School Law Summary 2020-2
In this issue: Age Discrimination • Arbitration — Appeal • Discrimination — Disability • Discrimination — Race • Due Process • Fair Share Fees • Firearms • Immunity — Political Subdivision • Individuals With Disabilities • Sexual Harassment • Territory Transfer
District court allows some age and sex discrimination claims against school district by former administrator to continue, grants summary judgment to district on others.
Goodsite v. Bd. of Edn. of the Norwalk City School Dist., N.D.Ohio No. 3:16-cv-2486, 2020 U.S. Dist. LEXIS 35379 (Mar. 2, 2020).
https://www.leagle.com/decision/infdco20200303f13
Sandra Goodsite was employed by the Norwalk City School District for 36 years. She started her career as a teacher, then served as an elementary school principal, director of curriculum and assistant superintendent. In 2008, after she had been promoted to the director of curriculum position, Goodsite learned that she was making less per day than every other administrator, including a male administrator with less seniority. Notwithstanding her success in the district, Goodsite alleged that she experienced hardships throughout her career because of what she termed the “old boys’ club” atmosphere at the district.
When the district posted another administrative position later in 2008, Goodsite learned that the man hired, who had less seniority, education and experience, was given a contract with fewer working days at a higher rate of pay. When she questioned this, the superintendent said “He has five kids. What did you expect us to do?” Goodsite subsequently submitted a letter to the district alleging sex discrimination. She cited several examples to document what she believed was the district’s pattern of favoritism toward men. The board ultimately did nothing about Goodsite’s letter. Goodsite stated she was advised not to make the matter public because it could be bad for the district, and she agreed to not discuss it.
In 2014, Goodsite sought the position of superintendent with the district but was not selected by the board of education. The individual who was selected declined the position because the board did not vote unanimously to hire him; three members voted for him and two voted for Goodsite. Because it would need to begin another search for a superintendent, the board decided to hire an interim superintendent. The board met to discuss hiring Goodsite for the position and a man, Will Folger, as her assistant superintendent. At that meeting, three of the board members decided to hire Folger as the interim superintendent instead of Goodsite.
Later in 2014 and continuing into 2015, the board began a new search for a permanent superintendent, and Goodsite again applied. Of the 21 candidates who applied for the position, the board chose seven to interview. Goodsite was not in that group. The board ultimately hired a 41-year-old man.
Goodsite then filed an Equal Employment Opportunity Commission (EEOC) complaint with the Ohio Civil Rights Commission (OCRC), alleging age and sex discrimination and retaliation, listing her 2008 complaint of sex discrimination and the 2014 and 2015 failures to promote. Goodsite was working on a one-year retire-rehire contract for the 2014-2015 school year. Although she expressed her desire to continue working for the district in the 2015-2016 school year and her willingness to work with whoever was hired as superintendent, Goodsite’s contract was not renewed. In May 2016, Goodsite filed another EEOC charge of discrimination with OCRC, alleging that the nonrenewal of her contract was an act of age discrimination, sex discrimination and retaliation. She filed suit in federal court, making multiple claims of age and sex discrimination, retaliation, and age-plus-sex or sex-plus-age discrimination under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA).
The court found that Goodsite met the McDonnell Douglas elements for a prima facie case for sex and age discrimination when the board failed to promote her to the position of superintendent in 2014 and hired a male interim superintendent instead. It also concluded that she established a prima facie case for retaliation for her 2008 letter when the board failed to promote her to superintendent or interim superintendent because of the letter. Although the board offered nine reasons to demonstrate that its decision to hire Folger over Goodsite were nondiscriminatory, the court concluded that a reasonable jury could find these reasons merely pretext for sex discrimination and did not grant summary judgment to the district on that claim.
Regarding Goodsite’s age discrimination claim after the board voted to hire a younger candidate for the position of superintendent in 2014, the court concluded that her age was not a “but-for” cause of the board’s decision not to hire her. The court granted the board’s motion for summary judgment on that claim. By contrast, the court denied the district’s motion for summary judgment on Goodsite’s ADEA claim regarding the board’s failure to interview her in 2015. The court concluded that there was a genuine dispute of material fact regarding whether Goodsite would have been interviewed in 2015 but for her age.
Regarding Goodsite’s Title VII claims of discrimination and retaliation for hiring a male candidate with less administrative experience, education and institutional knowledge of the district, the court concluded that she asserted sufficient facts to demonstrate a prima facie case under McDonnell Douglas. It further concluded that there is sufficient evidence that a jury could conclude the board’s asserted nondiscriminatory reasons for not interviewing Goodsite were pretextual. The court denied summary judgment for the district on these claims.
The court granted summary judgment to the board on Goodsite’s claims that the nonrenewal of her contract for the 2015-2016 school year was discriminatory. The court concluded that Goodsite met her burden to demonstrate a prima facie case on these claims. However, the court found that there was not sufficient evidence that a jury could conclude the board’s asserted nondiscriminatory reasons for its decision were pretextual. The court also dismissed Goodsite’s claim that the board’s decision not to renew her contract was retaliation for submitting the 2008 letter.
Finally, the court dismissed Goodsite’s age-plus-sex discrimination claims under ADEA and sex-plus-age discrimination claims under Title VII and Ohio law. The court concluded that ADEA does not permit mixed motive discrimination claims. Although Title VII does permit mixed motive claims, the court concluded that Goodsite did not need to show that she was treated less favorably than younger female employees because the facts supporting the claims that were not dismissed show she was treated less favorably than a male employee.
District court grants district’s motion for judgment on the pleadings on all discrimination claims brought by teacher.
Bushong v. Delaware City School Dist., S.D.Ohio No. 2:19-cv0858, 2020 U.S. Dist. LEXIS 13447 (Jan. 27, 2020).
Viviane Bushong was employed by the Delaware City School District for 30 years. She began her employment in 1991 as a career guidance counselor at Delaware Hayes High School. After complaining about some issues at the high school to principal Richard Stranges, Bushong was involuntarily transferred to Willis Intermediate School as a guidance counselor. The issues in that matter were litigated in a case that was dismissed in 2010.
For the 2017-2018 school year, Bushong was involuntarily transferred to Woodward Elementary School as an English as a second language (ESL) teacher. She also worked one day per week as a career counselor for high school students. For the 2018-2019 school year, Bushong was involuntarily transferred back to Hayes as an ESL teacher, director of two study halls, teacher on lunch duty and work-study coordinator.
When the 2018-2019 school year began, Bushong had an incident with an ESL student and was placed on administrative leave while an investigation took place. After the investigation, the district gave Bushong a reprimand and required her to attend a meeting with one of the involved student's fathers. Bushong requested an administrative presence for the meeting, but none was provided; the student's father was aggressive and hostile during the meeting. Following the investigation, Bushong was assigned to five periods of study hall, one hour of work-credit counseling and lunch duty. Bushong expressed concerns to Stranges about classroom discipline and control. Stranges told Bushong she would receive support and her students would be divided into small groups of four; neither of these steps was taken.
For the 2019-2020 school year, the district assigned Bushong to an ESL class. Bushong attempted to rearrange her class roster based on skill level and requested curriculum materials. The district told Bushong she could not rearrange her class roster and it would not order curriculum materials. Bushong spent $150 of her own money on materials.
On March 8, 2019, Bushong sued the school district, the district superintendent and Stranges. She alleged deprivation of her First, Fifth and 14th Amendment rights in violation of 42 United States Code (USC) Section 1983; conspiracy to interfere with her civil rights in violation of 42 USC Sections 1985 and 1986; age discrimination in violation of the Age Discrimination Employment Act (ADEA), related state law and Ohio public policy; conspiracy to harass and retaliate against her in violation of Ohio law; and retaliation against her in violation of Ohio law and ADEA.
Defendants filed a motion for judgment on the pleadings on all counts. The court noted that, in order to survive such a motion, the pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," and sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
On Bushong’s claim that she was demoted in retaliation for the exercise of her First Amendment rights, the court examined all of Bushong’s expressions described in the claim. It concluded that each of these expressions was made in the course of Bushong’s public employment and therefore not protected speech. It granted the district’s motion for directed verdict on that basis.
The court also granted directed verdict for the district on Bushong’s Fifth and 14th Amendment claims. The district argued that Bushong failed to allege an independent Constitutional violation and, because she did not respond to this argument, Bushong waived it. The court agreed, finding that Bushong had not alleged the deprivation of any constitutionally protected right, which is required for a claim of deprivation of due process. Although she stated she was reassigned to a different position. Bushong did not allege any violation or breach of a contract or statute.
The court granted directed verdict to the district on Bushong’s conspiracy claims because she did not allege a conspiracy among multiple actors. It dismissed her complaints under ADEA because she did not exhaust her administrative remedies with the Equal Employment Opportunity Commission. The court granted a directed verdict for the state claims of unlawful discrimination because Bushong did not arbitrate the claim.
Regarding Bushong’s claim that she was discriminated against in violation of Ohio public policy, the court found that Ohio law does not recognize this as a cause of action.
An employee who is not a party to an arbitration proceeding under the Master Contract, because it expressly permits only the union to seek arbitration, cannot file an appeal to the courts.
Dayton Pub. Schools v. Elmore, 2020-Ohio-820.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2020/2020-Ohio-820.pdf
Lisa Cummings-Elmore was formerly employed by Dayton Public Schools (DPS) as a teacher. On March 9, 2016, DPS sent her a notice informing her that she had been placed on paid administrative leave in connection with an altercation between her and the principal of the school at which she worked. She was also informed that, until she received notice to the contrary from DPS, she would be regarded as a trespasser if she entered onto any DPS property.
Cummings-Elmore then accepted a temporary position teaching Spanish at Horizon Science Academy for roughly a four-month interval running from April 4, 2016, through July 31, 2016. In a letter dated May 25, 2016, DPS notified Cummings-Elmore that her acceptance of the temporary position at Horizon Science Academy had been deemed a "constructive resignation" of her employment with DPS, effective April 1, 2016.
The Dayton Education Association (DEA) filed a grievance on Cummings-Elmore's behalf, which DPS denied. An arbitration began on April 26, 2017, and concluded on May 26, 2017, after which the arbitrator issued an award on July 31, 2017. In the award, the arbitrator determined that DPS had violated its collective bargaining agreement with DEA because that agreement had no terms "deal[ing] with paid administrative leave [or] with constructive resignation."
DPS filed an application to vacate the award in the Montgomery County Court of Common Pleas on Aug. 28, 2017, to which DEA responded on Sept. 11, 2017, with a memorandum in opposition and an application to confirm the award. The trial court's magistrate entered a decision confirming the award on Nov. 20, 2018, and the trial court largely adopted the magistrate's decision in its judgment of June 25, 2019. On July 25, 2019, Cummings-Elmore filed a timely notice of appeal, and DEA elected not to participate in that appeal.
DPS then filed a motion to dismiss on Sept. 11, 2019, in which it argued that Cummings-Elmore lacked standing to prosecute an appeal. Cummings-Elmore addressed the issue of standing during oral argument. Noting that her employment with DPS was subject to the Master Contract in effect from Dec. 21, 2013, through June 30, 2017. The only procedures established by the Master Contract for resolving disputes between professional staff members and DPS are set forth in Article 3. An employee, consequently, was not a party to an arbitration proceeding under the Master Contract, because the Master Contract expressly permits only DEA to seek arbitration.
The court concluded that Cummings-Elmore’s employment with DPS was subject to that version of the Master Contract. That contract included no provision explicitly investing her with standing to seek arbitration independently of DEA, meaning that she was not a party to the arbitration proceeding. As a result, Cummings-Elmore lacked standing to prosecute an appeal, and her appeal was dismissed.
Court upholds school district’s termination of employee after reopening investigation due to employee filing a disability claim with EEOC.
Schwendeman v. Marietta City Schools, S.D.Ohio No. 2:18-CV-588, 2020 U.S. Dist. LEXIS 19052 (Jan. 31, 2020).
https://www.leagle.com/decision/infdco20200210725
Jonathan Schwendeman was a bus driver employed by the Marietta City School District. He had surgery on his foot in August 2016 and was given a doctor’s excuse to not return to work until Oct. 29, 2016. Scwendeman was seen working as a special duty Belpre Police Officer during the time of his doctor’s ordered sick leave. On Nov. 3, 2016, Schwendeman had a meeting with his supervisors at the district and discussed his actions during his sick leave. Schwendeman admitted to working on four different dates as a paid contractor for private companies.
Schwendeman was asked to a second meeting with the district on Nov. 15, to which he was accompanied by an Ohio Association of Public School Employees (OAPSE) Regional Representative, who answered most of the questions posed to Schwendeman. The court found conflicting information on whether the district’s investigation was closed after the Nov. 15 meeting. On Feb. 6, 2017, Schwendeman emailed his supervisor, and the response was that the investigation was no longer ongoing and was closed unless new information was found.
On Feb. 14, Schwendeman filed an Equal Employment Opportunity Commission (EEOC) disability complaint. When the district was made aware of the EEOC complaint, they reopened the investigation into the misuse of sick time. The district requested more information from the Belpre Police Department and received records indicating Schwendeman had worked six days during his sick leave. The district, upon receiving the new information and now knowing the district was not told the truth, submitted notice of suspension and proposed discharge to Schwendeman.
The district requested a meeting with Schwendeman regarding the six days worked with the police department during sick leave and recommended that the board terminate his employment. The board terminated Schwendeman’s employment for falsifying sick leave. The district also filed a police report for theft because of Schwendeman’s fraudulent use of sick leave although the grand jury declined to indict him. Schwendeman filed retaliation claims with EEOC, and the claims were investigated and denied. Schwendeman filed a grievance against district for untimely discipline pursuant to Article 7 of the collective bargaining agreement (CBA). However, he withdrew the grievance due to seeking legal help. On June 13, 2018, Schwendeman brought this suit against the district, its superintendent and his direct supervisor, alleging state and federal disability discrimination, Federal Medical Leave Act (FMLA) retaliation, retaliation under the Americans with Disabilities Act (ADA), and intentional infliction of emotional distress (IIED).
The court found Schwendeman to have met the burden of a prima facie case of discrimination. However, the district articulated a legitimate nondiscriminatory reason for the adverse action. The record demonstrated that the district relied on particularized facts to make the adverse action. Schwendeman’s claim of pretext failed to show the employer did not have an honest belief in making the decision to terminate. Thus, the court concluded that ADA and Ohio discrimination claims fail. The FMLA retaliation claim failed because there is no evidence Schwendeman took FMLA leave. The retaliation claim under ADA failed because although the first three elements are met for a prima facie case, the causal connection is not proven. Schwendeman argued the district reopened his case to retaliate due to his complaint filing. The record shows the investigation was reopened to respond to the discrimination allegations, not as a response to the allegations generally. The court also discussed temporal proximity from protected activity to the adverse action. The court stated three months is too long to be a causal connection. IIED failed because an investigation is not outrageous conduct and filing a police report also falls outside the definition of outrageous conduct.
District court grants in part and denies in part motion for judgment on the pleadings in case alleging discrimination after Caucasian male not rehired after retirement.
Carney v. Columbus City Schools Bd. of Edn., S.D.Ohio No. 2:18-cv-250, 2020 U.S. Dist. LEXIS 69767 (Apr. 21, 2020).
Dennis Carney, a Caucasian male, was employed as the director of purchasing for the Columbus City School District for 15 years. In January 2017, Carney and his supervisor discussed and agreed that if Carney retired, he would be rehired into the same position. Shortly thereafter, Carney notified his supervisor of his intent to pursue the retire/rehire option discussed. Based on the supervisor’s representations and Carney’s own communications with other management and administrative staff, Carney believed the board would approve his rehire.
On March 6, Columbus Branch 3117 of the NAACP facilitated a meeting between its leaders and school administrators to discuss the Locally Economically Disadvantaged Enterprise (LEDE) program and the district’s purchasing department. At the meeting, an African American man approached Carney and stated that he wanted the school district to “do business with people that look like him,” which Carney took to mean he only wanted the LEDE program to do business with African Americans, not all minorities.
On March 21, the board approved Carney’s retirement. On March 30, NAACP held a meeting attended by LEDE vendors and school administrators. The purpose of the meeting was to review Carney’s practices and his potential rehiring. According to a Columbus Dispatch article, the result of that meeting was that the school board “had to make a Cultural Shift within the Administration,” which Carney took to mean his elimination. Carney was not notified of this meeting or told what was discussed.
On April 20, Carney was informed that the district, NAACP and other minority activists were resisting Carney’s rehire and alleging that his purchasing practices were a barrier to minority-owned businesses because of a lack of inclusion efforts. On April 28, Carney was informed that the board did not have enough votes to rehire him and that the proposal to rehire him had been removed from the board’s agenda. On May 30, Carney sent a memorandum to the board president and superintendent, requesting that the decision not to rehire him be reconsidered. That same day, the Columbus Dispatch published an article titled “Black contractors opposed Columbus schools rehiring administrator.” The article described how minority vendors were campaigning against Carney and included statements accusing Carney of being culturally insensitive, referring to him as a “cancer,” and equating him to a racist. Carney’s employment with the district ended on May 31.
On Oct. 5, 2018, Carney filed a complaint alleging several causes of action against the district. The district defendants filed a joint motion for judgment on the pleadings. In his complaint, Carney alleged that each of the board members kept him from forming a contract for employment with Columbus City Schools when the board removed the proposal to rehire Carney from the agenda. Carney further claims that this action was taken based on his race. The court held that Carney’s allegations contained enough specificity against the board members to survive the district’s motion for judgment on the pleadings.
Carney also alleged that several district employees acted “with a common discriminatory objective in a manner meant to or resulting in Carney being treated differently than other similarly situated African-Americans” and took actions in furtherance of the conspiracy to interfere with his employment with Columbus City Schools, which were directly motivated by his race as Caucasian. The court found that Carney’s claim was a conclusory statement that was insufficient to allege with specificity a conspiracy claim. The court found that although the district may have been pressured or otherwise influenced by outside groups, that is not the same as conspiring with the outside groups not to rehire Carney based on race. As a result, the court granted the district’s motion for judgment on the pleadings with regard to this claim.
Courts holds that no reasonable jury could find that the school district knowingly exposed kindergartner to the risk of sexual assault.
Doe v. Jackson Local School Dist. Bd. of Edn., 6th Cir. No. 19-3019, 2020 U.S. App. LEXIS 10238 (Apr. 1, 2020).
https://law.justia.com/cases/federal/appellate-courts/ca6/19-3019/19-3019-2020-04-01.html
On Sept. 15, 2016, a student told his teacher that C.T. lit a match on the bus the day before, and the teacher escalated the situation until reaching the principal, Susan Waltman. Waltman disciplined C.T. and created a “safety plan” because C.T. also had an issue telling the truth when confronted about poor behavior. One part of the safety plan was to have C.T. ride in the front seat of the school bus. C.T. moved himself to the front seat opposite where a female kindergarten student sat.
On Nov. 11, Minor Doe revealed to her parents that she had been assaulted on the school bus. Minor Doe's parents immediately notified the police and emailed Principal Waltman. Waltman reviewed the bus's video footage and confirmed that C.T. had sexually assaulted Minor Doe and also learned that C.T. had taken steps to hide the assaults. C.T. never returned to the school, was eventually expelled and later pleaded guilty to gross sexual imposition. The school cooperated with the police, who concluded that the bus driver had not known of the assaults.
Minor Doe and her parents sued the school board and five school employees. The Does alleged, among other claims, that the employees violated the substantive Due Process Clause by failing to prevent C.T.'s sexual assault of Minor Doe. The district court granted summary judgment to the defendants, determining that the claim failed because the Does could not show that the defendants had acted with the requisite culpability to establish a substantive due process violation.
To determine the requisite culpability to establish a substantive due process violation, the appellate court turned to the Supreme Court, which has held that an executive actor's conduct violates the Due Process Clause only if it is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Case law has provided a two-part test to determine if a substantive due process violation has occurred. An official must be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Having drawn the inference, the official next must act or fail to act in a manner demonstrating “reckless or callous indifference.”
The court ruled that nothing in C.T.’s record would have put school employees on notice that C.T. posed a risk of sexually assaulting Minor Doe. Further, the court ruled, the school employees' responses to the risk did not show "callous disregard." Instead, the employees’ action was to put C.T. close to an adult in an attempt to reduce his opportunities for reckless behavior. The court made a final point that, although the Does constitutional claims failed, if they had brought the state claim to appeals as well, the standard does not extend tort immunity to municipal officials who act in a "reckless manner.”
Court of Appeals for the Sixth Circuit finds the Constitution provides a fundamental right to a basic minimum education.
Gary B. v. Whitmer, 6th Cir. Nos. 18-1855/1871, 2020 U.S. App. LEXIS 13110 (Apr. 23, 2020).
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0124p-06.pdf
The plaintiffs, who are students in five of the lowest performing schools in Detroit, sued several Michigan state officials, who the plaintiffs say are responsible for the abysmal conditions in their schools. The plaintiffs' complaint is that the conditions in their schools are so bad, due to the absence of qualified teachers, crumbling facilities and insufficient material, that those schools fail to provide access to literacy (the court went into great detail regarding the conditions). The district court dismissed all claims brought by plaintiffs through the lens of a fundamental right to education; substantive due process and Equal Protection through the 14th Amendment; and compulsory attendance.
The court’s discussion started with defendants’ argument that the state was no longer the proper defendant because control of the Detroit schools had been returned to the school district. The district and appellate courts did not agree. The circuit court found it is evident from the Michigan Constitution and statutes, as well as its prior interventions in the school system, that the state retained significant authority over Detroit's public schools.
In reviewing the Equal Protection claim, the court stated that a plaintiff must allege both a difference in treatment from others and that this difference cannot be supported by a sufficiently important governmental interest. The court determined the Equal Protection claim failed because plaintiffs' allegations failed to highlight any difference in treatment that suggests the state discriminated against them, and they have failed to adequately allege that the government treated plaintiffs disparately as compared to similarly situated persons. The court addressed the chance for plaintiffs to ask the district court for leave to amend due to the case being remanded on the due process claim.
Plaintiffs’ next argument was a violation of substantive due process when combined with state compulsory school attendance laws. The court reiterated Supreme Court rulings whether a person’s constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests. The claim failed but due to insufficient facts to allow the court to address its plausibility. This case was determined to be a middle-of-the-road case, and the question is whether the state's interest is enough to justify the restraint if education is not actually provided.
The court then went to the crux of the case and asked what a fundamental right under substantive due process is and whether access to literacy is a fundamental right. The court began a deep dive into all of the Supreme Court educational cases. The most challenging case was San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973), stating that there is no broad, general right to education. However, this court narrowed the question to a fundamental right to access to literacy. The court relied on this language from Rodriguez to support its ruling: “Education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society,”
After continuing to dissect the reasoning of the Supreme Court in many other education cases, this court determined it “must assess whether a basic minimum education — meaning one that plausibly provides access to literacy — is a fundamental right. Applying the substantive due process framework from Glucksberg and Obergefell, and looking to the reasoning of Rodriguez and Plyler, we conclude that the answer is yes.”
The court then reviewed the historical prevalence and significance of education; addressed whether a basic minimum education is "implicit in the concept of ordered liberty;" recognized and addressed arguments against a basic minimum education as a fundamental right; and defined the extent of the right needed to resolve the matter.
The court stated the right to basic minimum education is not the high-quality education we have come to expect in our country. Instead, the right only guarantees the education needed to provide access to skills that are essential for other fundamental rights and liberties, most importantly participation in our political system. This amounts to education sufficient to provide access to a foundational level of literacy, “the degree of comprehension needed for participation in our democracy.”
The district court’s order was affirmed in part and reversed in part and was remanded for the due process claim only.
On May 19, 2020, the Sixth Circuit issued an order regarding this case. “A member of the en banc court sua sponte requested a poll in this case pursuant to 6th Cir. I.O.P. 35(e). A majority of the Judges of this Court in regular active service has voted for rehearing en banc of these cases. Sixth Circuit Rule 35(b) provides that: A decision to grant rehearing en banc vacates the previous opinion and judgment of the court, stays the mandate, and restores the case on the docket as a pending appeal. Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandates are stayed, and these cases are restored to the docket as pending appeals.”
Kentucky court denies former board members’ motion for preliminary injunction following governor’s executive order abolishing state board of education.
Houchens v. Beshear, E.D.Ky. No. 3:20-cv-00006-GFVT, 2020 U.S. Dist. LEXIS 33631 (Feb. 27, 2020).
When Gov. Andy Beshear was running for the position of governor of the Commonwealth of Kentucky, he announced that he intended to abolish the State Board of Education and create a new board with new members. After he was elected, Beshear issued an executive order that abolished the Kentucky Board of Education and eliminated the position of any board member serving at that time. Next, Beshear, by executive order, created a new board and appointed 11 new members.
The former board members filed a complaint in federal court, alleging that the governor’s actions consisted of procedural and substantive Due Process violations because he fired the previous board members without cause. They also sought a declaration from the court on the constitutionality of Beshear’s action and whether it violated the separation of powers doctrine in the Kentucky Constitution. The former board members also filed a motion for an emergency preliminary injunction, seeking to enjoin the newly appointed board members from taking any further actions until an adjudication of the merits of their underlying claims.
The court started its opinion with a review of whether the claims “arise under” federal law. The court acknowledged that the claims alleged violations of the 14th Amendment but stated that a claim under a federal statue does not give the court federal question jurisdiction if it is “so attenuated and unsubstantial as to be absolutely devoid of merit.” In this case, the court found that the former board members failed to assert a viable claim under the 14th Amendment because they had no property or liberty interest in an appointed and voluntary state office. Because they were political appointees, the court found them more akin to public officials instead of employees.
The former board members highlighted that Kentucky laws provide that board members may only be removed for cause and argued that this language granted them certain procedural rights. However, the court highlighted that the governor did not simply remove the members from a state office but rather exercised his authority to reorganize the state government in a manner that abolished their offices. The court found that since the governor abolished the entire board, the statutory “cause” requirement was not implicated.
Because the court found that there was not a strong likelihood of success on the merits, it denied the former board members’ motion for preliminary injunction.
Union’s good-faith reliance on existing Ohio law and longstanding Supreme Court precedent to collect agency fees prior to Janus prevents claims for recovery of past fees.
Lee v. Ohio Edn. Assn., 951 F.3d 386, 2020 U.S. App. LEXIS 5493 (6th Cir.2020)
https://www.opn.ca6.uscourts.gov/opinions.pdf/20a0055p-06.pdf
Sarah Lee was employed as a public school teacher by the Avon Lake School District. When Lee was hired by the district, she was required to either join defendant Avon Lake Education Association, a union, as a union member or pay fair-share fees as a nonmember. This was so because the collective bargaining agreement between the school district and the union included a fair-share clause, which was consistent with Ohio law and the Supreme Court's pronouncement endorsing fair-share fees in Abood v. Detroit Bd. of Edn., 431 U.S. 209 (1977). Lee elected to pay fair-share fees rather than join the union.
Anticipating that the Supreme Court would overrule Abood, Lee filed this putative class action suit on June 25, 2018, asserting that the union and various state actors had violated her constitutional rights by imposing compulsory fair-share fees as a condition of employment. Lee raised claims under USC Sec. 1983, the Declaratory Judgment Act, 28 USC Sec. 2201, and various state-law torts, including conversion. She sought a declaration that various provisions of Ohio law — which implemented fair-share fees — were unconstitutional, injunctive relief to prevent further transfer of her wages by the school district to the union, and damages from the union for the fair-share fees, which she had already paid.
Two days after Lee filed suit, the Supreme Court issued its decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018). The court explained in Janus that fair-share fees resulted in nonmembers being "forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities." The Janus court held that this practice violated the free speech rights of nonmembers "by compelling them to subsidize private speech on matters of substantial public concern." Therefore, the Janus court overruled its prior precedent, explaining that Abood's endorsement of fair-share fees had been a "windfall" to public-sector unions. The court in Janus said, "States and public-sector unions may no longer extract agency fees from nonconsenting employees.” Accordingly, the Supreme Court reversed the judgment of the lower court and remanded for further proceedings consistent with its opinion.
With Janus in hand, Lee voluntarily dismissed her claims against the state officials and did not oppose dismissal of the school district, leaving only her claims against the union. Then, the union moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), on the grounds that plaintiff's claims for injunctive and declaratory relief were moot and that its affirmative defense of good faith barred Lee’s claims for money damages because it had followed Ohio law and Supreme Court precedent in collecting agency fees. The district court agreed and granted the motion to dismiss. Lee timely appealed, contesting only the district court's dismissal of her Sec. 1983 and state law conversion claims.
The court of appeals found that the district court correctly concluded that Lee’s First Amendment claim under 1983 was barred by the good-faith defense because the union was entitled to rely on existing Ohio law and longstanding Supreme Court precedent to collect agency fees. The court then held Lee’s conversion theories under state law failed under then-existing state and federal law, because Lee was contractually obligated to pay them pursuant to the collective bargaining agreement, just as the union was obligated to collect them. In other words, it was a condition of Lee's employment that she pay fair-share fees. She therefore had no right to ownership or possession of them at the time they were taken.
School district’s motion to construe Janus’ impact on employees’ rights to withdraw union membership apart from a window period held not ripe for determination.
Louisville City School Dist. Bd. of Edn. v. Ohio Assn. of Pub. School Emps. (OAPSE)/AFSCME Local 4 AFL-CIO, N.D.Ohio No. 5:19-cv-1509, 2020 U.S. Dist. LEXIS 69739 (Apr. 21, 2020).
https://www.leagle.com/decision/infdco20200512924
Sears, Lutz and Faber were Louisville City School District employees and Ohio Association of Public School Employee (OAPSE) members whose employment was covered by a collective bargaining agreement (CBA). On June 28, 2018 — the day after the United States Supreme Court's decision in Janus v. Am. Fedn. of State, Cty., and Mun. Emps., Council 31 138 S. Ct. 2448 (2018) was released — Sears, Lutz and Faber notified the school board that "at the beginning of the 2018-2019 school year," they wished to revoke their memberships. OAPSE denied the revocation requests because bargaining unit employees are prohibited from resigning their union memberships except during a specified revocation window and the requests were made outside that window.
Nevertheless, the school board — relying on Janus — halted the deduction of the employees' union dues and fees. In response, OAPSE filed a grievance alleging that the board violated the CBA by unilaterally stopping dues deductions. The board then sought a "declaration by this Court construing Janus and its effect on state public-sector collective-bargaining contracts and union members' ability to withdraw consent from automatic payroll deductions for dues and fees to the [u]nion or to withdraw only within a 'window.’" OAPSE moved to dismiss the board's declaratory judgment action pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6).
However, the court found the board’s motion for a declaratory judgement seeking a determination as to whether Janus exposed it to the possibility of a lawsuit was speculative at best and was insufficient to confer standing. While the school board decided to halt the deduction of the union dues and fees allegedly in violation of the CBA, that potential breach of contract claim did not give rise to federal jurisdiction and was scheduled for arbitration. The court also found despite the lack of standing, the board’s action was designed to explore the boundaries and limits of Janus, which was not ripe for consideration.
The court concluded that a claim was not ripe for adjudication if it rests upon future contingent events that may not occur as anticipated or at all. At this point, the board had halted dues deductions from Sears, Lutz and Faber and the remaining questions and issues were set for arbitration, all factors that the board considered when determining the claim was not ripe for determination.
Court holds school employees must meet basic Ohio peace officer training requirements in order to lawfully carry concealed firearms in district safety zones.
Gabbard v. Madison Local School Dist. Bd. of Edn., 2020-Ohio-1180.
http://www.supremecourt.ohio.gov/rod/docs/pdf/12/2020/2020-Ohio-1180.pdf
Gabbard and several other parents of students enrolled in the Madison Local School District appealed the decision of the Butler County Court of Common Pleas, which granted summary judgment to Madison Local School District Board of Education.
In the aftermath of a 2016 school shooting at the Madison Junior-Senior High School, Madison Local passed a resolution that allowed it to authorize several Madison Local School District employees to carry concealed firearms into the Madison Local School District's school safety zones. Madison Local claimed authority for this resolution on application of Ohio Revised Code (RC) 2923.122(D)(1)(a), a criminal statute that excludes certain individuals from the offense of possessing a deadly weapon in a school safety zone.
The persons authorized by Madison Local to carry concealed firearms under this resolution were deemed "approved volunteers" employed by the Madison Local School District who were licensed to carry a concealed firearm in Ohio and who had undergone 24 hours of active shooter/killer training. The authorized employees had also completed and passed a criminal background check, drug screen and mental health evaluation.
The training requirement passed by Madison Local differed from the requirement passed by the General Assembly set forth in RC 109.78(D). That requirement governed basic peace officer training in Ohio and required a minimum of 728 hours of training, divided into units and subunits. Individuals must also pass a criminal background check, physical fitness test and drug screen. The purpose of Ohio Peace Officer Training Academy training is "to provide the student with a strong basic knowledge of the role, function, and practices of a peace officer."
After Madison Local passed the resolution, Gabbard moved for a permanent injunction stopping Madison Local from implementing the resolution unless the employees completed an approved basic peace officer training program in accordance with RC 109.78(D). Gabbard also sought the public disclosure of certain court documents that Madison Local had provided to the trial court under seal, such as mental health evaluations of employees authorized to carry concealed weapons.
Both Gabbard and Madison Local moved for summary judgment on Gabbard's request for a permanent injunction. In addition, Madison Local moved for a protective order restricting the disclosure of the mental health evaluations. After taking the matter under advisement, the trial court granted Madison Local's request for a protective order. The trial court also granted Madison Local's motion for summary judgment on Gabbard's request for a permanent injunction of the resolution. Gabbard appealed, raising two assignments of error for review.
The first issue presented to the appellate court was determining how much training a teacher or school employee must receive before carrying a firearm into a school safety zone while on duty, a matter that the General Assembly decided in RC 109.78(D), which provides “[n]o public or private educational institution * * * shall employ a person as a special police officer, security guard, or other position in which such person goes armed while on duty, who has not received a certificate of having satisfactorily completed an approved basic peace officer training program, unless the person has completed twenty years of active duty as a peace officer.”
Despite RC 109.78(D), Madison Local maintained that RC 2923.122 permitted it to authorize any individual, including its staff, to carry weapons on school property. RC 2923.122 prohibited a person from knowingly possessing a deadly weapon or firearm in a school safety zone. The General Assembly crafted several exceptions including any other person who has written authorization from the board of education or governing body of a school to convey deadly weapons or dangerous ordnance into a school safety zone or to possess a deadly weapon or dangerous ordnance in a school safety zone and who conveys or possesses the deadly weapon or dangerous ordnance in accordance with that authorization RC 2923.122(D)(1)(a) .
The court found that RC 2923.122 did not provide Madison Local with authority to enact a resolution above the clear and unambiguous dictates of RC109.78(D). Contrary to the trial court's decision, the court concluded that RC109.78(D) and RC 2923.122 do not conflict with one another and courts must apply both statutes as written.
Gabbard also sought the public disclosure of certain court documents that Madison Local had provide to the trial court under seal. This included the mental health evaluations of the Madison Local School District employees. In accordance with Sup.R. 45(E)(2), the appellate court found the trial court's decision to grant Madison Local a protective order was supported by clear and convincing evidence that the presumption allowing public access to these court records is outweighed by at least one, if not more, higher interests. These interests include the individual privacy rights and interests of those Madison Local School District employees. While transparency and accountability are fundamental public interests, the court noted that public disclosure of these sensitive records could reveal the employees' identities. The court concluded that this was true even where names and other identifying information were excluded. Finally, the court held that the public policy behind arming school district employees would be served by restricting access to the records to ensure the anonymity of the employees who were authorized to carry concealed firearms in a school safety zone.
IMMUNITY — POLITICAL SUBDIVISION
Appeals court determines trial court did not err in granting summary judgment to district due to political subdivision immunity for students’ failed rocket flight resulting in a burned leg.
Douglas v. Columbus City School Bd. of Edn., 2020-Ohio-1133.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-1133.pdf
Liezl Douglas attended Wedgewood Middle School and had science class with teacher Kirk Bardos. As part of the science class curriculum, Bardos instructed students on the design process of a rocket and had completed this assignment for the last 23 years. On the date in which Douglas was harmed, the rocket she and three other students constructed went roughly 15 feet in the air before veering right, toward her. The rocket struck her ankle, and Bardos got her immediately to the school nurse. Douglas filed a complaint against the board of education for the Columbus City Schools, the district and Bardos. Defendants were awarded summary judgment at the trial court. The appeal followed, assigning three errors, and the court considered them together as they were interrelated to political subdivision immunity.
Under Ohio law, courts apply a three-tiered analysis to determine whether a political subdivision is entitled to immunity. The first tier provides a general grant of immunity. The second tier focuses on the five exceptions to immunity. The last tier requires an assessment of whether any of the statutory defense may apply for reinstatement of immunity.
Douglas argued that the fin coming off of the rocket can be defined as a physical defect exception in the tier two analysis. However, the court did not agree with this argument as a physical defect is only in reference to buildings and grounds. The court went on to state that even if it was determined to be a physical defect, a defense in the third tier of the analysis would apply. The court stated, in accordance with Ohio Revised Code 2744.03(A)(5), a political subdivision is immune from liability if the injury "resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.”
The court concluded that the manner in which a teacher instructs a student to use a piece of school equipment, the manner in which the student is supervised and the manner in which the equipment is maintained and inspected have all been determined to be discretionary acts sheltered from liability. After review of the pleadings and evidentiary materials submitted on summary judgment, the case ruled there is no evidence to establish appellees "created an unreasonable risk of harm" or acted with "a perverse disregard" to the fact students might be injured as a result of the way the science class was conducted, the course was designed or the manner in which the students were supervised. The three assignments of error were overruled and summary judgment for the defendants was upheld.
Appeals court concludes that district was entitled to statutory immunity in death of student during out-of-state team trip.
Michael v. Worthington Ohio City Sch. Dist., 2020-Ohio-1134.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2020/2020-Ohio-1134.pdf
Jay Michael was the administrator for the estate of Franklin Clark, who was a 16-year-old high school student at Thomas Worthington High School (TWHS). Since 2002, the TWHS boys' varsity basketball team had taken a yearly trip to Fripp Island, South Carolina, to participate in practices, scrimmages, team bonding experiences and recreational activities. Prior to the trip, the coaches and chaperones sent an e-mail to the parents of TWHS basketball players providing information about the planned trip to Fripp Island as a team. On June 1, 2017, a meeting with the parents was held to discuss the trip, and Clark’s mother signed a release of liability form.
Upon their June 10 arrival at Fripp Island, the team practiced at a park basketball court and then returned to their lodging house to eat breakfast. A team meeting was then held at which safety instructions were given, including using the "buddy system" and swimming in water where the players could touch the bottom. After the meeting, some of the players went to the community swimming pool, some players stayed at the house, some went fishing and others, including Clark, went to the beach. All groups had adult supervisors with them.
While swimming in the ocean with two other players, Clark was told by an accompanying adult coach to come closer to the shore. Unfortunately, Clark was lost, and his body was found the next day by the local search and rescue team. On Feb. 16, 2018, Clark’s estate filed a complaint against the school district alleging claims of negligence resulting in wrongful death and a survivorship claim. Subsequently, on June 28, 2018, the estate filed an amended complaint, adding a claim for willful, wanton, reckless and intentional misconduct. On Jan. 31, 2019, the trial court granted summary judgment for the school district on the basis of governmental immunity pursuant to Ohio Revised Code (RC) 2744.02. Clark’s estate then appealed, one of its arguments being the trip to Fripp Island was too tenuously related to the operation of a school district to be considered a governmental function and the coaches were negligent in failing to have a safety plan and failing to supervise the players.
To determine whether a political subdivision is entitled to immunity under RC Chapter 2744, a court must engage in a three-tiered analysis. In the first tier, a court applies the general grant of immunity contained in RC 2744.02(A)(1), providing that "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function." The second tier of the immunity analysis requires a court to determine whether any exceptions apply to the facts and in the third tier of the analysis, if the facts of the case fall within any exception, the court must consider whether any of the defenses to liability contained in RC 2744.03 reinstate immunity.
In this case, the court of appeals concluded that the school district, TWHS and the board of education were part of a political subdivision as defined in RC 2744.01(F)1, the coaches were employees of the school district and that "[t]he provision of a system of public education" is a governmental function pursuant to RC 2744.01(C)(2)(c). It is well-recognized that a political subdivision acts through its employees. Therefore, the general grant of immunity under RC 2744.02(A)(1) applied in this case.
The court of appeals agreed with the trial court’s finding that the purpose of the trip to Fripp Island was to conduct organized practices and scrimmages, develop close team relationships, foster bonding among team members and experience other geographic regions and cultures. The court of appeals also agreed with the trial court’s conclusion that the team trip falls under the governmental function of providing a "public education." Therefore, because defendants were engaged in a governmental function at the time of the incident, the school district and its employees are entitled to a general grant of immunity under RC 2744.02(A)(1).
Finally, the appeals court upheld the trial court’s finding that the school district and its employees were immune from liability under the third tier pursuant to RC 2744.03(A)(5). The Ohio Supreme Court has recognized that teachers and coaches have wide discretion in supervising students and this discretion falls within RC 2744.03(A)(5) immunity. The decisions regarding supervising the players fell within the coaches' discretionary authority to determine the level of supervision necessary. There was no evidence that the coaches acted with a malicious purpose or a willful and intentional design to do injury to Clark or in bad faith, with a dishonest purpose, moral obliquity, conscious wrong doing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. Thus, the school district and its employees were correctly held to have immunity from liability. The exceptions to liability in RC 2744.02(B) did not apply in this situation and even if an exception applied, the defenses in RC 2744.03(A)(3) and (5) would reinstate immunity.
Ohio court of appeals finds that trial court did not err in precluding career center instructor from coverage under the immunity statute in student injury case.
Seese v. Buckeye Career Ctr., 2020-Ohio-933.
https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2020/2020-Ohio-933.pdf
On March 27, 2017, Hunter Seese was attending an Energy Operations class at Buckeye Career Center. The lesson for that day was about load securement using chains and snap binders and additional pipes or bars (“cheater bars”) to gain leverage on the handle of the snap binder. The cheater bar in use during the lesson was a fence post driver. When Seese was securing his load during the lab portion of the class, the fence post driver slipped off the snap binder handle, and the handle flew backwards and struck Seese in the face, causing injuries.
On June 15, 2018, Seese filed a complaint, which alleged that Seese’s instructor was negligent in the instruction, training and supervision of Seese, the incident occurred on the grounds of the Buckeye Career Center, and the post driver and snap binder handle were physical defects. In April, the defendants filed motions for summary judgment, claiming immunity under Ohio Revised Code Chapter 2744. The trial court denied the motions, finding genuine issues of material fact to exist. The trial court did not list the material facts at issue.
On appeal, the court of appeals reviewed the testimony of students in Seese’s class, along with experts who had experience in the heavy equipment and transportation industry, including training in truck safety and load securement. The appellate court agreed that questions existed as to whether the fence post driver and the snap binder together constituted a physical defect because they did not operate as intended (i.e. safely) due to a perceivable condition (i.e. the fence post driver could shift or slip off causing the snap binder handle to snap backwards) and thus the use of the two items in concert could have diminished the worth or utility of the items and their ability to function in a safe manner.
The court also found that questions existed as to whether the decision to use a fence post driver as a cheater bar was exercised in a wanton or reckless manner, as well as whether Seese’s instructor instructed the students to pull down and then push on the cheater bar, whether he conducted an outdoor demonstration using the fence post driver and whether he knew of Seese’s location relative to the snap binder handle as Seese attempted to secure the snap binder.
As a result, the court found that the trial court did not err in finding appellants were not covered under the immunity statute and in overruling their motions for summary judgment.
District court dismisses, for failure to exhaust IDEA administrative remedies, ADA and Sec. 504 claims against school district by former student alleging that discrimination and retaliation compromised his education.
Sorah v, Tipp City Exempted Village School Dist. Bd. of Edn., S.D.Ohio (No number in original), 2020 U.S. Dist. LEXIS 45343 (Mar. 16, 2020).
https://scholar.google.com/scholar_case?case=4267610058337226793&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Zachery Sorah was a student at the Tipp City Exempted Village School District. He graduated from the district in 2017. Sorah was diagnosed with disabilities, including a speech impediment, auditory processing disorder, attention deficit disorder and poor socialization skills. While he was a student at the school, he had an individualized education program (IEP) and an education plan developed under Section 504 of the Rehabilitation Act (504 plan).
During Sorah’s final semester in high school, he was given a three-day in-school suspension after tobacco and an electronic smoking devise were found in his car on school property. In April 2017, he was given a 10-day out-of-school suspension with a recommended 80-day expulsion when a wooden pipe, rolling papers and empty tobacco wrappers were found in his car on school property.
Following an expulsion hearing, conducted by Superintendent Dr. Gretta Kumpf and Principal Steve Verhoff, the superintendent agreed to hold the 80-day expulsion in abeyance if Sorah complied with certain conditions upon his return to school. According to the plaintiffs, although Sorah’s mother, Brandy, reminded them of Zachery's disabilities, there was no discussion at that hearing of whether Zachery's behavior might be related to his disabilities, i.e., a "manifestation determination."
When Sorah returned to school on May 4, 2017, his schedule was reduced from seven periods to four periods. His classwork was self-taught on the computer, and he had to manage his own classes with little direction or guidance from his teachers. The teachers assigned to his room were often unfamiliar with the subject matter assigned to him. Contrary to his IEP and Section 504 Plan, he was not given visual supports or frequent checks of his comprehension of the subject matter. In addition, he was escorted everywhere he went in the school building, forbidden to socialize with other students and forced to leave school to eat his lunch. He was also barred from attending the senior activities including prom and picnic and from participating in varsity baseball games.
In April 2019, Sorah and his mother filed suit against the Tipp City Exempted Village School Board of Education and against the superintendent, alleging violations of Title II of the Americans with Disabilities Act (ADA) and Section 504. They allege that "[a]s a result of Defendants' discriminatory and retaliatory actions, Zachery suffered a compromise in his education" and that Sorah was punished more harshly than a nondisabled student who engaged in unlawful behavior. In an amended complaint, Sorah and his mother added a 42 USC 1983 claim that their 14th Amendment rights were violated and asserted a claim for damages against the superintendent in her individual capacity.
Regarding the Sorahs’ claims for relief under ADA and Section 504, the defendants requested judgment on the pleadings. They argued that Brandy Sorah lacks standing to pursue these claims, that the superintendent cannot be held individually liable under the ADA or Section 504 and that Sorah failed to exhaust administrative remedies as required by the Individuals with Disabilities Education Act (IDEA).
The court considered whether the Sorahs’ complaint contained the required direct or inferential allegations on all material elements under some viable legal theory to survive judgment on the pleadings. It noted that the Sorahs included additional facts in their response brief. However, the court did not consider these additional facts because they were matters outside the pleadings and noted that plaintiffs are not permitted to remedy pleading deficiencies through a response brief.
Regarding Brandy Sorah’s claims of retaliation under ADA or Section 504, the court concluded that she lacked standing and granted the requested judgment on the pleadings. The court concluded that, although Brandy Sorah engaged in protected activity under Section 504 and ADA, she presented no facts regarding adverse action taken by the defendants against her. The court dismissed Brandy Sorah’s claims with prejudice.
The court dismissed Sorah’s ADA and Section 504 claims against the school board for failure to exhaust administrative remedies available under IDEA prior to filing suit. The court concluded that the gravamen of Sorah’s claims of compromise to his education, including the failure to hold a manifestation determination when considering the April 2017 disciplinary matter, are claims seeking relief for the denial of a free appropriate public education (FAPE). Although Sorah had already graduated from high school, he was seeking damages related to a denial of FAPE. The court concluded that that, regardless of the remedy sought, a person seeking those remedies for a denial of FAPE must exhaust administrative remedies under IDEA before pursuing the claims under other federal laws.
The court stated that Sorah was seeking relief for educational injuries and that he failed to show that relief was not available to him through IDEA at the time of his injury. It concluded that Sorah could not fail to act ("sit on") his live claims at the time they occurred, wait two years and then seek compensatory damages.
District court dismisses parents’ claims against board of education for denial of FAPE, denies district’s request for legal fees.
Dougall v. Copley-Fairlawn City School Dist. Bd. of Edn., N.D.Ohio No. 5:17cv1664, 2020 U.S. Dist. LEXIS 13560 (Jan. 28, 2020).
A.D. was a student in the Fairlawn-Copley City School District from kindergarten until her withdrawal in November 2015 when she was in ninth grade. Throughout her education at the district, A.D. was a strong student, getting A’s and some B’s.
The court included a voluminous description of the facts in the case. A.D. had had irritable bowel issues since the second grade, which caused her to have to frequently go to the bathroom and sometimes caused her to soil herself. Starting in seventh and eighth grade, A.D. experienced increased problems with her teachers and peers. Her mother noticed inattention and focus issues during this time period, as well as problems with increased anxiety. Her parents both testified regarding numerous instances of alleged bullying, particularly during A.D.'s eighth-grade year, and they noticed behavior changes, withdrawal and isolation in eighth grade. A.D. began expressing suicidal ideation in December of that year and started to receive regular psychiatric counseling. Her parents informed her guidance counselor, although he did not recall being advised about the suicidal ideation.
A.D. underwent a private psychological assessment in early 2015. The psychologist concluded that A.D. met the diagnostic criteria for autism spectrum disorder (ASD) without accompanying intellectual or language impairment. The psychologist also concluded that A.D. displayed symptoms of depression and anxiety and met the criteria for generalized anxiety disorder and adjustment disorder with depressed mood.
In the summer before A.D. was to begin high school, her mother emailed the high school counselor and principal to advise them that A.D. had been recently diagnosed with ASD. A meeting was held among A.D.’s parents, the counselor and high school psychologist, at which time the parents gave the assessment to school employees. They requested accommodations for their daughter. Neither of the school employees provided any information to the parents regarding special education services, the Individuals with Disabilities Education Act (IDEA) evaluation process or the possibility that A.D.'s ASD, depression and/or anxiety might be considered a disability. A.D.’s parents stated that they did not know that A.D. might qualify for an individualized education program (IEP) or special education services, or even what an IEP was. A.D. completed a six-week social skills and anxiety management course at Akron Children's Hospital (ACH) in mid-October 2015.
On Oct. 12, 2015, a student handed a teacher what appeared to be a plan to shoot students, listing the names of six students, including A.D., a map of the school and threatening statements. On Oct. 13, A.D. admitted to writing the plan, stating in a written confession that she was hurting and she thought the note was a way to cry out and distract herself from her pain. A.D. was arrested on charges of inducing panic and aggravated menacing and transported to the Summit County Juvenile Detention Center. She was suspended from school for 10 days with a recommendation for expulsion.
A.D.’s parents sent a letter to the district superintendent referencing A.D.’s autism, anxiety and adjustment disorder diagnoses and stated that they believed the behavior that led to the suspension was a manifestation of her disability. They requested a manifestation determination and asked the district to convene an IEP team. Following a two-week partial hospitalization program at ACH, A.D.’s psychiatrist wrote a letter indicating that A.D. was diagnosed with depressive disorder, generalized anxiety disorder, social phobia and ASD. One of A.D.’s providers sent a letter requesting evaluation for a 504 plan or IEP.
Following a hearing, A.D. was expelled from school for 80 days, with 60 days held in abeyance provided A.D. continued the ACH program, did not present a threat to herself or others, and followed any recommended course of treatment/counseling recommended by her mental health practitioner and provide the district with a release to speak directly with this professional. A.D.’s parents appealed her expulsion, withdrew her from the district and enrolled her in a private parochial school. At an expulsion appeal hearing, the parents requested that the district rescind the expulsion and conduct a multifactored report regarding A.D. and made the request in writing. At that time, the parents also revoked any consent for records or other items and communications that the parents had previously executed. On Nov. 19, 2015, the district upheld A.D's expulsion.
On Nov. 30, 2015, the parents filed a due process complaint and requested a hearing, alleging that the school failed to identify, locate and evaluate A.D. as a child with disabilities despite having documentation and knowledge of her disabilities, and failed to provide A.D. with a free appropriate public education (FAPE) by not providing her with an evaluation team report (ETR) and an IEP.
Over the next two months, the district attempted to secure the necessary consents and access to A.D. to conduct an ETR and multifactored evaluation (MFE). Over that time, consents were given and revoked, meetings were scheduled and not held, and A.D. and her parents refused to have district employees interact with her. The relationship between the parents and the district continued to erode, and no ETR or MFE were conducted.
A.D.’s parents filed suit against the district board of education, the five members of the board of education and the superintendent, alleging that the district violated the child find provisions of IDEA and failed to complete an IDEA evaluation of A.D.
An administrative hearing was held and an independent hearing officer (IHO) issued a 37-page decision on Nov. 16, 2016. The IHO concluded that: (1) A.D.’s father gave informed consent to conduct a MFE on Dec. 14, 2015; (2) A.D. was not denied educational opportunities; (3) the district did not have knowledge that A.D. was a child with disability at any time prior to Feb. 12, 2016; (4) A.D. is not a child with a disability under IDEA; and (5) the district did not violate its child find requirements with respect to A.D. The parents filed a notice of appeal on Dec. 18, 2016. A state level review officer (SLRO) issued his decision on May 11, 2017. After conducting a de novo review, the SLRO found in favor of the district on all claims.
The district court agreed with the IHO and SLRO on all of the parents’ claims. Regarding the parents’ child find violations, claims that the district failed to identify A.D. as a child with a disability and failure to provide a FAPE, the court concluded that the SLRO's decision is supported by a preponderance of the evidence. In order to qualify for IDEA services, the disability must have an adverse impact on the child's educational performance. In addition, the definition of a child with disability requires not only that the child have one of the enumerated disabilities but also that she needs special education and related services. Academic performance is not the only indicator of a disability for which a student can receive an IEP and student may need special education for impairments that adversely affect their education such as behavior and social and emotional well-being. However, the court found that A.D.’s parents did not offer any evidence that the district should have been aware, prior to Oct. 2015, that A.D. needed special education services due to behavioral, social or emotional issues.
The court dismissed all of A.D.’s parents’ claims that notices were not provided in a timely fashion, that the school failed to consider the evidence the parents provided and that the school failed to explain the evaluation process, identify the tests and assessments it sought to conduct and obtain appropriate consent. The court agreed with the IHO and SLRO that these claims were without merit.
Regarding the parents’ claim that the district improperly terminated A.D.’s IEP evaluations, the court concluded that, by revoking consent for district staff to conduct classroom observations of A.D. or interact with her teachers and formally revoking the father’s written consent, A.D.’s parents prevented district staff from conducting evaluations. The parents did not simply refuse to consent to one service or activity proposed by the district. Instead, they revoked consent for the district to have any access to A.D. or her teachers at her private school, insisting that the district already had enough information to complete its evaluation. The court agreed with the SLRO and IHO that the parents’ actions and attempts to exert complete control over the evaluation process prevented the district from properly conducting the evaluation and, thereby, amounted to a revocation of consent to the evaluation itself.
Finally, the court denied the district’s motion that the parents’ attorney should be liable to the district for attorneys’ fees in this action. It held that the district did not show that the instant action is frivolous, unreasonable or without foundation, or presented for an improper purpose such as to harass, cause unnecessary delay or needlessly increase the cost of litigation.
District court grants summary judgment for board members, superintendent and principal because former school employee, in a case involving harassment by a fellow employee, failed to state a claim.
Sizemore v. Edgewood Bd. of Edn., S.D.Ohio No. 1:19-cv-555, 2019 U.S. Dist. LEXIS 67765 (Apr. 17, 2020).
Leslie Sizemore was a janitor employed by the Edgewood City School District and assigned to work at the Edgewood Middle School from May 24, 2016, through Aug. 10, 2018. Sizemore alleged that, during that time, she was sexually harassed by a fellow janitor, Daniel Benjamin. Benjamin would text Sizemore lewd, offensive and threatening messages and make obscene gestures in her direction. She also alleged that in July 2018, Sizemore sexually assaulted her in a supply closet.
Sizemore reported all of this harassing conduct to her supervisor, Teresa Lewis, and also told the board and Lewis that she did not want to work with Benjamin. Sizemore did not allege that she informed any member of the board why she did not want to work with Benjamin. After the alleged assault, Sizemore notified the Department of Human Resources, on Aug 10, 2018, of that incident, left the building and never returned to work.
Sizemore sued Benjamin, Principal David Slamer in his official capacity, the five members of the Edgewood Board of Education as individuals, and the board of education, alleging: (1) violations of Title VI, asserting discrimination on the basis of sex and sexual harassment; (2) violations of Title VII for retaliation and constructive discharge; and (3) violation of her constitutional rights under 42 USC Sec. 1983. She also raised related claims under state law. All of the defendants except Benjamin filed a partial motion to dismiss Sizemore’s claims.
This group of defendants, as individuals, argued that: (1) Title VII did not impose individual official-capacity liability on them; (2) they were not liable as individuals in their official capacities for discrimination under Ohio law; (3) the Title VII and state law retaliation claims against them failed on the merits; (4) naming them in the 1983 claim in their official capacity was duplicative of the claim against the board, and thus should be dismissed; and (5) the 1983 official-capacity claim against them should be dismissed. The board argued that the Title VII retaliation/constructive discharge claim, state law retaliation/constructive discharge claim and 1983 claim against it should be dismissed.
Sizemore conceded that the official capacity claims against these defendants should be dismissed unless the board is an arm of the state. The court concluded that local school boards are political subdivisions and not an arm of the state and dismissed these claims accordingly.
The court also dismissed Sizemore’s retaliatory discharge/constructive discharge claims against the board, concluding that Sizemore failed to “plausibly allege that the board retaliated against her” and plausibly allege a causal link between any alleged protected activity and any materially adverse action by the board. It dismissed her related state law claims for the same reasons. The court dismissed Sizemore’s Section 1983 claim, because respondeat superior does not apply to Section 1983 claims and Sizemore did not allege misconduct by the board itself.
Supreme Court of Ohio grants a limited writ compelling the elections board to review a petition to transfer territory for placement on the ballot.
State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., 2020-Ohio-339.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-40.pdf
On Oct. 29, 2019, the Plain Local School District received a petition proposing the transfer of property from the village of Hills and Dales to Jackson Local School District. The petition sought to have the proposal placed on the March 17 ballot. Although the school board of the Plain Local School District considered the petition at its next regularly scheduled meeting on Nov. 20, 2019, it did not forward the petition to the elections board, which was the next step in the process established by Ohio Revised Code (RC) 3311.242. The school board instead stated that it would not act on the petition while a lawsuit it had filed challenging the constitutionality of RC 3311.242 remained pending in federal court.
The Supreme Court of Ohio ordered the school board to comply with RC 3311.242, and the board forwarded the transfer petition to the elections board on Jan. 9, 2020, to check the sufficiency of the signatures. On Jan. 13, the elections board confirmed that the petition contained a sufficient number of valid signatures. On Jan. 16, the school board certified the proposal to the elections board, indicating in its certification that the proposal should be placed on the Nov. 3, 2020, general election ballot.
On Jan. 17, the village of Hills and Dales filed a mandamus action seeking to compel the school board to certify the proposal to the elections board, indicating that the proposal should be placed on the March 17 primary election ballot. The village also sought an order compelling the elections board to place the proposal on the March 17 ballot.
The Supreme Court of Ohio granted a limited writ of mandamus ordering the Stark County Board of Elections to review and examine the petition and perform any other duties required by law for the potential placement of the petition on the March 17 ballot. The court found that the school board had no clear legal authority to specify the date of the election at which the proposal should be voted on, so its reference to the Nov. 3 election was “inconsequential and has no binding effect.”
The court also rejected the arguments of the Plain Local School District that the proposal could not be placed on the March 17 ballot because the date of the school board’s certification was well past the deadline established by RC 3311.242, which required the proposal to be placed on the ballot at the next election which “occurs not less than ninety days after the date of the certification.” The court held that it was clear that the school board’s refusal to comply with RC 3311.242(C) was what caused the transfer proposal to be certified to the elections board after the deadline. Because the school board had the opportunity to take the action necessary for the proposal to be placed on the March 17 ballot but declined to do so for reasons outside the scope of its authority, the court found that the proposal was still eligible to appear on the March 17 ballot.