine women's basketball staff harassed and discriminated against them because of the staff's belief that plaintiffs were lesbian. The plaintiffs claim that Pepperdine's coaching staff repeatedly asked them about their private sexual behavior and told the players that lesbianism would not be tolerated on the women's basketball team. Plaintiffs also claim that they were refused clearance to play basketball because of the coaching staff's discriminatory views against lesbians. In the order, the district court wrote that "[i]t is impossible to categorically separate "sexual orientation discrimination" from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender." The plaintiffs also allege sex and gender stereotype discrimination and retaliation under Title IX.
Tuesday, December 15, 2015
Federal courts commonly find that live nativity scenes on school grounds violate the First Amendment's Establishment Clause. Consistent with that precedent, the Northern District of Indiana issued a preliminary injunction earlier this month enjoining a Indiana high school from "portraying a nativity scene during a musical Christmas show. Last weekend, the high school in the case, Concord High School, presented its Christmas show with a static nativity scene, a move that the plaintiffs in the case say exploited a loophole in the order to ignore the court's ruling. On December 2, the district court granted the request of the Freedom From Religion Foundation (FFFR) to enjoin "any portrayal of a scene that is composed of live performers as part of [the school's] Christmas" Spectacular shows." The district court agreed with the FFFR that the nativity would "convey a message of endorsement of religion to a reasonable observer," thus failing the requirement of government neutrality towards religion established in Lemon v. Kurtzman, 403 U.S. 602 (1971). The district court rejected the school's arguments adding projected pictures with symbols of Chanukah and Kwanzaa and having the band and choir perform a tribute to each holiday to the Christmas show made the nativity scene simply an educational reference to Christianity rather than an endorsement. The district court noted that although the nativity was on stage for twelve minutes out of the ninety-minute show, (about thirteen percent of the show), the other religions were three to four minutes and had no visual performance as part of the musical. In the school's potential defense for using mannequins in the weekend show, the court's opinion had rejected FFFR's argument that a performed nativity scene would necessarily endorse religion without considering the context in which that performance would take place. The case is Freedom From Religion Found. v. Concord Cmty. Sch., No. 3:15-CV-463 JD, 2015 WL 7776561 (N.D. Ind. Dec. 2, 2015).
Thursday, December 10, 2015
Fifth Circuit Rejects Claims That District Disproportionately Funneled At-Risk Students to Minority Schools
The Fifth Circuit recently decided Lewis v. Ascension Parish Sch. Bd., the contentious school rezoning case that we discussed on the blog last year when it was headed to trial. To recap, plaintiff Darrin Lewis challenged a Louisiana school board's rezoning plan (called Option 2f) that assigned a disproportionate number of at-risk students to Lewis' children's school, East Ascension High School, the only majority nonwhite and majority at-risk high school in the district. (East Ascension was projected to have 57% at-risk enrollment, more than twice the at-risk enrollment at nearby majority-white schools.) Lewis argued that the board's feeder plan deprived Ascension students of educational opportunities afforded to non-minority students. In its November decision, the Fifth Circuit upheld the district court's judgment for the school board, which concluded that the plan was facially race neutral because Lewis did not make a threshold showing that the redistricting plan treated similarly situated students of different races differently and failed to establish that the plan had a discriminatory effect. The Fifth Circuit focused on Lewis' two primary arguments: that "Option 2f was subject to strict scrutiny (1) because it contains explicit racial classifications, and, alternatively, (2) because its funneling feature was motivated by racial animus and had a disproportionately adverse impact on nonwhite students in the East Ascension feeder zone."
Resolving the first argument, the Fifth Circuit adopted the reasoning of the Third and Sixth Circuits that school zoning plans that assigns students based on their home addresses "is facially race neutral, and the rezoning body’s consideration of demographic data in drawing the relevant geographic boundaries does not amount to making an express classification." In doing so, the Fifth Circuit distinguished Ascension Parish's plan from that would be subject to strict scrutiny, such as the one in Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007), because in Parents Involved, in which officials explicitly considered race and the overall racial makeup of the school when making student assignments. TAlthough the Ascension district considered racial demographics and desired to maintain unitary status through racial balancing, the court concluded that the district's decision was not explicitly based on race and thus was subject to rational basis rather than strict scrutiny review. The circuit court also rejected Lewis' argument that the redistricting plan’s feeder plan was subject to strict scrutiny review because it had both a discriminatory purpose and a discriminatory effect. The court found that Lewis' evidence that the percentage of at-risk students in the East Ascension feeder zone increased after Option 2f was insufficient to show either discriminatory purpose or effect. Lewis v. Ascension Parish Sch. Bd., No. 15-30030 (5th Cir. Nov. 17, 2015) is here.
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.