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In this issue: ADA • Arbitration • Bullying • Discrimination – Employee • Discrimination – Sexual Orientation • Due Process • First Amendment – Retaliation • First Amendment – Teacher Speech • Immunity – Political Subdivision Employees • Individuals with Disabilities • Negligence – Duty of Care • School District Property • Title VI • Title IX
Seventh Circuit Court of Appeals finds board of education did not violate ADA when it fired an employee who the board believed had abandoned her job.
Bell v. Bd. of Edn., 7th Cir. No. 16-1365, 2016 U.S. App. LEXIS 17356 (Sept. 22, 2016).
http://caselaw.findlaw.com/us-7th-circuit/1748999.html
Vickie Bell was an employee at Proviso West High School. In February 2012, Bell began experiencing knee and back pain. Her job was physically taxing, requiring her to carry books, climb ladders, crouch, reach and stand for more than 30 minutes. Around that time, her doctor restricted her from lifting more than 10 pounds. The human resources director, Brenda Horton, told Bell the restriction wouldn’t interfere with her job, but in the following weeks, Bell’s pain increased. When Bell’s doctor determined that she should be prohibited from “prolonged standing,” Horton informed Bell she could not work until her condition improved. Bell agreed.
After one year, Bell stopped communicating with the district. The district assumed this meant Bell did not want to return to work. As a result, in December 2012 Horton wrote Bell asking about her condition and plans to return to work. The letter requested Bell’s response within five days. Bell ignored this letter. In March 2013, Horton wrote again requesting the same information within the same time frame. Bell received the second letter, but again did not respond.
One month later, the district assumed she quit, and sent a letter informing Bell that because she hadn’t responded and her continued absence hadn’t been approved, the district determined that she had abandoned her position, and would seek to discharge her for that reason. Bell responded to this communication stating that her doctor hadn’t yet removed her restrictions, which she thought meant she could not return to work. The board of education discharged Bell in May 2013. During her absence, Bell had filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). Subsequently, Bell filed this suit arguing that the district discriminated against her on the basis of disability, failed to accommodate her disability and retaliated against her for filing an EEOC charge.
The district court granted summary judgment for defendants stating that: 1) Bell was not a qualified individual with a disability because she couldn’t perform the essential functions of her job; 2) the district fired her because she abandoned her job, a legitimate reason; and 3) the district did not fail to accommodate Bell, as her refusal to communicate with the district prevented any accommodation.
This court affirmed finding that Bell did abandon her job, that she was not a qualified individual with a disability for ADA purposes because she hadn’t presented evidence that she could perform her job, even with a reasonable accommodation, and that the district court did not abuse its discretion in awarding costs to the defendant.
Ohio Supreme Court finds teacher’s motion to vacate, modify or correct an arbitration award is properly served within the three-month time limit.
Cox v. Dayton Pub. Schools Bd. of Edn., Slip Opinion No. 2016-Ohio-5505.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-5505.pdf
Georgia Cox was an intervention specialist assigned to teach students in the special education unit at a facility in the Dayton public school system. She was placed on administrative leave after allegedly hitting a student who had multiple physical and mental disabilities. After a hearing on the incident, the board served Cox with a notice of intent to terminate her contract. The matter was submitted to arbitration in accordance with the labor agreement between the board and the Dayton Education Association (DEA).
The arbitrator issued a decision finding cause for terminating Cox. The arbitrator emailed a copy of the decision to the attorneys for the board and the DEA, but Cox was not included as a recipient of the email. The board passed a formal resolution adopting the arbitrator’s decision and directing Cox to be served with a copy of the order by certified mail.
Cox filed a motion in the county common pleas court to vacate, modify or correct the arbitration decision. The board responded with a motion to dismiss, arguing that Cox’s motion was not filed within the three-month period required by Ohio Revised Code (RC) 2711.13. The trial court granted the motion to dismiss. Cox appealed. The court of appeals reversed the trial court. (SLS 2015-2).
The board appealed and asked the court to find that RC 2711.13 required that the notice of a motion challenging an arbitration award in a court must be received by the adverse party or its attorney within the three-month period. Cox urged the court not to require actual receipt within that period under RC 2711.13.
The court agreed with Cox and upheld the decision of the appellate court. The court held that there was nothing unclear or ambiguous about the statute, which required the answer to two questions: 1) on what day was the arbitrator’s decision “delivered to the parties in interest?” and 2) on what day was the motion to vacate, modify or correct the arbitrator’s decision “served upon the adverse party or his attorney?” Having determined these dates, the court was then required to determine whether the service date occurred within three months after the delivery date.
In this case, the court found that service was accomplished within the three-month time limit because under RC 1.14, the three-month period began the day after the arbitration award was delivered and Cox sent notice of her motion by certified mail on the same numerical day three months later. Accordingly, the court found that Cox sent notice of her motion to vacate, modify or correct the arbitration decision in a timely manner and affirmed the judgment of the lower court.
Alabama federal court holds that district was not deliberately indifferent to bullying of student with disabilities.
Sparman v. Blount Cnty. Bd. of Edn., N.D.Ala. No. 2:13-cv-00521-TMP (Sept. 19, 2016).
D.W. was a high school student who had an individualized education plan (IEP) for dyslexia. Due to his dyslexia, D.W. was not able to read at grade level and, according to D.W.’s guardian, this caused other children to tease and bully D.W. In October 2012, D.W.’s guardian met with the principal and various other teachers and staff at D.W.’s school, all of whom reported that they had not observed D.W. being a victim of bullying, but rather an active participant in several altercations and disagreements. Nonetheless, school officials drafted a School Safety Plan for D.W.
Over the course of the next year, D.W. and his guardian reported additional incidents of bullying. In each case, district administrators investigated the incident. D.W.’s guardian eventually filed a complaint against the district, alleging three claims pursuant to the Americans with Disabilities Act and section 504 of the Rehabilitation Act. The district moved for summary judgment.
The district court granted the district’s motion for summary judgment. The court applied the five-part test for evaluating the liability of school boards set forth by Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). The court found that there was very little disagreement that D.W. was an individual with a disability and that the district knew about the alleged harassment. However, the district argued that D.W. failed to provide sufficient evidence that the bullying he experienced was on the basis of his disability, that it was sufficiently severe or pervasive to alter the condition of D.W.’s education or that the board was deliberately indifferent to the bullying.
The court found that at least part of the peer harassment that D.W. was subjected to was on the basis of his disability, and that the bullying D.W. experienced was severe and pervasive enough to alter the condition of his education and create an abusive educational environment. However, the court did not find that there was substantial evidence that the board was deliberately indifferent to any harassment or abuse D.W. suffered. The court highlighted the fact that the board investigated and dealt with each reported incident and a safety plan was drafted, implemented and revised. When it was impossible to prove that an incident occurred, the students allegedly involved were still counseled by the district regarding appropriate behavior. As a result, the court rejected the claim that the board was deliberately indifferent to the harassment or abuse and dismissed the case.
District court denies a school district’s motion to dismiss employee’s claims that she was subjected to color discrimination and retaliation for filing an EEOC complaint.
Windsor v. Bd. of Edn., D.Md. No. TDC-14-2287, 2016 U.S. Dist. LEXIS 125371 (Sept. 13, 2016).
http://law.justia.com/cases/federal/district-courts/maryland/mddce/8:2014cv02287/285358/65/
Suzanne Windsor filed an employment discrimination suit against the Board of Education of Prince George’s County and against four district employees in their personal and official capacities. Windsor, a multiracial woman who had worked for the district since 1993, believed that she had not been informed of an available position in 2011. Windsor discussed her concerns with district employees and then her union representative. She experienced what she believed to be retaliation in response to her complaints.
As a result, Windsor filed an EEOC intake questionnaire and then a lawsuit. Windsor alleged color discrimination in violation of Titles VI and VII of the Civil Rights Act, race and color discrimination in violation of 42 USC 1983, a hostile work environment in violation of Titles VI and VII, retaliation in violation of Titles VI and VII, infringement of her due process and equal protection rights under 42 USC 1983 and breach of contract. The district and individual defendants filed motions to dismiss Windsor’s nine causes of action.
The court dismissed most of Windsor’s claims. However, it concluded that there were sufficient facts to state a plausible claim for relief on several of her claims. The court did not dismiss Windsor’s Title VII color discrimination and retaliation claims and Title VI color discrimination, hostile work environment and retaliation claims against the board. Regarding the individual defendants, the court concluded that Title VI liability is premised on the receipt of federal funds, which would be received by a governmental agency rather than an individual, and that Title VII creates a cause of action against employers rather than supervisors. For these reasons, the court dismissed all Title VI and VII claims against the individual defendants in their personal and official capacities.
The court also did not dismiss Windsor’s 1983 equal protection claims or her 1981 claims against the individual defendants in their personal capacities. However, it concluded that the 11th Amendment applied and dismissed these claims against the board of education. It also dismissed Windsor’s complaints against the defendant’s in their official capacities on the basis that they should be treated as suits against the entity. It should be noted that the Sixth Circuit Court of Appeals has concluded that 1981 claims against individual governmental officials are precluded by case law. The district court distinguished the Sixth Circuit’s precedent and did not apply it to this case because the Sixth Circuit did not consider a 1991 amendment to the Civil Rights Act.
DISCRIMINATION – SEXUAL ORIENTATION
U.S. district courts finds that teacher did not provide adequate evidence to support gender discrimination on the basis of her sexual orientation and same-sex marriage.
Vinova v. Henry Cty. Bd. of Edn., E.D.Ky. No. 3:2015cv00037 (Sept. 15, 2016).
Amanda Vinova taught fourth grade at an elementary school in Henry County, Kentucky, during the 2010-2014 school years. One day prior to reaching tenure, she was terminated from her position. As a result, she filed suit against the Henry County School Board, the elementary school, the superintendent, assistant superintendent and principal of the elementary school, alleging violations of Title VI, Title VII and Title IX. The court granted defendants’ Motion to Dismiss against the individual defendants and elementary school (SLS 2016-1). The district court then considered Vinova’s claims against the school board.
Vinova argued that she was discriminated against due to her sexual orientation and same-sex marriage. She cited the omission of her wedding engagement announcement from the elementary school’s announcements even though all other faculty members getting married that year were included. Additionally, she noted that she was required to submit a new social security card to have her married name listed on her nameplate, even though other faculty members were not required to go through the same process. She also alleged that when she was told that her termination was due to “budget cuts,” no other teaching roles were offered to her, and when she applied for an open position for which she was qualified, she was never contacted for an interview. She argued that these actions constituted a direct and intentional disparity in treatment and were taken in direct retaliation against her due to her sexual orientation and same-sex marriage.
The court first noted that Title VI prohibits discrimination on the basis of race, color or national origin, and does not address gender, sex or sexual orientation discrimination. Therefore, Vinova’s Title VI claim failed because none of Vinova’s claims alleged discrimination on the basis of race, color or national origin. The court then turned to Title VII, which prohibits discrimination against individuals with respect to compensation, terms, conditions or privileges of employment based on race, color, religion, sex or national origin. Vinova alleged that discrimination due to her sexual orientation was gender discrimination because she was treated differently than a man would have been treated in the same circumstance (i.e. that of being married to a woman).
In discussing Vinova’s Title VII claim, the court noted that the application of sexual orientation to a Title VII gender discrimination is an unsettled issue, but did not go on to issue an opinion on that question because it found that regardless, Vinova did not provide sufficient evidence to support her Title VII claims, even if Title VII did apply. The court also did not definitively answer the question of whether Title IX applies to claims of discrimination based on sexual orientation, but did point to several cases where other courts have considered sexual orientation as a valid sex discrimination claim under Title IX. The court did not, however, further analyze the question, as it found that regardless of whether Title IX applied, Vinova did not provide adequate evidence to support her claims. As a result, the court granted the board’s motion for summary judgment.
U.S. Sixth Circuit Court of Appeals finds parent’s substantive due process claim fails for lack of evidence that teacher’s act shocked the conscience.
Gohl v. Livonia Public School Dist., 6th Cir. No. 15-2301, 2016 U.S. App. LEXIS 16497 (Sept. 8, 2016).
http://caselaw.findlaw.com/us-6th-circuit/1747760.html
Sharon Turbiak was a special education veteran who taught a preschool class for mentally and physically disabled students. J.G. was born with a disease that caused an unsafe buildup of fluid in the brain. At age three, J.G.’s mother (Gohl) enrolled J.G. in the morning session of the Moderate Cognitive Impairment Program at Webster Elementary School, which offered therapeutic services for students like him. Turbiak was his teacher. During that school year, there were several complaints about Turbiak from her colleagues regarding her teaching methods and relationships with her colleagues. Staff members passed along their concerns about Turbiak’s classroom behavior including using some measure of physical force, getting very close to the children and yelling in their faces. Other staff members reported that Turbiak’s bad behaviors were escalating. None of these incidents involved J.G.
The Director of Personnel for the school district met with Turbiak to discuss these issues. Turbiak admitted that she was frustrated and feeling unappreciated, and considered herself to be less “touchy feely” than her colleagues. Turbiak was later sent home for a few days and told that she would be subject to disciplinary actions if she wasn’t more professional upon her return. There were no reports of mistreatment for the subsequent four months. This ended on Mar. 5, 2012, when a social worker saw Turbiak grab J.G. by the top of his head, jerk it back quite aggressively and yell “you need to listen” very close to his face.
The social worker reported the incident to the principal who asked Turbiak to come to the central office that afternoon. Turbiak defended her actions by citing a “redirecting” technique and suggesting that she put her hand on the back of J.G.’s head “to keep it from bouncing around.” A teacher familiar with this technique thought it sounded reasonable, so Turbiak was sent back to her classroom. An unrelated incident with another teacher sparked an investigation into the teachers’ practices in accordance with school guidelines. The investigation prompted Turbiak and the other teacher to be placed on administrative leave. Gohl then filed a lawsuit alleging violation of a number of federal statutes by Turbiak in the performance of her teaching duties. The trial court found that Gohl did not provide sufficient evidence to support her claims, and Gohl appealed the trial court’s findings.
The court, in affirming the trial court’s judgment, held that: 1) Gohl’s due process claim against Turbiak failed because it was not shown that Turbiak’s alleged act of grabbing a disabled student’s head and yelling in his face shocked the conscience; 2) Gohl’s Americans with Disabilities Act and Rehabilitation Act claims failed because Gohl didn’t show her son was denied any educational benefit since he was making expected improvements; and 3) Gohl’s equal protection claims failed because she did not provide evidence of how similarly situated non-disabled students were treated or that her son was abused because of his disability.
Court finds that a former employee’s allegations that the district deprived him of his property interest in continued employment and his liberty interest in his good name and reputation are plausible and may proceed.
Robinson v. Bridgeport Pub. Schools, D.Neb. No. 8:16CV177, 2016 U.S. Dist. LEXIS 131354 (Sept. 26, 2016).
https://docs.justia.com/cases/federal/district-courts/nebraska/nedce/8:2016cv00177/72440/8
Patrick Robinson alleged that his former employer, Bridgeport Public Schools (BPS), suspended and later terminated his employment based on false allegations that he was having an inappropriate relationship with a female student. He filed a complaint against BPS, which was dismissed in part. In his amended complaint, Robinson alleged that he was denied procedural due process when BPS did not renew his contract.
The court stated that Robinson could assert a 1983 claim to the extent he alleged that the highest officials responsible for setting district policy in the areas of employee suspensions and terminations violated the Constitution when they did not provide him with due process before suspending and terminating his employment.
The court stated that a teacher’s liberty interest might be implicated if the teacher’s integrity, honor or good name was called into question. To state a claim, a plaintiff must allege that: 1) an official made a defamatory, character-demeaning statement that resulted in a significant stigma; 2) the statement occurred during the course of terminating the employee; 3) the defamatory statement was made public; and 4) there was an alteration or extinguishment of the plaintiff’s rights or legal status. Reviewing the facts before it, the court concluded that Robinson’s allegations were sufficiently plausible to claim that BPS deprived him of his liberty, interest in his good name and reputation without due process.
The court also concluded that it was plausible that Robinson had a property interest in his continued employment with the district. Upon review, the court held that the facts Robinson presented (that district employees ignored his complaints, inquiries and requests for a hearing, suspended him without prior notice of a hearing, presentation of evidence or notice of the charges against him, and terminated his employment without allowing him to present and review evidence) were sufficient to allege a plausible claim for deprivation of his property right without due process.
New York federal court grants summary judgment after teacher alleges retaliation for her openly critical comments against the board.
Joinnides v. Floral Park-Bellerose Union Free School Dist., E.D.N.Y. No. 12-CV-5682(JS)(AKT)(July 13, 2016).
https://scholar.google.com/scholar_case?case=3732468918879188467&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Since she started working in October 1996, Patsy Joinnides held various positions with the Floral Park-Bellerose Union Free School District in New York. In June 2010, Joinnides interviewed for a full-year leave replacement position. The committee unanimously concluded that Joinnides was not the most qualified applicant. After she did not receive the full-year position, she declined the district’s offer to resume her most recent position as a full-time building substitute, but agreed to be included on their per diem substitute teacher list.
In November 2010, the board put forth a referendum regarding a proposed $5 million bond for capital improvements. Joinnides and her husband actively campaigned against the board and the proposed bond. The bond was voted down. Joinnides also was an active member of an independent Citizens Budget Advisory Committee (CBAC), which was set up by the board of education to receive input from the community regarding “difficult impending budgetary issues.” The board alleged that Joinnides behaved in an “unprofessional and disruptive manner during her tenure on the CBAC.”
In 2012, Joinnides contacted the district and expressed interest in applying for the per diem substitute list. The board rejected Joinnides’ interest stating that her behavior while on the CBAC was “dysfunctional, disruptive and erratic” and she should not be in the classroom. The board unanimously voted not to place Joinnides on the substitute list. Joinnides commenced action against the board alleging retaliation in contravention of the First Amendment.
The board filed a motion for summary judgment arguing that Joinnides’ November 2010 speech was too far removed from the 2012 denial of her application, and that the board had a non-retaliatory basis for declining to hire her – namely her inappropriate behavior on the CBAC.
The court found that Joinnides stated a prima facia retaliation claim based on the theory that the district retaliated against her in 2012 for her November 2010 protected speech. “Where, as here,” the court held, “there is evidence that the defendant engaged in an ongoing course of adverse action against the plaintiff, such action may serve as additional evidence of retaliatory intent.” Accordingly, the court denied the district’s motion for summary judgment.
However, the court rejected Joinnides’ retaliation claim based on the theory that the district retaliated against her for participation on CBAC. The court found that in light of the fact that Joinnides’ “job” as a member of the CBAC was to convey community concerns, discuss financial issues and proffer a budgetary recommendation to the board, Joinnides’ expression of her opinions during CBAC meetings was “part-and-parcel” of her duties as a CBAC member and accordingly did not constitute protected speech. Accordingly, the district’s motion of summary judgment was granted with respect to Joinnides’ claim that the district retaliated against her based on her speech while on the CBAC.
FIRST AMENDMENT – TEACHER SPEECH
U.S. district court finds that teachers’ statements made pursuant to employees’ official duties are not entitled to First Amendment protections.
Nadolecki v. William Floyd Union Free Sch. Dist., E.D.N.Y No. CV 15-2915, 2016 U.S. Dist. LEXIS 88399 (July 6, 2016).
Plaintiff Matthew Nadolecki was a special education teacher formerly employed on a non-tenured basis by defendant William Floyd School District as both a special education math teacher and a “case manager.” Nadolecki had concerns about a number of issues regarding the district’s special education program, including development and implementation of Individualized Education Plans (IEPs) and irregularities with respect to the math curriculum he was instructed to teach to his special education students.
Around September 2011, Nadolecki contacted Ravi Seeram, the District Assistant Director of Special Education, to express his concerns. Seeram referred Nadolecki to Jeanne Love, the chair of Nadolecki’s school’s Committee on Special Education (CSE). Nadolecki alleged that, when he contacted Love, she told him not to teach the curriculum if he felt his students lacked the proper foundation to learn the material. Nadolecki then addressed his concerns to Ed Plaia, his school’s principal. He alleges that Plaia told him to “teach to the test.”
Around December 2011, the teacher’s union created a committee to address concerns regarding the district’s special education program (Committee). Nadolecki was an active participant at Committee meetings sharing concerns about the reading and math programs for special education students. He later was approached at a union meeting by a senior district special education teacher who warned him that the district superintendent had representatives at the union meetings who were reporting back to the district.
On Jan. 30, 2012, Seeram conducted a formal observation of Nadolecki’s teaching in his classroom, and rated his teaching as “Requires Improvement.” Around February 2012, the district held a “Meet the Superintendent Day” at Nadolecki’s school, where teachers and administrators were encouraged to share concerns regarding their school with the superintendent. Nadolecki shared his concerns with the superintendent and Plaia overheard the discussion. A fellow teacher told Nadolecki that other teachers who had previously voiced their opinions at the event were disciplined and often pushed out of the district.
On Feb. 12, 2012, Nadolecki was informally observed by Plaia, whose feedback was allegedly positive. Nadolecki also alleged that during this meeting Plaia told him he was asking too many questions, and that he was too smart for his own good.
On Apr. 16, 2012, Plaia hand delivered a letter from the superintendent to Nadolecki informing him that his termination would be recommended to the board. The board voted to terminate his employment on May 22, 2012, and his last day of work was Jun. 30, 2012. Nadolecki filed suit against the district and board of education alleging retaliation for exercise of his First Amendment rights.
The court noted that in order to establish a First Amendment retaliation claim, Nadolecki needed to show: 1) That he engaged in constitutionally protected speech by speaking both as a citizen and, on a matter of public concern; 2) That he suffered an adverse employment action; and 3) That his speech was a substantial or motivating factor in the adverse employment action. The court pointed to Garcetti v. Ceballos, where the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline.” The court went on to say that Nadolecki’s concerns were all pursuant to his official duties as a teacher, citing several similar cases, which held that special education and special needs teachers who made comparable statements did so pursuant to their official duties. Nadolecki also used channels of communication only available to him in his official capacity as a teacher, further supporting the fact that he was not speaking in his capacity as a citizen. As a result, the court granted defendant’s motion to dismiss.
IMMUNITY – POLITICAL SUBDIVISION EMPLOYEES
Ohio appellate courts finds that individual board members do not meet their burden of providing evidence that their actions are not demonstrative of malice, bad faith, wantonness or recklessness.
Stepp v. Medina City Sch. Dist. Bd. Of Edn., 2016-Ohio-5875.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2016/2016-Ohio-5875.pdf
Defendant-Appellants, board members for the Medina City Schools Board of Education (Board), entered into a three-year superintendent’s contract in 2006 with Plaintiff-Appellee, Randolph Stepp. The board subsequently entered into a new five-year contract with Stepp. The contract provided several benefits, including the potential to earn annual raises and merit bonuses, and payments meant to discourage Stepp from accepting other job offers. To encourage Stepp to continue his professional growth and development, the contract also included a provision to reimburse Stepp “for any college coursework completed for the purpose of expanding his professional knowledge and skills….”
At the beginning of the contract, Stepp voluntarily forwent receiving any raises and merit bonuses, but went to the board president in 2011 to discuss amending the contract to include a provision for annual payment for educational costs of $30,000 for five years. Stepp suggested this payment be made through the Medina County Educational Service Center (ESC). Correspondence was exchanged regarding this topic, some of which was sent to the other defendant-appellant, James Shields, the school district’s director of human relations and legal in-house counsel.
The proposed contract provision provided that the board would pay Stepp “for acquisition of past academic degrees as they relate to education.” The board approved the proposed amendment on Nov. 7, 2011. On Jan. 9, 2012, Stepp received a check payable to the U.S. Department of Education (DOE) from the ESC for full payment of his student loans. The board and Shields argued they did not realize the contract language meant that Stepp’s student loans would be paid, but rather thought the amended provisions only applied to education sought during Stepp’s time as superintendent in the district.
In fall 2012, prior to when the board alleges it learned about the ESC’s payment of Stepp’s student loans, Stepp’s new contract was discussed. Stepp proposed different bonus provisions based upon a formula dependent on the number of his accumulated sick days. The contract also included reimbursement of income taxes Stepp would have to pay on the educational reimbursement. On Jan. 7, 2013, the board determined the bonus formula would be worth between $50,000 and $60,000 and unanimously voted to approve the new contract.
On Mar. 6, 2013, the board met again and discovered that Stepp’s 2013 contract bonus was actually worth $83,017.06 and had already been paid to him. The board also alleges that this is the first time it learned of the student loan payment from the ESC, a fact that quickly became public knowledge and caused a major outcry in the community. As time went on, Stepp was pressured by the public and individual board members to resign his position as superintendent. The board asked the district treasurer and Auditor of State’s office (Auditor) to investigate Stepp’s use of school district funds, and placed him on administrative leave on Apr. 8, 2013, pending results of the investigation.
The board then determined that it had violated Ohio’s Open Meetings Act (OMA) when it approved Stepp’s 2013 contract, and as a result, adopted a resolution rescinding the contract. The district treasurer demanded return of compensation and bonuses by Stepp as a result of the rescission. In early October 2013, the board adopted a resolution to not renew Stepp’s 2009 contract when it expired on Jul. 31, 2014.
On Oct. 22, 2013, the auditor issued an interim report detailing $4,121 of inappropriate expenditures by Stepp using ESC funds and violations of school district purchasing rules. On Oct. 28, 2013, the board held a Loudermill hearing and passed a resolution to begin formal termination proceedings. The board approved a contract making the interim superintendent the new permanent superintendent and Stepp officially resigned his position on Apr. 25, 2014. Stepp filed this lawsuit alleging breach of contract, defamation and false light invasion of privacy. The trial court denied both parties’ motions for summary judgment, only upholding Stepp’s motion for summary judgment requesting injunctive relief requiring the board to correct the minutes from the Jan. 7, 2013, meeting to reflect the board entered executive session for one or more permissible purposes under Ohio Revised Code (RC) 121.22(G).
The board, on appeal, argued that the trial court erred in denying immunity to the individual board members. The appellate court overruled this assignment of error stating that the employer’s acts or omissions could be malicious, in bad faith, or wanton or reckless based on the fact that the Board only points to Stepp’s deposition testimony about personal treatment by board members during his time as superintendent. The court noted that this testimony has no bearing on its analysis, so the board did not effectively prove it did not act maliciously, in bad faith or wantonly or recklessly. As a result, the board’s appeals were overruled by the appellate court.
Court concludes that a district fails to provide a student with a FAPE after it is informed of his diagnoses of dyslexia and ADHD, and orders the district to reimburse his parents for the student’s tuition at a private school.
A.W. v Bd. of Edn. of Wallkill Cent. Sch. Dist., N.Dist.N.Y. No. 1:14-CV-01583, 2016 U.S.Dist. LEXIS 122766 (Sept. 12, 2016).
https://docs.justia.com/cases/federal/district-courts/new-york/nyndce/1:2014cv01583/100842/32
After their child was struggling with assignments and acting out in class, the parents of a student with disabilities sought to have the school district test their child during the 2009-10 school year. After private testing in March 2010, the student was diagnosed with dyslexia. Notwithstanding this diagnosis, the district concluded in May and November 2010 that the student was not eligible for special education. In December 2010, the student was diagnosed with ADHD. Following that diagnosis, the district instituted a 504 plan but did not provide an IEP. In the fall of 2011, the parents unilaterally placed their child in a private residential school.
In March 2012, after its doctors evaluated the student and reviewed his records at the private school, the district concluded that the student was a qualified individual pursuant to IDEA based on the ADHD diagnosis and gave him an IEP. The parents rejected this IEP and asked the district to pay the student’s tuition costs at the private school for the 2011-12, 2012-13 and 2013-14 school years.
The plaintiff parents asked for an independent review and the independent hearing officer (IHO) concluded that the district had denied the student a FAPE, and directed the district to reimburse the plaintiffs and private school for the student’s tuition in all three years. The state review officer (SRO) affirmed the IHO’s decision in part, and ordered the district to pay the student’s tuition in 2011-12 but not for the other two school years.
Applying the Burlington/Carter test, the court concluded that the district did not provide the student with a FAPE. Because the district was aware of the student’s diagnoses of dyslexia and ADHD and his functional impairments during the 2010-11 school year, its failure to have an IEP in place by the start of the 2011-12 school year was a denial of a FAPE. For the 2012-13 and 2013-14 school years, the court concluded the district’s failure to conduct a functional behavior analysis and provide a behavior intervention plan for the student constituted a denial of a FAPE.
The court concluded that the private school chosen by the parents provided educational instruction to their child that was specially designed to meet his needs and the placement was appropriate for all three school years. Finally, the court concluded that the equities favored the parents and ordered the district to reimburse the parents for the full cost of the student’s tuition at the private school for all three years ($187,000).
However, the court dismissed the plaintiffs’ discrimination claims under Section 504 of the Rehabilitation Act and Title II of the ADA. The court stated that a “mere violation of the IDEA” is not sufficient to make a claim of discrimination under the Rehabilitation Act or ADA. Further, the court denied the plaintiffs’ request for punitive damages because the 11th Amendment bars the imposition of punitive damages against a school district.
Court denies a board of education’s motion to dismiss a former student’s allegation that he was foreclosed from the benefits of participation in a public school education in violation of the ADA.
Conklin v. Jefferson County Bd. of Edn., N.Dist.W.Va. No. 3:16-CV-8, 2016 U.S.Dist. LEXIS 118244 (Sept. 1, 2016).
https://docs.justia.com/cases/federal/district-courts/west-virginia/wvndce/3:2016cv00008/37967/23
William Conklin brought claims stemming from an incident in his 11th grade special education classroom when the teacher, Terry Taylor, grabbed Conklin by the neck, choked him, and pushed him into a bookcase. Following a criminal investigation, Taylor was charged with unlawful restraint and battery. The incident caused marks on Conklin’s body, aggravated a prior back injury, and caused Conklin to have pain, extreme humiliation and embarrassment and extreme fear.
Conklin’s fear of Taylor, who continued as the teacher in the special education classroom, made him unable to continue to attend classes. He was assigned to homebound instruction for the remainder of the 11th grade and for most of his 12th grade year, although he repeatedly requested placement back in the high school. Two months before the end of the year, Conklin’s home instruction was moved to the school library. Conklin was so fearful of seeing Taylor that he was unable to attend his graduation ceremony in June 2015.
Conklin filed his complaint in January 2016 alleging violations of the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Fourth Amendment guarantee against unlawful searches and seizures, deprivation of property and liberty without due process, intentional infliction of emotional distress, and a state claim for personal injury. Conklin’s claims were filed against the board, Taylor and the principal of the high school.
In response to defendants’ multiple motions to dismiss, the court dismissed all claims against the principal, in both his personal and official capacities. It dismissed Conklin’s 14th Amendment procedural due process claim against Taylor. However, it upheld Conklin’s substantive due process claim against Taylor in his individual capacity on the basis that Taylor’s infliction of physical violence and restraint on a student with disabilities rose to the level of malicious severity necessary to entitle Conklin to relief. The court relied, in part, on Taylor’s superior size and strength and position of trust in reaching this conclusion.
The court also concluded that Conklin’s claim that he was denied the benefits of participation in a public school education on the basis of his disability, in violation of the ADA, stated a claim against the school board. It also denied the board’s and Taylor’s motions to dismiss Conklin’s claims of intentional infliction of emotional distress and personal injury. Finally, the court applied the four elements established by the Supreme Court of West Virginia that a plaintiff must show in order to state a claim for intentional infliction of emotional distress and concluded that the allegations in Conklin’s complaint, if proven, demonstrated that he met all four.
New York District Court gives deference to the state administrative review officer and concludes that parents are not entitled to reimbursement of tuition costs under Burlington/Carter test.
G.S. v. New York City Dep’t of Edn., S.D.N.Y. No. 15-VC-5187 (RA), 2016 U.S. Dist. LEXIS 127473 (Sept. 19, 2016).
https://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv05187/444335/31
The parents of a minor child brought a due process claim against the New York City Department of Education (DOE) seeking reimbursement for tuition incurred when they sent their child to a private school for children with disabilities. The parents asserted that the DOE’s proposed IEP was both procedurally and substantively inadequate and that the proposed placement for their child was inappropriate. As a result, parents argued that the DOE could not provide their child with a FAPE.
The IHO’s decision concluded that the IEP was substantively inadequate. For that reason, he concluded that the DOE should reimburse the parents for the tuition incurred at the private school. Upon review, the SRO overturned the IHO’s decision, and concluded that the IEP was procedurally and substantively adequate and that the parents did not raise a non-speculative challenge to the DOE’s proposed placement.
The court concluded that, when the IHO and SRO disagree, the court should defer to the SRO as the final state administrative determination, unless the SRO’s determinations are insufficiently reasoned. In this case, the court found that the SRO’s determinations were well reasoned and supported by the record. Consequently, it upheld the SRO’s decision that the DOE offered the student a FAPE. Because the court found that the parents did not meet the first prong of the Burlington/Carter test, it did not review the second and third elements.
Among the court’s notable conclusions, one involved the parents’ substantive claim that the 1:1 paraprofessional assignment to their child was inappropriate because it was overly restrictive and inconsistent with the student’s right to be educated in the least restrictive environment. The SRO concluded that the evidence supported the paraprofessional assignment. The court deferred to the SRO and noted (quoting an earlier Second Circuit case): “The requirement that students be educated in the least restrictive environment applies to the type of classroom setting, not the level of additional support a student receives within a placement.”
Court concludes that the Ohio Department of Education is not responsible for providing direct educational services to a student while it is reasonably attempting to compel a school district to provide the services.
Johnston v. New Miami Local School Dist. Bd. of Edn., S.D.Ohio No. 1:14cv973, 2016 U.S. Dist. LEXIS 128810 (Sept. 21, 2016).
https://docs.justia.com/cases/federal/district-courts/ohio/ohsdce/1:2014cv00973/178412/96
The New Miami School District suspended and later expelled a 15-year-old student with disabilities who made threats to terrorize the school. The district concluded, after a manifest determination, that the student’s behaviors were not a manifestation of his disability. Following his expulsion, the student and his parents filed an administrative complaint with the Ohio Department of Education (ODE). The ODE found that the district was in violation of the IDEA for excluding the student from school without services.
The student and his parents then filed a complaint against the district and ODE with the U.S. District Court. The plaintiffs’ claims against the district were settled and dismissed by the court. The plaintiffs’ asserted that ODE has an obligation under IDEA to provide direct services to a disabled student when the district was unable or unwilling to do so. 20 USC 1413(g) provides that a state educational agency (SEA) is required to provide direct services to a student if the SEA has determined that the local educational agency (LEA) is unable to establish and maintain programs of free appropriate public education or has students who can best be served by a regional or state program.
Although it specifically stated that these facts were “different,” the district court noted a Ninth Circuit test for holding an SEA responsible for providing a FAPE directly to a student and applied its elements. The Ninth Circuit concluded that an SEA was required to provide direct services for a student when: 1) the LEA’s failure to provide the FAPE was significant; 2) the parents have provided the SEA adequate notice of the LEA’s noncompliance; and 3) the state has been afforded a reasonable opportunity to compel local compliance.
In this instance, the court concluded that the breach was significant and the parents had provided adequate notice. However, the court also held that ODE had been pursuing a reasonable course to compel the district to provide the services. On that basis, the court concluded that ODE was not required to provide services to the student directly and granted ODE’s motion for summary judgment on the IDEA claim.
The plaintiffs also alleged that the ODE was in violation of Section 504 of the Rehabilitation Act. The court concluded that, in order to prove a violation of Section 504, the plaintiffs would have to demonstrate that the failure to provide a FAPE was discriminatory by showing either bad faith or gross misjudgment by ODE. The court held that there is no evidence in the record to show either bad faith or gross misjudgment by ODE. For that reason, the court granted ODE’s motion for summary judgment on that count.
Connecticut district court concludes that district’s offer of a diagnostic placement, rather than an IEP, denied the student FAPE and upholds parents’ entitlement to “advocate fiercely” on behalf of their children.
Mr. A. v. Greenwich Bd. of Edn., D.Conn. No. 3:15-cv-00203, 2016 U.S. Dist. LEXIS 94431 (July 21, 2016).
https://docs.justia.com/cases/federal/district-courts/connecticut/ctdce/3:2015cv00203/107284/37
The parents of a child with disabilities chose to enroll their child in a private school after the school district offered a diagnostic placement for the child rather than an IEP. Parents requested that the district pay their child’s tuition at the private school on the basis that the district’s placement was insufficient to meet their child’s needs. In a due process hearing, the IHO concluded that the district’s offer was appropriate. She relied on an exception in the IDEA (34 C.F.R. § 300.323(f)) applying to interstate transfer within the school year.
Parents appealed the IHO’s decision. The court overturned the decision, concluding that the exception was inapplicable in this instance, which involved an interstate transfer during the summer months, not during the school year. The court also stated that a Connecticut regulation allowing the district to forestall the IEP pending a diagnostic placement could not be read to make the parents forego the creation of an IEP. Further, the court rejected the district’s argument that the parents refused to allow an evaluation of their child, stating that the parents only refused to consent to an evaluation in a diagnostic placement.
Because the district did not have an IEP in place at the start of the school year, the court concluded that the district denied the student a FAPE. The court ordered the district to pay the plaintiffs the full tuition reimbursement and related costs for the student’s attendance at the private school and instructed the plaintiffs on how to request reasonable attorneys’ fees.
Because she had concluded that the parents failed to establish the first element of the Burlington/Carter test, the IHO had not considered the second and third elements. The court, after a de novo review, concluded that the parents had met the second requirement by showing that the instruction was specifically designed to meet the unique needs of the student.
Under the third element of Burlington/Carter, the court concluded:
Parents are entitled to advocate fiercely, even overzealously, on behalf of their disabled children's interests. They also are entitled to disagree with a local education agency's determination as to how those interests would be best served. And, when that agency’s process in protecting those interests contravened applicable law, those parents are generally entitled to relief. Parents should not be stripped of that entitlement as long they operate within the rules and do not hinder the agency in its performance of its statutorily required function.
INDIVIDUALS WITH DISABILITIES ACT
Ohio federal district court refuses to grant qualified immunity to administrator, where complaint alleges animosity and ill-will toward student with disabilities.
Sims v. Bd. of Edn. of Winton Woods School Dist., S.D. Ohio No. 1:16-CV-281 (Aug. 23, 2016).
https://casetext.com/case/sims-v-bd-of-educ-of-winton-woods-sch-dist
Charles Sims was a 19-year-old student with severe mental and learning disabilities in the Winton Woods School District. Charles’ parents filed a complaint against the district asserting that the board and the district’s director of student services failed or refused to accommodate Charles’ disabilities and deliberately failed or refused to provide him with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act. Specifically, the complaint alleged that the district issued IEPs devoid of meaningful content and passed Charles from grade to grade despite the fact that he was not making any academic progress. The district moved to dismiss the complaint for failure to state claims for relief.
The court granted the district’s motion to dismiss in part and denied the motion to dismiss in part. The court found that Charles’ claims were not barred by the two-year statute of limitations because the complaint was filed within two years after Charles reached the age of 18. The court refused to dismiss Charles’ claims for failure to exhaust administrative remedies, citing a settlement agreement where the district agreed it would not raise failure to exhaust administrative remedies as an affirmative defense. The court granted the district’s motion to dismiss Charles’ retaliation claim, finding that Charles didn’t plead any facts establishing what adverse action the district took against them for engaging in speech protected by the First Amendment.
The court also refused to grant qualified immunity to the director of student services. The complaint contained sufficient allegations that the director was driven by animosity or ill-will toward Charles and his family. As a result, the court found a reasonable person could infer that the director’s willful disregard of Charles’ objectively-established disabilities and alleged willful failure to provide him with the educational services required by law was motivated by animus toward him.
Third circuit appellate court finds defendant does not owe student a duty of care to protect him from dangers of a physical altercation with other students because the danger is not foreseeable.
Ross v. Bd. of Edn., 3d Cir. No. 15-2662, 2016 U.S. App. LEXIS 12780 (July 12, 2016).
http://www2.ca3.uscourts.gov/opinarch/152662np.pdf
George Andrew Ross II was a sophomore at Absegami High School. In March 2009, Ross got into a physical confrontation with a senior, Donald Pilgrim, when Pilgrim “spoke fighting words” to Ross in the school hallway about Ross’s girlfriend. Ross claimed Pilgrim initiated the fight, which was broken up by a teacher. A vice-principal then escorted Pilgrim to the principal’s office. Minutes later, Ross ran into Pilgrim’s two sisters who taunted Ross, causing another fight. Pilgrim then broke free from the vice-principal’s grasp and ran toward the second fight, where Pilgrim and his two sisters punched and kicked Ross. Other staff members and the school resource officer broke up the second fight. Ross suffered a fractured eye socket and bruises and cuts to his face and body.
The Pilgrims were charged with aggravated assault and harassment, pleaded guilty and were ordered to pay Ross restitution. Ross was charged with simple assault and disorderly conduct, but the charges were dismissed after the school chose not to pursue them. All students involved in the fight were suspended from school. Ross’s parents filed suit alleging, among other things, that defendants negligently failed to protect Ross from the fight and imposed an unjustified school suspension. The district court found these claims to be meritless. This court affirmed those findings, holding that the negligence claim failed because the dangers in question were not foreseeable and the defendants acted within their discretion in suspending Ross for nine days. The school had a zero tolerance policy of no physical contact between students, and Ross violated that policy by fighting with Pilgrim.
Pennsylvania district court holds that district has the authority to assure individuals on school property conduct themselves appropriately, and excluding a person from school grounds is not in violation of a constitutional right.
Warkevicz v. Berwick Area Sch. Dist., M.D.Pa. No. 4:15-cv-01922 (July 14, 2016).
Plaintiff Edward Warkevicz alleged in his complaint that defendant, Berwick Area School District, barred and excluded him from district property, and a member of the school board made comments about him that damaged him. Warkevicz sued, bringing what the court described as an “obscure action” with a “murky and often discontinuous recounting of the events” included in a complaint that is “inartfully drafted” and “lacks any semblance of a sound factual basis or perceptible timeline [of] events.” Warkevicz claimed that, by excluding him from school grounds without a hearing, the district infringed his rights of assembly, travel, speech and association under the First, Fifth, and 14th Amendments. He also raised claims of intentional infliction of emotional distress, slander and false light invasion of privacy.
The court granted the school district’s motion to dismiss on all counts, with prejudice, stating “the courthouse doors will consequently be closed to any further attempt by Warkevicz to pursue this action in federal court.”
With respect to whether the district had the authority to exclude Warkevicz from school grounds, the court held: “To ensure the safety and well-being of a school district’s constituents, removal or exclusion of a member of the public from school district property without a hearing does not violate a constitutional right and consequently is not so actionable.” The court cited numerous circuit court cases in which the courts concluded that school districts have the authority and responsibility to assure that third parties on school property conduct themselves appropriately.
On the equal protection claim, the court stated that school district authorities were not precluded from making reasonable classifications and enforcing reasonable conditions to come onto and use school property. Classifications that are not “invidious classifications such as those based on race, political views or religious affiliations” are constitutionally permissible.
The court also concluded that the district had qualified immunity on these constitutional claims. The court stated that a generalized facilities ban reasonably aimed to secure public welfare and ensure pupil safety is consistent with “the school district’s broad discretion to regulate its day-to-day activities and to ensure the well-being of its constituents as it sees fit, a discretion that judges should resist persistently disturbing where such intrusion is not constitutionally warranted.” Regarding Warkevicz’s state law claims, the court concluded that the district had absolute immunity and that Warkevicz failed to plausibly state claims for the infliction of emotional distress, slander and false light invasion of privacy.
U.S. district court finds parent cannot establish a Title VI violation for racial discrimination or harassment when a school district takes reasonable steps to address a student’s use of a racial slur against another student.
Donaldson v. Maury Cty. Bd. of Edn., M.D.Tenn. No. 1:14-0088, 2016 U.S. Dist. LEXIS 131378 (Aug. 22, 2016).
https://casetext.com/case/donaldson-v-maury-cnty-bd-of-educ
A sixth grade student (CJD) rode the bus to school most days during the 2013-14 school year. On Jan. 28, 2014, CJD’s grandfather (Donaldson) met with the principal of CJD’s middle school (Eady) to discuss an incident on the school bus where CJD was called the “n-word” by a third-grade student (HR). Eady contacted the principal at HR’s elementary school (Brown) to inform him of the incident. Brown investigated, confirmed the incident, and instructed HR to sit at the front of the school bus going forward and to “stay away from the older children” on the bus. HR denied using the “n-word.”
On Feb. 10, 2014, HR kicked CJD, and again referred to CJD as the “n-word” while on the bus. Brown investigated this incident by viewing video footage and then issued a bus conduct report, implemented a bus behavior plan, placed HR on bus probation, discussed the incident with HR’s father, and permanently assigned HR to a seat in front of the school bus. Eady also periodically followed up with CJD and other students to ensure there were no more issues.
During this time, the plaintiff (CJD’s grandmother and legal guardian) alleged she made several attempts to contact the district but no one from the district contacted her or her husband to provide any information regarding their handling of the incidents. On Jul. 17, 2014, plaintiff filed a complaint alleging Title VI violations including failure to take appropriate action in response to allegations that CJD was the victim of physical assault and use of a racial slur by another student. Plaintiff argued that defendant was deliberately indifferent to CJD’s needs. Defendant argued the incidents were handled appropriately, therefore, there was no deliberate indifference.
The court noted that Title VI prohibits institutions receiving federal funds from discriminating on the basis of race, color or national origin. As a result, such an institution can’t restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program. Therefore, Title VI applies to defendant, and a claim of deliberate indifference to student-on-student harassment is actionable under Title VI.
To support a claim for deliberate indifference, plaintiff must show: 1) the harassment was so severe, pervasive and objectively offensive that it could be said to deprive the plaintiff of access to educational opportunities or benefits provided by the school; 2) the defendant had actual knowledge of the harassment; and 3) the defendant was deliberately indifferent to the harassment. Deliberate indifference can be demonstrated only where the response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances.
The parties here disagree about some of the details of the incidents at issue, but the court found that there was nothing unreasonable about the defendant’s response. The court granted defendant’s motion for summary judgment finding that while the use of the “n-word” is “profoundly offensive and hostile,” the use of this term on two occasions by a single third-grade student was not so severe and pervasive that it precluded CJD’s access to an education opportunity by creating a racially hostile environment.
Tennessee federal district court finds that school board fulfilled its Title VI obligations in responding to students’ claims of a racially hostile environment.
Hill v. Blount Cnty. Bd. of Edn., E.D.Tenn. No. 3:14-CV-96-PLR-HBG (Aug. 23, 2016).
Sarah and Dalton Hill were siblings who attended William Blount High School. While there, Sarah and Dalton, who were of Asian descent, were both allegedly asked whether they “ate dog” or “ate cat” and were subjected to other forms of racial discrimination and harassment from fellow students in the form of racial slurs. Sarah and Dalton brought action against the board of education alleging racial discrimination in violation of Title VI.
In their complaint, Sarah and Dalton alleged that the racial harassment incidents were reported to school employees and the school failed to take necessary and appropriate action to end the harassment. They also alleged that the school board failed to implement anti-discrimination policies and failed to adequately train staff concerning issues of racial harassment and discrimination. The school district moved for summary judgment.
The court found that the students’ allegations fell short of establishing the “deliberate indifference” necessary to hold the district responsible for the alleged racial discrimination. The district reviewed the district’s harassment policy with students, alerted the students’ teachers to increase their supervision of students, and promptly investigated and responded to all reported claims of racial harassment. Contrary to the students’ assertion, the court also noted that the school employees were trained regarding harassment and the school board had policies to deter racial hostility and discrimination. As a result, the court found that the school board fulfilled its Title VI obligations in responding to the students’ claims of a racially hostile environment in their schools.
Ohio federal district court grants motion enjoining district from restricting transgender student’s access to girls’ restroom.
Bd. of Edn. of the Highland Local School Dist. v. United States Dept. of Edn., S.D.Ohio No. 2:16-CV-524 (Sept. 26, 2016).
Jane Doe was an eleven-year-old transgender girl who was enrolled at Highland Elementary School. Jane, who was assigned male at birth, has communicated to her family that she is female since she was four years old. When Jane began kindergarten at Highland Elementary, she used a traditionally male name and was listed as male in school records. In 2012, however, Jane’s parents helped her socially transition by obtaining appropriate clothing and a legal name change and asked the district to treat her as female and permit her to use the girls’ restroom. The district denied the parents’ request to permit Jane to use the girls’ restroom and to change the records to reflect her female name. Jane was required to use the office restroom, which was generally used by school personnel and other adults.
In December 2013, Jane’s parents filed a complaint with OCR, alleging that the district discriminated against Jane on the basis of her sex. OCR amended the complaint to include an additional allegation that staff members subjected Jane to harassment by referring to her as a boy and failing to use female pronouns when referring to her.
In March 2016, OCR notified Highland that its treatment of Jane Doe violated Title IX. The following day, OCR presented a proposed Resolution Agreement which provided that the district would grant Jane access to sex-specific facilities consistent with her gender identity, treat Jane consistent with her gender identity and engage a third-party consultant with expertise in child and adolescent gender identity to assist it in implementing the terms of the agreement.
In June 2016, the district filed a motion for preliminary injunction against the United States Department of Education (DOE) asking the court to enjoin the federal government from enforcing its position that the term “sex” in Title IX and its regulations includes “gender identity,” and that Title IX requires schools to allow students to access restrooms consistent with their professed gender identity.
Jane and her parents moved to intervene as third-party plaintiffs and filed their own motion for preliminary injunction, asking the court to require the district to treat Jane “as a girl and treat her the same as other girls, including using her female name and female pronouns and permitting Jane to use the same restroom as other girls.”
The court found that it lacked jurisdiction over the district’s complaint, and therefore denied the district’s motion for preliminary injunction. However, the court granted Jane Doe’s motion for preliminary injunction and ordered the district to “treat Jane Doe as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.”
In approving the motion, the court held that given the ambiguity of the word “sex” as used in Title IX, DOE’s interpretation of Title IX as applying to gender identity was entitled to deference. Based on DOE’s interpretation of Title IX, the court found that the student “had been denied access to the communal girls’ restroom ‘on the basis of [her] sex.’”
U.S. district court enjoins school district from denying transgender male student access to boys’ restroom.
Whitaker v. Kenosha Unified Sch. Dist. No. 1, E.D.Wis. No. 16-CV-943-PP, 2016 U.S. Dist. LEXIS 129678 (Sept. 22,2016).
Plaintiff, Ashton Whitaker, a high school student began telling his teachers and peers about his female-to-male transition and asked that they refer to him using male pronouns and by his male name at the beginning of his sophomore year of high school (fall 2014). In the spring of 2015, Whitaker asked to be allowed to use the boys’ restrooms at school, a request that was denied by school administrators who allowed him to use only the girls’ restroom or the single-user, gender-neutral restroom in the school office. The single-user restroom was far from Whitaker’s classes and only used by staff and visitors. As a result, Whitaker began avoiding drinking liquids and using the bathroom for fear of being stigmatized as different. During this time, Whitaker experienced fainting spells due to extreme emotional distress, stress-related migraines, depression, anxiety and suicidal thoughts.
After learning of the U.S. Department of Justice’s (DOJ) conclusion that transgender students have a right to use restrooms based on gender identity, Whitaker began using the male-designated restrooms at school and continued to do so with no problems until late February 2016. He was informed in early March that he could no longer use the male-designated restrooms but continued to use them. Whitaker and his mother met with an assistant principal who informed them that absent medical documentation, Whitaker was required to use the restroom consistent with the stated gender on his school records and that changing those records required medical documentation. Whitaker’s pediatrician sent two letters to the school recommending he be allowed to access the boys’ restroom. The school, however, continued to disallow Whitaker’s use of the boys’ restroom.
Whitaker tried to avoid using restrooms, but used the boys’ restroom when necessary, prompting the school to direct security guards to notify administrators if they spotted students going in the “wrong” restroom. Whitaker sued the district alleging a Title IX violation related to his treatment after he started his female-to-male transition.
The trial court denied defendants motion to dismiss after oral arguments. This court granted Whitaker’s motion for preliminary injunction finding that: 1) Whitaker showed a likelihood that his claims would be successful on the merits; 2) because he was now a senior in high school, disallowing injunctive relief would create a situation where, if he prevailed, no adequate legal remedy for his suffered loss would be available; 3) Whitaker would suffer irreparable injury if the court didn’t enjoin the school’s actions; 4) Whitaker’s irreparable harm outweighed any harm the district would experience as a result of granting the injunction; and 5) issuing the injunction wouldn’t negatively impact a public interest.