In this issue: Attorney-Client • First Amendment • Individuals With Disabilities • Sunshine Law • Student Records • Teacher Nonrenewal • Title IX • Tort Liability — Sovereign Immunity
Federal district court concludes that a school board retains exclusive authority to waive attorney-client privilege. A superintendent cannot waive the board’s attorney-client privilege absent an action empowering the superintendent to do so.
Ingram v. Regano, N.D.Ohio No. 1:19-cv-2926, 2022 U.S. Dist. LEXIS 229994 (Dec. 21, 2022).
https://casetext.com/case/ingram-v-regano-2
Meribethe Ingram was a substitute teacher and volunteer at Lewis Elementary School in the Solon City School District. Beginning in October 2017, Ingram reported being harassed by a male teacher. After taking no initial action, the school’s principal allegedly removed Ingram from the substitute list and told her she was no longer welcome at the school.
On Jan. 8, 2018, Ingram filed a formal complaint of sexual harassment against then-Superintendent Joseph Regano and then-Assistant Superintendent Fred Bolden, who investigated her complaint. On Jan. 29, 2018, Ingram requested that the district return her to the substitute list. At that time, Bolden told Ingram that she could not be allowed to substitute because she was the subject of a pending investigation. Ingram requested a copy of the complaint. The district’s attorney told Ingram that it was an oral complaint, that it was being investigated according to district procedure and that she would receive a disposition and get an opportunity to respond. The attorney provided Ingram with a copy of the district’s anti-harassment policy. Upon review of the policy, Ingram believed that the district had failed to provide her with procedural protections required by the policy, including notice of the nature of the allegations against her, a copy of the administrative guidelines and an opportunity to respond. On Feb. 1, Ingram conveyed these claims to the board’s attorney and the parties began negotiating a possible settlement.
On Feb. 5, 2018, Ingram emailed the attorney a draft settlement agreement and offered to forward a copy to the teacher’s attorney. The district’s attorney responded that she would forward the proposed agreement and that she would review the agreement and reply with comments and proposed changes. On Feb. 15, Ingram followed up with the attorney and expressed her disappointment at the pace of the investigation in her complaint and her treatment throughout the process. She threatened to file a new complaint, based on the district’s failure to follow its anti-harassment policy during its investigation of her harassment complaint, if the parties could not reach a settlement agreement by the following day. On Feb. 16, there was an email exchange between the district’s attorney, Regano and Bolden about the settlement agreement. The attorney sent a revised settlement agreement, pursuant to those emails, to Regano, who forwarded the entire email conversation to the teacher to get his input.
In the matter before the court in this case, Ingram requested an unredacted copy of the forwarded emails. The district defendants argued that the emails were protected by attorney-client privilege and attorney work product and asked that the court quash Ingram’s motion. The district defendants also requested a protective order against enforcement of Ingram’s subpoena for documents and testimony from the teacher. The court ordered the district defendants either to produce the email pursuant to a protective order or to file a supplement that provided a description of the email, and to address the scope of Regano’s duties as superintendent in relation to the email. The district defendants elected the second option.
The court concluded that the emails and proposed settlement were privileged. The documents concerned communications between the district defendants and the attorney about the terms of the proposed settlement, modifications of the proposed settlement made by the attorney, and the attorney’s advice on those modifications. The court examined whether Regano’s action of forwarding the email chain and proposed settlement to the teacher waived the attorney-client privilege for those documents. The district defendants argued that the disclosure to the teacher was necessary for the attorney to draft a final settlement agreement that would be agreeable to all parties involved.
The court noted that the district defendants did not articulate why sharing the attorney’s legal advice to the teacher was for the purpose of facilitating the attorney’s legal advice to the board on the proposed settlement agreement. However, the court concluded that Regano lacked the authority as superintendent to waive the district’s privilege. It found that the school board retained the exclusive authority to waive privilege. While the board could have empowered Regano to waive its privilege, the district defendants argued that Regano was not empowered to do so generally or specifically in respect to the emails in question. The court agreed and granted the district defendants’ motion to quash Ingram’s subpoena for an unredacted copy of the email thread and granted its motion for a protective order for the same material.
Ninth Circuit issues post-Mahanoy decision on off-campus speech and upholds district’s discipline of students related to racist and violent posts toward classmates on private, anonymous Instagram account.
Chen v. Albany Unified School Dist., 56 F.4th 708 (9th Cir.2022).
In one of the first major appellate cases in the area of student First Amendment rights and off-campus speech to be decided after the U.S. Supreme Court’s decision in Mahanoy Area School Dist. v. B.L. ex rel. Levy, 141 S. Ct. 2038 (2021), the Ninth Circuit upheld a district’s discipline of students who engaged in off-campus online bullying behaviors targeting fellow students. The plaintiffs were high school students at Albany High School, a school within the Albany Unified School District in California. One of the plaintiff students, Epple, created a private account on the social networking app Instagram that was separate from his “main” Instagram account and did not identify Epple as the account holder. On the account, Epple shared memes, images and jokes with a limited number of his “close friends.” As this was a private account, Epple had to approve each follow request, and the posts were generally not visible to those who were not approved as followers. He only approved around 13 people to follow the account, one of whom was his co-plaintiff Chen. Not every follower knew the identity of the operator of the account.
Between November 2016 and March 2017, Epple began posting content on the page that was derogatory toward his classmates, which ranged from mocking individuals for wearing braces or glasses or for their weight to more disturbing racist content which depicted violence against Black classmates, including depictions of lynching and noose imagery. Chen contributed to the account by making favorable comments and using racist invective against other commenters, as well as taking and submitting photos of classmates that were used by Epple in making racist posts. Knowledge of the account began spreading around the school and upsetting students, and the account eventually came to the attention of school administrators. One of the administrators determined that the lynching and noose depictions could be construed as threats of violence and contacted law enforcement. Epple and Chen were eventually identified and admitted to their respective roles in maintaining and contributing to the account. The students were suspended and recommended for expulsion for their actions.
In the wake of these events, a number of disruptions took place at school that interrupted instruction. Teachers reported that students wanted to discuss the incident in class and that the account caused disruptions in the curriculum. Multiple students missed instruction due to their being upset or feeling too scared or anxious to attend school. School counselors and mental health providers were “inundated” by students seeking support for their feelings related to the posts. Members of the community organized rallies and protests connected to the Instagram account and the school’s handling of the matter. In one incident, protesters gathered outside the school and punched two students who were identified as followers of the account and were attending a restorative justice session, resulting in one student having a broken nose. The district scheduled expulsion hearings for Chen and Epple. Chen filed suit seeking an injunction on free speech grounds, which was granted. Epple’s hearing went forward, and the board voted to expel him. He thereafter also filed legal action, making free speech arguments similar to those raised by Chen. Other students who were disciplined for their involvement with the account filed suit, and the suits were eventually consolidated into the matter before the court here.
The district court initially found in favor of the district, finding that: (1) the speech had a sufficient nexus to the school; and (2) it was reasonably foreseeable that the speech would reach the school and create a risk of a substantial disruption. Chen, Epple and one other student appealed this finding to the Ninth Circuit.
The Ninth Circuit ultimately upheld the district court and sided with the district, finding that the district appropriately disciplined the students for their speech. The panel first addressed the general authority of the district to regulate this nature of speech. After Tinker, students do enjoy certain First Amendment protections at school; however, the extent of those rights are not co-extensive with the rights of adults in other settings. Student speech may be restricted if “either [1] it might reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities or [2] it collides with the rights of other students to be secure and to be let alone.” The court determined that the speech at issue in the Instagram account met these criteria and would be readily within the purview of what the school could regulate if it occurred under school supervision.
The more difficult issue was whether the off-campus nature of the speech placed it outside the district’s authority to regulate, which was the key issue in Mahanoy. In Mahanoy, the U.S. Supreme Court preserved school districts’ ability to regulate some off-campus speech but did not set out a broad rule. Instead, the Supreme Court set out principles for courts to consider in similar cases: (1) schools do not generally operate in loco parentis when students engage in off-campus speech; (2) granting schools broad authority to regulate off-campus speech would place them in a situation in which they are able to regulate students’ speech 24 hours a day; and (3) schools have an interest in and ought to protect the “marketplace of ideas.” The court ruled against the school in Mahanoy because the student’s speech did not target anyone with vulgar or abusive language and there was a lack of evidence of a substantial disruption to school activities.
After analyzing Mahanoy, the Ninth Circuit determined that it was consistent with its traditional three-pronged approach in deciding off-campus speech cases in which the relevant considerations are (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable that the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school. In applying the test, the court determined that there was a sufficient nexus between the speech and the school to justify the district’s disciplinary action. Despite the fact that Epple created the account so that it was private, it was reasonably foreseeable that it would reach and cause harm at the school, and the court pointed to the fallout that occurred when the contents of the account became widely known at the school. Epple argued that the school’s discipline of his speech was inappropriately content-based and thereby “raised the specter of a heckler’s veto,” effectively creating a parallel between his speech and that of an individual who expresses racist political views that would entitle him to greater protection. The court rejected this, noting that the posts did become widely known and had the impact of creating a substantial disruption to school activities and that the offensive nature of the speech does not immunize the speech from regulation. The court rejected the notion that Epple was espousing an overarching social or political view; rather, he was making offensive jokes and insults at classmates. The court also determined that even though Chen’s involvement was more minimal, there was a sufficient nexus to discipline his conduct as well. The court likewise dismissed Epple’s and Chen’s state law claims and claims related to due process during the disciplinary hearings.
Readers are reminded that the decision does not have binding precedential authority in Ohio, but it does serve as a useful illustration as to the potential impact of Mahanoy in the development of First Amendment jurisprudence related to off-campus speech.
Ninth circuit reverses summary judgment in First Amendment retaliation case where principal threatens discipline after teacher refuses to remove MAGA hat.
Dodge v. Evergreen School Dist. #114, 56 F.4th 767 (9th Cir.2022).
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/12/29/21-35400.pdf
Prior to the start of the 2019-20 school year, Eric Dodge, a teacher in the Evergreen School District #114 in Washington, attended a district cultural sensitivity and racial bias training and brought with him his Make America Great Again (MAGA) hat. Dodge wore his MAGA hat up to the front doors of the school and then took it off when he entered the building. During the training, Dodge sat near the back of the room and placed his hat either on the table in front of him or on top of his backpack; he did not wear his hat during the training. The professor leading the training saw Dodge’s hat and complained to the principal after the training that she felt intimidated and traumatized. The principal also learned that Dodge’s hat upset a few teachers who attended the training. His principal considered the hat inappropriate and told Dodge at the end of the first day that he needed to exercise “better judgment.”
The next day, Dodge attended another teacher training held by the district. He again wore his MAGA hat before entering the building and took it off while he was inside. When the training concluded, the principal approached Dodge, called him a racist and a homophobe, and said that he would need to have his union representative present if she had to talk to him about the hat again.
Dodge sued the principal, the chief human resources officer and the district for retaliating against him for engaging in protected political speech in violation of the First Amendment. The district court held that the individual defendants were entitled to qualified immunity and granted summary judgment in their favor. The district also granted summary judgment for the district, concluding that Dodge failed to show a genuine issue of material fact that the district was liable. Dodge appealed.
On appeal, the court affirmed the district court’s grant of summary judgment for the chief human resources officer and the district but reversed and remanded as to the principal. In reviewing Dodge’s First Amendment claim, the court first looked at whether Dodge engaged in protected speech. The court held that Dodge’s speech was his display of Donald Trump’s presidential campaign slogan on a red hat and that the content of this speech was “quintessentially a matter of public concern.” Next, the court reviewed whether Dodge was speaking as a private citizen or a public employee. The court found that Dodge had no official duty to wear the MAGA hat, and it was not required to perform his job. Nor did he wear the hat in school with students. Because Dodge was not taking “advantage of his position to press his particular views upon the impressionable and ‘captive’ minds before him,” but rather was displaying a message on a personal item while attending a teacher-only training, the court concluded that he was engaging in expression as a private citizen, not a public employee. As a result, the court concluded that Dodge was engaged in speech protected by the First Amendment.
Next, the court reviewed whether an adverse employment action occurred for the purposes of First Amendment retaliation. The court held that there were triable issues of fact regarding whether the principal took adverse employment action against Dodge. While the principal’s “bad-mouthing” of Dodge did not constitute an adverse employment action sufficient for a First Amendment retaliation claim, the court held that the principal went beyond criticizing Dodge’s political views when she suggested that disciplinary action could occur if she saw Dodge with his hat again. It is undisputed that Dodge’s MAGA hat motivated her actions.
Finally, the court balanced whether the principal established that she had a legitimate administrative interest in preventing Dodge’s speech that outweighed Dodge’s First Amendment rights. The court found that while some of the training attendees may have been outraged or offended by Dodge’s political expression, there was no evidence of actual or tangible disruption to school operations. Therefore, the principal’s asserted administrative interest in preventing disruption among staff did not outweigh Dodge’s right to free speech. The court found that Dodge presented sufficient evidence to create a triable issue regarding whether the principal violated his constitutional rights and that the district court erred by granting summary judgment to the principal.
In unpublished opinion, Sixth Circuit upholds city’s termination of an EMS worker who made inflammatory and racist Facebook posts about a youth who was shot and killed by police.
Marquardt v. Carlton, 6th Cir. No. 21-3832, 2023 U.S. App. LEXIS 2182 (Jan. 25, 2023).
https://law.justia.com/cases/federal/appellate-courts/ca6/21-3832/21-3832-2023-01-25.html
In an unpublished opinion, the U.S. Court of Appeals for the Sixth Circuit upheld the dismissal of a lawsuit filed by James Marquardt against Nicole Carlton and the city of Cleveland related to Marquardt’s dismissal from his position. Marquardt was an Emergency Management Services (EMS) Captain employed by the city of Cleveland. The underlying incidents were connected to the 2012 shooting of Tamir Rice by police, which triggered significant protest and media attention not only in Cleveland but nationwide. Years later, the controversy was inflamed again after Rice’s family received a $500 bill for ambulance services. In the wake of this controversy, posts appeared on Marquardt’s Facebook page indicating his wish that he had been the one to shoot Rice and making a number of disparaging and racially inflammatory remarks about Rice. The posts were soon after deleted. Marquardt denied making the posts.
After a month-long investigation determined that Marquardt was in fact the author of the posts, his employment was terminated. Carlton noted that Marquardt violated “a host of policies,” as well as EMS's mission statement, pledge to the community and social media policy to the city's civil service commission rules. The termination letter “stated that the posts were inflammatory, caused disruption (emphasizing that Marquardt's co-workers ‘expressed concern for their own welfare and safety’), and cast the EMS division as ‘disrespectful of the tragedy.’" Marquardt filed suit under 42 U.S.C. Sec. 1983 for wrongful termination. He made several claims, but the court here focused on three: (1) that defendants terminated him in retaliation for his protected speech; (2) that the EMS social media policy was facially overbroad, which he asserted entitled him to reinstatement and back pay; and (3) that the city failed to properly train Carlton (Monell claim). The litigation has gone through several appeals and remands, but the district court ultimately ruled against Marquardt on all three counts, applying the Pickering balancing test and determining that the city’s interest as an employer outweighed Marquardt’s free speech interest.
The appeals court rejected Marquardt’s claim and ruled in favor of the city. The court analyzed the retaliation claim, addressing three questions: first, whether Marquardt engaged in protected speech; second, whether his termination would discourage an individual of “ordinary firmness” from engaging in the activity that led to his discipline; and third, whether his protected speech was a “motivating factor” behind his termination. As part of the protected speech analysis, the court pointed to its earlier decision that Marquart’s speech was made as a private citizen speaking on a public concern, and then moved on to the Pickering balancing test. Turning to Marquardt’s First Amendment protection, the court determined that his free speech interest was significant due to the fact that he was commenting on a very public event, though the speech itself was troubling. The court also considered the fact that he was commenting on his own Facebook page during off-work hours, heightening the level of First Amendment protections.
Moving to the city’s interest, the court considered “whether Marquardt’s speech (1) impairs discipline by superiors or harmony among co-workers, (2) has a detrimental impact on close working relationships for which confidence and personal loyalty are necessary, (3) impedes the performance of Marquardt’s duties or interferes with regular operations of the enterprise, or (4) undermines the City’s mission.” The EMS manager Carlton had testified that the posts were likely to cause visceral reactions and protests that threatened to disrupt city services and that the posts undermined the EMS service’s commitment to treat individuals with dignity and respect. The court ultimately ruled that the city’s interest outweighed Marquardt’s free speech interests, noting the need for the city to promote trust in its services and the deleterious impact of an employee using such inflammatory and racist language about a child resident of the city who had been killed. Rejecting Marquardt’s contention that the city had produced no evidence of actual disruption, the threat of future disruption was deemed to be sufficient. This determination resolved the entirety of Marquardt’s claims, and his suit was dismissed.
Readers should note that as an unpublished opinion, the decision’s precedential value in future cases is limited.
Sixth circuit finds that parents did not need to exhaust IDEA’s administrative process before pursuing a classroom eating and chewing ban under ADA.
Doe v. Knox Cty. Bd. of Edn., 56 F.4th 1076 (6th Cir.2023).
https://caselaw.findlaw.com/us-6th-circuit/2142382.html
Jane Doe is a high school student who suffers from a condition called misophonia that makes her hypersensitive to the everyday sounds of eating food and chewing gum. Doe’s parents asked her school to ban students from eating or chewing in her classes. After the district refused to issue a ban, Doe’s parents sued the Knox County Board of Education under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.
While considering their preliminary-injunction motion, the district court flagged a “potential jurisdictional issue” for supplemental briefing: Did Doe’s parents need to seek relief for Doe’s injuries under the Individuals with Disabilities Education Act’s (IDEA) administrative process before they pursued their claims under the ADA and Rehabilitation Act? During that briefing, the school board moved to dismiss the complaint on this exhaustion ground. The district court granted the motion and held that Doe’s parents sought relief for an educational harm that IDEA could remedy. Doe’s parents appealed.
On appeal, Doe’s parents argued two things. First, they argued they did not seek IDEA-available relief and so did not need to exhaust its administrative process before litigating their ADA and Rehabilitation Act claims. The court of appeals agreed, holding that IDEA provides relief only to students who need “specially designed instruction” and that because Doe’s parents’ complaint did not request (or suggest that Doe needed) any instructional changes, it did not need to go through IDEA’s review process. Instead, the court found that the ban was more akin to “a change to the physical school environment — like, say, a request by a wheelchair-bound student for an automatic door opener to enter the classroom, a request by an allergic student for a peanut ban in the classroom, or a request by a diabetic student to use an insulin pump or glucose monitor,” which courts have found fall outside IDEA. As a result, the court found that Doe’s parents did not need to go through IDEA’s review process to attempt to seek the ban under the ADA and Rehabilitation Act.
Second, Doe’s parents argued that the court should grant Doe a preliminary injunction because they likely will succeed on their claims. They argued that they will likely succeed because the ADA and Rehabilitation Act require schools to make “reasonable accommodations” for individuals with disabilities, and they describe their requested eating and chewing ban as “reasonable.” However, the court refused to grant Doe’s request for a preliminary injunction, finding that the cursory briefing on appeal fell short of justifying a preliminary injunction. As a result, the court reversed the district court’s dismissal of the complaint, rejected Doe’s request to grant a preliminary injunction and remanded the case to the district court for further proceedings.
Supreme Court of Ohio holds that when a trial court orders a single injunction for multiple violations of the Open Meetings Act involving the same conduct, it is required to order only one $500 civil forfeiture penalty.
Ames v. Rootstown Twp. Bd. of Trustees, 2022-Ohio-4605.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-4605.pdf
An Ohio citizen filed an action against the Rootstown Township Board of Trustees alleging that the board violated the Open Meetings Act (OMA) on 16 separate occasions in 2015 and 2016. He demanded an injunction to compel the board to comply with OMA and a civil forfeiture and attorney’s fees for each count. The trial court granted summary judgment in favor of the township. The court of appeals affirmed in part and reversed in part. It concluded that the board did not violate OMA at two of the meetings but that it did violate OMA at the remaining 14 meetings. On remand, the trial court granted summary judgment in favor of the citizen on eight violations of OMA in 2016, issued one injunction and ordered the board to pay the citizen one civil forfeiture and $1,000 in attorney fees. It did not address the six violations in 2015.
On appeal, the court affirmed the trial court’s decision to issue one injunction and award one forfeiture. However, it ordered the trial court to issue an injunction or injunctions related to the six violations in 2015 and for a determination of attorney fees and civil forfeitures. On this second remand, the trial court granted summary judgment regarding the six violations in 2015, issued one more injunction and one more civil forfeiture.
The citizen appealed the first remand decision to the Supreme Court of Ohio. He argued that, after a plaintiff has proven violations of OMA by a public body, the duty of the common pleas court was to issue an injunction for each violation proven. In other words, for the eight violations the trial court found in the first remand decision, it should have issued eight injunctions rather than one.
To begin its analysis, the Supreme Court turned to this language in Ohio Revised Code (RC) 121.22(I): “Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.” The statute later provides that, if the court issues an injunction, it “shall order the public body that it enjoins to pay a civil forfeiture of five hundred dollars to the party that sought the injunction.”
The court concluded that, under the terms of these provisions, a trial court faced with multiple violations of OMA is required to issue injunctive relief but has discretion in setting the terms of that relief. If the court is considering multiple violations of OMA based on the same conduct, it can issue a single injunction against that conduct as a remedy. Multiple injunctions, in such a case, will have no greater effect than a single injunction addressing the violations collectively. If the court is considering multiple distinct violations, or violations of multiple provisions, it has the discretion to enjoin each type of violation separately.
Regarding the civil forfeitures, the Supreme Court agreed with the township and concluded that only one civil forfeiture is permitted when one injunction is issued in response to multiple violations of OMA through the same conduct. It concluded that the forfeiture and injunction are tied together in the statute. The court found that issuing one injunction and one forfeiture in such a situation “serves the purposes identified above without creating an incentive for delay and the potential for a windfall.”
The OSBA Legal Assistance Fund joined in an amici curiae brief filed on behalf of OSBA, the Ohio Township Association, the County Commissioners Association of Ohio, the Ohio Municipal League and the Coalition of Large Ohio Urban Townships. The Supreme Court of Ohio agreed with the amici in the brief, which urged the court to take the position argued by the township defendant. This decision will provide significant clarity to public bodies regarding the potential penalties in OMA.
District court concludes that neither FERPA nor Ohio law bar the production of student records relevant to an assault claim filed by a student against two other students, including the records of a deceased student.
Doe v. Ohio Hi-Point School Dist. Bd. of Edn., S.D.Ohio No. 2:20-cv-4798, 2022 U.S. Dist. LEXIS 23 (Dec. 21, 2022).
https://casetext.com/case/doe-v-ohio-hi-point-sch-dist-bd-of-educ-2
Jane Doe, a student at Ohio Hi-Point Career Center, alleged that she was sexually assaulted by two classmates. The student and her parents sued the two students, but also brought claims against the school district, and several school district officials and employees, alleging that they failed to respond appropriately to Doe’s claims. The matter before the court involved the student’s motion to compel discovery regarding the school records of the two students against whom the assault claim was filed. (During the pendency of this case, one of the student defendants (Student 1) died. As a result, Doe’s motion sought documents from the surviving student (Student 2) and from the district.)
Doe asked the court to compel the district and Student 2 to release all records, including disciplinary records, reports, summaries, notes, memoranda, attendance and other records relative to the attendance of both students against whom the assault claim was filed. The court concluded that the documents sought were relevant and proportional to the needs of the case. The district defendants claimed that the Family Educational Rights and Privacy Act (FERPA) and Ohio Revised Code (RC) 3319.321 barred production of the requested records. Student 2 claimed that signing a FERPA release of the record would violate his Fifth Amendment right against self-incrimination.
The court rejected all the defendants’ arguments. Regarding FERPA, the court began by noting that FERPA does not prevent discovery of relevant school records under the Federal Rules of Civil Procedure. The court then concluded that FERPA also does not protect the records of a deceased student who cannot sign a waiver. The court was persuaded by interpretive guidance from the U.S. Department of Education that FERPA protections “lapse or expire upon the death of the student,” although the guidance involved specifically students aged 18 or older and was not binding on the court. The court ordered the district to produce the school records of Student 1 pursuant to Doe’s discovery request.
Regarding the school records of Student 2, the district claimed that FERPA prohibits release of the documents without a signed release from the student. Further, it stated that it did not have the records. The district had provided the records to Student 2’s counsel after the student signed a FERPA waiver for the limited purpose. The court concluded that the representation that the district had provided the records to Student 2’s counsel did not mean it could not produce the records again. The court stated that it was hard to believe that the district did not retain a physical or electronic copy of the records it provided to Student 2’s attorney. It also rejected the district’s argument that FERPA prohibited release of the records in compliance with a judicial order after notifying the student of the impending disclosure.
Regarding RC 3319.321, the court concluded that the district could not rely on the Ohio Supreme Court decision in State ex rel. CNN v. Bellbrook-Sugarcreek Local School as barring the release of Student 1’s records. In State ex rel. CNN, the Supreme Court concluded that RC 3319.321 does not create an exception for the release of records of deceased students. The court in this matter distinguished State ex rel. CNN as applying to public records requests but not to production of records in response to discovery requests.
Because the court compelled the district to produce the records of Student 2, it concluded that the student’s concerns were moot. Student 2 would not be required to sign a waiver regarding the records because the district was compelled by the court to produce the records. The Does clarified that the only records they were seeking were those relevant to this case and that they were not seeking unrelated records.
Ohio court of appeals reverses trial court’s decision upholding teacher’s nonrenewal when three formal observations were not completed and orders reinstatement of teacher with back pay.
Jones v. Kent City School Dist. Bd. of Edn., 2023-Ohio-265.
https://scholar.google.com/scholar_case?case=2568533046708848380&hl=en&as_sdt=6&as_vis=1&oi=scholarr
In April 2019, Shawn Jones entered into a contract to teach at Kent City Schools for the 2019-20 school year. In October 2019, Jones met with the middle school principal and assistant principal after he left the school building without notifying an administrator on six days in October and failed to fulfill his duties on early release and in-service dates. Jones was suspended for three days without pay. In January 2020, Jones again was absent from work and left students unsupervised without properly informing administrators or documenting the absence. District administrators held a meeting with Jones to discuss this behavior and placed Jones on a “full cycle Ohio Teacher Evaluation System [OTES] evaluation.”
In May 2020, the board of education decided not to renew Jones’ teaching contract. Jones appealed the decision of the board to the Portage County Court of Common Pleas, arguing that there was a lack of compliance with evaluation and observation requirements for nonrenewal pursuant to Ohio Revised Code (RC) 3319.111, which required teachers on a limited contract who are being considered for nonrenewal to “participate in a minimum of three formal observations.” The lower court issued a judgment entry affirming nonrenewal in August 2021. Jones appealed, arguing that the trial court abused its discretion. On appeal, Jones argued that the board failed to comply with the statutory evaluation requirements since it completed only two of three required “formal observations.” An evaluation was completed for Jones on Jan. 29, 2020, which consisted of an observation of Jones teaching within the classroom. A second observation was held during a distance learning teaching period on May 1, 2020. On May 15, an observation was conducted of a Google Meets session where the students shared progress on their Google sheets assignment. Jones was not present during this session, as he was on a medical leave and the evaluation consisted of observing the students working on a project Jones had designed. Jones contended this third observation did not comply with the statutory requirements since Jones was not present and a pre- or post-conference with Jones was not held. The board argued that it complied with the requirement to conduct three formal observations, noting that the OTES model required visitation of a class or viewing of a class lesson and observing students complete work is “a critical component of any teacher evaluation or observation.” The board also argued that “pre-conference and post-conference meetings with teachers were not required.”
In reviewing the requirement of “formal observations,” the court found that “while observing the students performing work without teacher supervision may be part of an evaluation, the teacher’s absence prevents a complete evaluation of the teacher’s abilities and may inhibit the purposes of the requirement to conduct a formal observation.” The court also found that the pre- and post-conferences were clearly set forth as part of the process for evaluations outlined in OTES. As a result, the court held that the third formal observation failed to comply with the requirements of OTES and that, by misapplying the law and failing to enforce the requirements for a formal observation, the trial court abused its discretion. The court reversed the trial court’s decision, ordered Jones to be reinstated and remanded the case to the trial court for a determination of the amount of back pay to be awarded to Jones.
During the litigation, the board of education also alleged that both the trial court and the court of appeals lacked jurisdiction over the arguments raised by Jones on appeal because they would require interpretation of the district’s collective bargaining agreement and memorandum of understanding (MOU). In April 2020, the district entered into an MOU with the Kent Education Association to outline the process the district would follow to complete teacher evaluations in 2019-20. However, the court found that the law in place when the collective bargaining agreement was entered did not permit the board to supersede the statutory teacher evaluation requirements. While the law provided some degree of bargaining about the completion and timing of evaluations, it did not provide authority for changing the specific terms of the statutory evaluation procedure, such as the number of observations to be conducted. As a result, since determination of the evaluation procedures was statutory and the application of the law didn’t depend upon a collective bargaining agreement, the courts had jurisdiction to hear the matter.
Eleventh Circuit Court of Appeals rules that a school board’s policy requiring students to use the restroom assigned by biological sex does not violate the Equal Protection Clause of the 14th Amendment or Title IX.
Adams v. School Bd. of St. Johns Cty., 57 F.4th 791 (11th Cir.2022).
https://media.ca11.uscourts.gov/opinions/pub/files/201813592.2.pdf
he Eleventh Circuit Court of Appeals, which comprises Alabama, Georgia and Florida, issued a ruling in a closely watched lawsuit involving the rights of transgender students, finding that a Florida school district did not violate a transgender student’s rights under the U.S. Constitution or Title IX of the Education Amendments of 1972 by requiring transgender students to use the restroom of their sex assigned at birth or a single-occupancy restroom.
St. John’s City School District maintained an “unwritten” policy of students using the restroom that corresponds to their biological sex, a determination based on “various documents,” including the student’s birth certificate. The district did not permit students to update or alter this information in their enrollment documents. In 2015, after a review of its policies regarding LGBTQ students, the district implemented a policy that permitted transgender students to use pronouns consistent with their gender identity and dress in accordance with their identity. The policy further provided those students the opportunity to use sex-neutral bathrooms but did not allow them to use the bathroom that corresponded with their gender identity.
The plaintiff Drew Adams is a transgender male who was a ninth-grade student within the district when the litigation was commenced. Adams was assigned female sex at birth and began transitioning while in middle school. In ninth grade, Adams began using the boys restroom, and this was reported to district administrators by other students. Over the coming years, Adams would take several steps in his transition, including a mastectomy and amending several state documents to reflect his gender identity, including his driver’s license and birth certificate. During the initial phases of the dispute, Adams maintained external “female” genitalia due to his status as a teenager. After his initial efforts to change the district’s policy, Adams commenced a lawsuit under Section 1983 of the Civil Rights Act, challenging the policy under the equal protection clause of the U.S. Constitution and Title XI. The district court ruled in favor of Adams, and the school district appealed. The initial panel affirmed the district court’s decision before the appellate court decided to hear the case en banc.
Adams’s argument was twofold. He argued that the school’s policy was classic facial sex discrimination because it prohibited him from using the bathroom that aligns with his gender identity. He also argued that the school’s policy discriminated against him on the basis of his transgender identity. He argued this violated both the equal protection clause and Title IX. The court rejected this claim, analyzing the constitutional and statutory arguments in turn. In analyzing the constitutional claim, the court applied intermediate scrutiny, the traditional analysis in sex discrimination cases, to the district’s policy, in which the governmental entity must demonstrate “that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” The court found that the policy passed intermediate scrutiny, noting public schools’ role in supervising and protecting students generally and the fact that school officials in this district had attended “LGBT conferences” and adopted the sex-neutral bathroom policy supported by organizations holding those conferences. The court further noted its hesitance to second guess the judgments of school officials in decisions about protecting students.
Student privacy interests and shielding students’ bodies from the opposite sex was determined to be an important government objective. The opinion noted that privacy concerns in restrooms are “heightened” when a member of the opposite sex is present and “heightened yet further” when the restrooms are communal, and it included a discussion about the long history of sex-segregated restrooms in the United States. The court went on to find that the district’s bathroom policy was “substantially related” to this governmental interest. The opinion rejected the district court’s finding that privacy interests were curtailed by the presence of individual stalls in the restroom and noted that the privacy interests extend to the restroom as a whole given the nature of their use. The majority also rejected attempts to characterize its finding as disregarding Adams’s status as a “boy” or a “male,” and defended the use of biological sex as opposed to gender identity as an appropriate basis on which to separate bathroom use. It also pointed to previous opinions that characterized sex as an immutable trait.
The majority also determined that the policy did not constitute discrimination on the basis of Adams’s status as a transgender person, noting that the policy only facially delineated on the basis of biological sex. It rejected Adams’s argument to advance the reasoning of the Supreme Court’s decision in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), noting that that opinion did not address restrooms or locker rooms. It went on to note that the act of classifying on the basis of biological sex does not facially constitute unlawful discrimination on the basis of transgender status and that the bathroom policy does not rely on improper stereotyping. The court characterized Adams’s argument as essentially a “disparate impact” claim on the basis of transgender identity and rejected the claim, stating that there was no evidence the district implemented the policy “because of its impact on transgender students.”
The court likewise rejected Adams’s claim that the district’s restroom policy violated Title IX, noting the Title IX implementing regulations, which explicitly allow for the maintenance of separate living facilities for the sexes. The court found that the district’s policy met this “carve-out.” The court also cited a litany of dictionary definitions of “sex” to buttress its claim that the district’s policy did not constitute improper discrimination. Thus, it rejected the claim that “gender identity” constitutes “sex” for the purposes of Title IX. Lastly, the court found that subjecting the school district to a construction of Title IX that incorporates “gender identity” into the definition of sex discrimination would violate the “clear statement rule,” which requires that when Congress conditions the disbursement of federal money on a state taking a certain action, it must do so unambiguously.
The majority opinion was followed by a number of lengthy dissents and concurrences. Readers should note that this decision does not have precedential value in the state of Ohio, and federal case law in this circuit generally stands in contrast with the Eleventh Circuit’s approach in this case.
Federal district court in West Virginia upholds state’s “Save Women’s Sports Bill” prohibiting transgender girls from participating in girls’ sports.
B.P.J. v. W. Virginia State Bd. of Edn., S.D.W.Va. No. 2:21-cv-00316, 2023 U.S. Dist. LEXIS 1820 (Jan. 5, 2023).
In 2021, West Virginia enacted House Bill (HB) 3293, dubbed the “Save Women’s Sports Bill,” a measure which codified in statute a requirement that participation in gender-segregated school athletics in the state would be based on the athlete’s biological sex at birth. The new statute contained definitions of “sex,” “male” and “female” that were expressly tied to an individual’s reproductive anatomy and expressly rejected considerations of gender identity in making such a determination. The statute went on to require that teams that are coded “female” "shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport."
The plaintiff B.P.J. is a transgender girl who attended public school in Harrison County Schools in West Virginia and was 11 years old at the time this action began. B.P.J. began her transition early in life and began taking puberty blockers at the first sign of puberty due to a professional diagnosis of gender dysphoria. After entering middle school in 2021, B.P.J. attempted to join her school’s girls’ cross-country team. After HB 3293 passed, the school district informed B.P.J. that she would not be permitted to participate. B.P.J. then filed a federal lawsuit seeking an injunction to prevent her exclusion from the team. The suit alleged that her exclusion, and HB 3293 as a whole, violated the equal protection clause of the 14th Amendment and Title IX.
The court denied B.P.J.’s claims and ultimately upheld HB 3293. The court first addressed whether HB 3293 was passed with unconstitutional animus. The court determined that it was not, despite comments by certain members of the legislature. The court noted that animus requires a showing of broad animus throughout the state legislature, which it determined was not present. The court then turned to a discussion about the nature of the case, affirming B.P.J.’s identity as a transgender girl and her right to be treated with respect. It also noted that B.P.J. was not seeking to challenge the entire structure of sex-segregated sports but rather the state’s new definitions of “male,” female” and “sex.”
Turning first to the constitutional claim, the court applied intermediate scrutiny to the state’s athletic classifications based on biological sex. Under intermediate scrutiny, “proponents must show that [the governmental action being challenged] serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” The state was determined to have an important governmental interest in providing equal athletic opportunities for female students. B.P.J. argued that the state’s requirements were not substantially related to this interest and that HB 3293 constitutes an ends-driven definition of biological sex to guarantee a particular outcome. Further, she argued that it bars “girls who are transgender from qualifying as girls for purposes of school sports and thereby categorically exclud[es] them from girls' teams and therefore from school sports altogether." Defendants argued that there was a substantial relationship between HB 3293’s definitions and the governmental interest, pointing to the physical differences between males and females and the perceived athletic advantage that individuals who are assigned male at birth would have over those assigned female.
The court ultimately agreed with the defendants’ arguments related to the substantial relationship. The court noted that while “sex” and “gender” are not synonyms, they are related and that physical differences exist between biological males and females. The court went on to note the natural athletic advantages of the physical characteristics of individuals who are assigned male at birth. Because of this advantage, the court was satisfied that the state’s classifications were substantially related to its interest in maintaining athletic opportunities for female students. Notably, the court rejected B.P.J.’s argument that transgender girls like herself can take puberty blockers, which would abrogate the athletic advantages presented by male puberty. The court noted that not all transgender girls choose to take such medical steps. The court noted that the state could have created a more inclusive policy, but its decision was limited to whether HB 3293 met intermediate scrutiny, and here it did.
The court likewise rejected B.P.J.’s Title IX claim. The court found that B.P.J. was not denied the opportunity to participate in athletics. Rather, she was prohibited from participating on the girls team. She still theoretically had the opportunity to compete in sports. It noted that Title IX itself appears to refer to biological sex when prohibiting discrimination on the basis of sex, and because B.P.J. had the ability to participate in sports, Title IX was not violated.
B.P.J. has appealed the district court’s ruling and sought a stay of the district court’s ruling pending the appeal. On Feb. 7, 2023, the district court issued a memorandum opinion denying the stay.
Second circuit court of appeals affirms dismissal of a complaint against Connecticut policy that allows transgender student athletes to compete on athletic teams consistent with their gender identity.
Soule v. Conn. Assn. of Schools, 57 F.4th 43 (2d Cir.2022).
Since 2013, the Connecticut Interscholastic Athletic Conference (CIAC) and its member high schools have followed a “Transgender Participation” policy, which permits high school students to compete on gender-specific athletic teams consistent with their gender identity. In this case, plaintiffs are four female athletes who are cisgender who attended CIAC-member high schools and competed in a CIAC-sponsored girls track event against female athletes who are transgender. The plaintiffs allege that the Transgender Participation policy violated Title IX because the participation of transgender females in girls high school athletic events resulted in “students who are born female” having materially fewer opportunities for victory, public recognition, athletic scholarships and future employment “than students who are born male.”
To remedy the alleged Title IX violations, the plaintiffs requested damages and two injunctions — one to enjoin future enforcement of the policy and one to alter the records of certain prior CIAC-sponsored girls track events to remove the records achieved by two transgender girls. The district court dismissed the claims on grounds that the plaintiffs’ request to enjoin future enforcement of the policy was moot since the transgender student athletes had graduated. The court also held that the plaintiffs lacked standing to assert their claim for an injunction to change the record books because their theory of redressability was too speculative. Finally, the court barred plaintiffs’ request for damages because they could find that CIAC did not receive adequate notice that its policy violated Title IX. The plaintiffs appealed.
On appeal, the Second Circuit Court of Appeals affirmed the decision of the district court. The court rejected the plaintiffs’ argument that the policy “deprived them of a ‘chance to be champions’” because the plaintiffs had not alleged a cognizable deprivation. The court found that on numerous occasions, plaintiffs were indeed “champions,” finishing first in various events. The court also rejected the plaintiffs’ argument that the records “could…affect all four plaintiffs’ prospects at future employment,” finding such arguments to be speculative and insufficient to show injury in fact.
Private damages actions under Title IX are available only where recipients of federal funding had adequate notice that they could be liable for the conduct at issue. To determine whether a funding recipient was on notice that its conduct “falls within the scope of Title IX’s proscriptions,” the court looked to guidance promulgated by the U.S. Department of Education’s Office for Civil Rights (OCR) and to relevant decisions from the Courts of Appeals. The Second Circuit Court of Appeals found that CIAC and its members schools did not have adequate notice that they could be liable under Title IX as a result of their policy. The court held that OCR never clearly provided that allowing transgender students to participate on athletic teams consistent with their gender identity violated Title IX. The court held that the Supreme Court’s decision in Bostock v. Clayton County strongly supported the conclusion that CIAC and its member schools lacked notice that a policy such as the one at issue in this case violated Title IX. The court also highlighted cases from its “sister circuits” and found that while the cases did “not address the exact issue of participation of transgender athletes on gender specific sports teams, such authority nonetheless establishes that discrimination based on transgender status is generally prohibited under federal law and further supports the conclusion that CIAC and its member schools lacked clear notice that the policy violates Title IX.” Accordingly, the court concluded that the plaintiffs’ claims for money damages were barred and affirmed the district court’s judgment dismissing the complaint.
On Feb. 13, 2023, the Second Circuit Court of Appeals announced that a rehearing of the case will be set before the full court and that scheduling information will be “forthcoming.”
TORT LIABILITY — SOVEREIGN IMMUNITY
Supreme Court of Ohio concludes that absence of safety equipment, including a fire extinguisher, in a school building is a physical defect and that an exception to sovereign immunity exists under RC 2744.02(B)(4) as a result.
Doe v. Greenville City Schools, 2022-Ohio-4618.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2022/2022-Ohio-4618.pdf
In December 2019, a bottle of isopropyl alcohol caught fire and exploded in a science classroom in the Greenville City School District. Two students sustained injuries because of the incident. In May 2020, the students, identified as Jane Does 1 and 2, and their families filed a complaint against the board of education, the five members of the board, 10 unnamed employees of the board of education, HCC Life Insurance Co. and the Ohio Department of Medicaid. The board and other defendants filed to dismiss the complaint. The students and their parents voluntarily dismissed their complaints and filed an amended complaint against Greenville City Schools; Stan Hughes, the high school principal; and Roy Defrain, a science teacher at the high school. In that complaint, they alleged that the students were injured because district employees failed to provide proper safety equipment, including a fire extinguisher inside the classroom, and use appropriate protocols for the adequate supervision and protection of the students during classroom activities.
The district defendants asked the trial court to dismiss the amended complaint, arguing that the board, Defrain and Hughes were immune from liability under Ohio Revised Code (RC) Chapter 2744. On Sept. 10, 2020, the trial court overruled the motion, relying on Moore v. Lorain Metro. Hous. Auth., 2009-Ohio-1250. The district defendants appealed, asserting that the trial court erred by not applying the sovereign immunity analysis required by RC 2744.03(A)(6) and not making an express determination that Defrain and Hughes were immune from liability. They alleged that appellees failed to allege facts to support their assertions of bad faith or malicious, reckless or wanton conduct against Defrain and Hughes.
The appeals court concluded that the trial court did not err by not making an express determination of whether Hughes and Defrain were immune from liability under RC 2744.03(A)(6) and that appellees' allegations against Hughes and Defrain were not insufficient to satisfy the requirements of Civ.R. 8, because the underlying allegations were questions of fact (SLS 2021-3).
The district defendants appealed to the Supreme Court of Ohio, which accepted jurisdiction on the question of whether the alleged absence of a device or piece of safety equipment, which would not be considered a fixture under Ohio law, cannot constitute a physical defect of a classroom for purposes of RC 2744.02(B)(4).
The supreme court reviewed the exception to the sovereign immunity law set forth in RC 2744.02(B)(4). The exception provides that political subdivisions are liable for injury “that is caused by the negligence of their employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function.”
The court noted that both the trial court and court of appeals had relied on the decision in Moore, which involved the death of two children caused by a fire in an apartment owned by a metropolitan housing authority. The child’s mother claimed that the housing authority was liable because it had removed the apartment’s only working smoke detector and negligently failed to replace it. As a result, the child’s father did not wake in time to rescue the children. In Moore, the supreme court did not expressly answer the question of whether the housing authority’s removal of safety equipment was a “physical defect” for purposes of RC 2744.02(B)(4). Instead, it remanded that question to the trial court for further proceedings.
The Supreme court then reviewed a series of appellate court decisions since Moore, reaching differing conclusions on whether the lack of a safety feature would constitute a “physical defect.” It noted that RC 2744.02(B)(4) required that two separate elements must be met. The injuries must be caused both (1) by a political subdivision’s employee’s negligence and (2) by a physical defect within or on the grounds of buildings that are used in connection with the performance of a governmental function. The Supreme Court concluded: “We agree with the courts that have held that the lack of safety equipment or other safety features could amount to a physical defect.” The court concluded that the absence of safety equipment, including a fire extinguisher, could be a physical defect such that an exception to immunity could exist under RC 2744.02(B)(4). As a result, the court affirmed the decision of the Second District Court of Appeals.