Education Law Prof Blog

Pa. Supreme Court: District's Policy to Appeal Tax Assessments of Apartment Complexes Instead of Single-Family Homes Violates the State Constitution

The Pennsylvania Supreme Court recently held that commercial property owners stated a valid claim that school districts' decision to selectively appeal only commercial property assessments, such as apartment complexes, while choosing not to appeal the assessments of other types of property, such as  single-family residential homes, violated the state constitution's tax uniformity clause (Pa. Const. art. VIII, §1). The state supreme court reversed the dismissal of the commercial property owners' complaint and remanded the case for further proceedings. In Valley Forge Towers v. Upper Merion SD, No. 49 MAP 2016 (Pa. Jul. 5, 2017), commercial property owners sued the Upper Merion School District when the district, in appealing the value of under-assessed property, targeted apartment complexes because commercial property would produce more tax-revenue than under-assessed single-family homes. The district also acknowledged that it wished to avoid upsetting parents (and potential voters) by appealing single-family home assessments, even though eighty percent of the district's single-family homes were under-assesssed. The commercial property owners' complaint was dismissed on a demurrer. On appeal, the Pennsylvania Supreme Court noted that the state constitution's tax uniformity clause incorporates the same equal protection analysis as the Equal Protection Clause of the United States Constitution. The court rejected the school district's argument, however, that it needed only to provide a rational basis for the deliberate and selective discrimination between commercial and single-family properties. The supreme court held that the district's appeal policy violated the Uniformity Clause, which "prohibits disparate treatment of sub-classifications of property in order to avoid political accountability employed by a taxing district lies within its discretion." Because the commercial property owners sufficiently alleged such discrimination, the court found that their complaint set forth a valid claim that the school district’s appeal policy violated the Uniformity Clause. Valley Forge Towers v. Upper Merion SD, No. 49 MAP 2016 (Pa. Jul. 5, 2017) is available here.

Fifth Circuit Holds That Recitation of Mexican Pledge In Spanish Class Not Compelled Student Speech

The Fifth Circuit held last week that requiring that students perform the Mexican Pledge of Allegiance as an assignment for a Spanish language class, and the school's actions afterwards, did not violate the First Amendment. In Brinsdon v. McAllen Independent Sch. Dist., 15-40160 (5th Cir. 2017), a teacher required students to memorize and recite in Spanish the Mexican Pledge of Allegiance. A student, Brinsdon, objected to reciting the Mexican Pledge because she felt pledging allegiance to a foreign country was wrong. The student was allowed to substitute an alternative writing assignment, for which she received a "C" grade.  Because students who did the recited the Mexican Pledge received "A"s, Brinsdon suspected that her grade was retaliatory. Brinsdon surreptitiously filmed her fellow students reciting the Mexican pledge in class, using a spy pen given to her by her father. The father then sent the filmed footage to media outlet The Blaze, which in turn posted the recording to YouTube. Brinsdon and her family were subsequently interviewed by Fox News and Glenn Beck, which brought national publicity to the school, much of it hostile. She was removed from Spanish class for the rest of the semester and completed the class assignments in the school office. Brinsdon, who graduated in 2014, filed suit in the Southern District of Texas, claiming that her First Amendment rights were violated when she was compelled to recite the pledge and that she was retaliated against when she was removed from class and that she suffered disparate treatment under the Equal Protection Clause when she was removed from class. The federal district court below allowed the equal protection and compelled speech claims to proceed to trial and later found granted the district a judgment as a matter of law. On appeal, the Fifth Circuit held that the school officials were entitled to qualified immunity as they did not ignore "clearly established law when compelling a non-operative recitation of the Mexican pledge." The court distinguished this case from West Virginia State Bd. of Educ. v. Barnette (1943), which rejected state law requiring daily recitation of the U.S. Pledge of Allegiance in class, by noting that Brinsdon's assignment did not require allegiance to Mexico or suppressed her ability to express her beliefs by adopting those of others. Simply put, the circuit court relied on Tinker v. Des Moines (1969) to permit schools to require recitation of alternative beliefs for "legitimate pedagogical reasons." Turning to the retaliation claims, the court determined that the timeline of Brinsdon's removal was unclear on the record, but the reason for the underlying disruption of school activities was not Brinsdon's media appearances, but the publication of the unauthorized video of the students, which is not a protected First Amendment right. The court also found that the teacher and principal were entitled to qualified immunity. The case is available here.

Eighth Circuit Holds That Private School Student with Special Needs Entitled to FAPE Under Minnesota Law

Although the Individuals with Disabilities Education Act (IDEA) does not guarantee a right to special education services for private school students with disabilities, the Eighth Circuit recently held that Minnesota law does require public school districts to provide a free appropriate public education (FAPE) for private school students, as well as the right to dispute the provisions of special education services in an impartial due process hearing. In Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017),  R.M.M., a student who attended a Catholic private school in Minneapolis, received an evaluation from the Minneapolis Public Schools (Special School District No. 1), in the fifth grade for special education services in reading, written expression, and math. After the Catholic school informed her parents that it could not provide the special education services that the student needed, the student transferred to Minneapolis Public Schools (MPS). The student sued MPS for failing to provide appropriate special education services while she was enrolled in private school. The Administrative Law Judge concluded that R.M.M. had been denied a FAPE; the federal district court dismissed the FAPE claims again the school system, but held that Minnesota law granted private school students the right to under the state law counterpart to FAPE. The district court also ruled for R.M.M. on the issue of whether private school students in Minnesota are entitled to a due process hearing to dispute whether they have received a FAPE. On MPS' appeal to the Eighth Circuit, the appeals court held that Minnesota's provision went beyond the minimum requirements of the IDEA, and when comparing Minnesota's statute with language in IDEA, the Eighth Circuit found that the Minnesota legislature intended to provide private students the right to a FAPE, even though the statute does not use the term. The applicable statute, known as the shared-time statute, provides that “No resident of a district who is eligible for special instruction and services under this section may be denied instruction and service on a shared time basis . . . because of attending a nonpublic school.” Id. § 125A.18. The appellate court also affirmed the district court on the issue of R.M.M.'s parents' ability to to an impartial due process hearing under state law. The parents did have such a right under Minnesota law, the court held, rejecting MPS' argument that only the school district could pursue such remedies when a child was enrolled in a non-public school. The case, Special School District No. 1 v. R.M.M., 16-1601 (8th Cir. June 29, 2017), is available here.

NY Court of Appeals Limits Plaintiffs' Claims in School Funding Suit

On Tuesday, the New York Court of Appeals dismissed most of the claims in two lawsuits that alleged that the state has failed to adequately fund New York City public schools and thus violated the state constitution's education article's requirement to provide schoolchildren with a "sound basic education." The suits' plaintiffs contended that NYC schools received millions less than they were entitled after the legislature failed to fully fund the education formula it devised to comply with court orders in the long-standing equity suit, Campaign for Fiscal Equity, Inc. v State of New York. New York state froze education funding in the 2008 recession and reduced it thereafter, creating a nearly two billion dollar education funding deficit since the freeze. The plaintiffs in one of the suits, New Yorkers for Students' Educational Rights (NYSER), an educational advocacy group, sought relief for schoolchildren across the state. NYSER's funding adequacy claim survived, but the Court of Appeals limited the claim to NYC and Syracuse, where the plaintiffs had provided specific allegations of a causal link between budget cuts and education impact. The other plaintiffs, a coalition of parents (Aristy-Farer), argued that New York's withholding of $290 million in 2012 to the NYC school district as a penalty when the city failed to comply with state law requiring districts to conduct performance reviews of teachers and administrators violated the education article. The Court of Appeals held that this allegation did not state a cognizable claim as the education article does not require a particular amount of state funding. The remainder of the Aristy-Farer plaintiffs' claims were found to be inadequately pled as there was no specific allegation linking the failure to fund public schools with deficiencies in the city's education program. The Court of Appeals affirmed the Appellate Division's decision to allow two of NYSER's claims--one challenging the adequacy of the State's education funding accountability mechanisms and another the inadequate funding of NYC and Syracuse's school districts--to proceed. The decision in Aristy-Farer v. State (NY Ct. of App., June 27, 2017) available at FindLaw here.

Sheriff Sued for Searching 900 Students at Georgia High School

A federal class action suit has been filed alleging that Worth County (Ga.) Sheriff’s Office employees conducted a suspicionless search of 900 students at Worth County High School on April 14, 2017. Acting on information that a "target list" of thirteen students at the high school possessed drugs, Worth Co. Sheriff John Hobby placed the high school on "lockdown" for four hours while deputies conducted body searches, including feeling inside students' clothing and underwear. Although only three of the students on the target list were at school the day of the search and those students were brought to the administrative offices upon the Sheriff's arrival, the sheriffs searched all students, had dogs sniff their cars and belongings, and temporarily seized their cellphones during the four-hour search. Several students alleged that the deputies touched the students' genitalia while they were being searched. No illegal controlled substances or drug paraphernalia were discovered during the mass search. Apparently, neither the school administrators nor the assigned school resource officer (who was away from the school at the time of the search) knew of or agreed to the search. The plaintiffs allege that the Sheriff violated clearly established law by conducted a mass, physically intrusive searches without individualized suspicion. Crystal Redd, an attorney at the Southern Center for Human Rights said in a statement, “[The student-plaintiff] is going to court to hold the Sheriff accountable for treating public school children like suspected criminals.”A copy of the complaint, K.A. v. Hobby (M.D. Ga., filed Jun. 1, 2017) filed by the Southern Center for Human Rights is here.

School District Loses Appeal of Tax Increase Injunction After Over-projecting Deficits

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).

 

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).

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).

Illinois Moves To Dismiss Chicago Board of Education's Funding Lawsuit Under State Civil Rights Law

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.

Washington State School District Settles Race Discrimination Suit

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.

Pop-Tart School Suspension Case Reportedly Settled

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.

U.S. Supreme Court to Weigh Level of Benefit Required by Special Education Law by Mark Walsh

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.

Reuters: Supreme Court May Wait To Decide Transgender School Bathroom Cases

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.

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).

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.

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.

Pennsylvania School District Ordered To Allow Refugee Students To Attend Local High School

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.

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.

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).