School Law Summary 2021-2
In this issue: Constructive Discharge • Due Process • First Amendment • Retirement • Sexual Assault • Student – Discipline • Taxation • Teacher Termination • Title IX • Transgender Participation
Federal court dismisses former teacher’s claims of constructive discharge and intentional and negligent infliction of emotional distress.
Ritter v. Bd. of Edn., N.D.Ohio No. 3:20-CV-992, 2021 U.S. Dist. LEXIS 79840, F. Supp. 3d (Apr. 26, 2021)
The Arcadia Local School District hired Paula Ritter as a high school science teacher in 2001. She worked at the school for approximately nine years without any accommodations. Ritter claimed a number of physical and mental health conditions that became so severe in 2010 that she could no longer perform her job without accommodations. Ritter approached Arcadia administrators in 2010 and requested accommodations. Arcadia provided the following accommodations: advance notice of scheduled “crisis drills,” permission to arrive up to 10 minutes late to school in the morning and advance notice of issues related to her performance or her students’ performance. Ritter performed her job duties with these accommodations for approximately nine years.
In early 2019, Ritter underwent a surgical procedure. She alleged that after this procedure, Arcadia became suspicious of her need for accommodations. Ritter claimed that Arcadia contacted her doctor without her consent and discussed her medical condition with the office staff. Ritter alleged that Arcadia then refused to continue providing the accommodations it had provided for nine years. Ritter also alleged that Arcadia threatened to revoke her status as an athletic coach, a role that provided her with supplemental income. Ritter claimed that her anxiety and depression worsened as a result of these events, and she resigned in October 2019 because she felt she had no other choice.
The court concluded Ritter’s constructive discharge claim should not be a separate cause of action and should be an element of a prima facie discrimination claim and therefore was dismissed without prejudice to allow her to refile with a discrimination claim. The claim of negligent infliction of emotional distress was dismissed because Ritter didn’t state she witnessed or experienced a dangerous accident or that the defendant placed her in actual physical peril, so that claim failed as well.
Lastly, a claim of intentional infliction of emotional distress under Ohio law must show: (1) the defendant intended to cause emotional distress or knew or should have known that its conduct would result in serious emotional distress to the plaintiff; (2) defendant’s conduct was outrageous and extreme and beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community; (3) defendant’'s conduct was the proximate cause of plaintiff’'s psychic injury; and (4) plaintiff’s emotional distress was serious and of such a nature that no reasonable person could be expected to endure it. The court reviewed the two acts of denying her requested accommodations and contacting her physician without consent, and concluded that, even when taken together, these actions are not extreme and outrageous under Ohio law. So this claim was also dismissed.
Sixth Circuit affirms dismissal of complaint by former board members following Kentucky governor’s executive order abolishing State Board of Education.
Houchens v. Beshear, 6th Cir. No. 20-5644, 2021 U.S. App. LEXIS 7095 (Mar. 9, 2021).
This case is an appeal from a case previously reported in the School Law Summary. On Dec. 10, 2019, Kentucky Gov. Andrew Beshear issued an executive order that abolished the Kentucky State 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. The district court held that the former board members failed to allege a plausible violation of any Kentucky or federal constitutional provisions and dismissed the case.
On appeal, the former board members claimed that the elimination of their positions constituted a violation of their procedural and substantive due process rights. To establish a procedural due process claim, the former board members were required to establish that they had a life, liberty or property interest protected by the 14th Amendment to the United States Constitution. In this case, the court of appeals held that the former board members had no “life, liberty or property” interest in their prior board membership and Beshear lawfully abolished the board as permitted under Kentucky law.
Kentucky law allows the governor to change the makeup and functions of organizational units and administrative bodies when the General Assembly is not in session. The Supreme Court of Kentucky has held that “if the Governor’s power includes the alteration or abolition of any organizational unit or administrative body, that necessarily means that members of the specific board that the Governor has abolished may be removed from their positions.” As a result, the court held that the former board members had no property interest between sessions of the General Assembly in their continued membership on the board of education. Therefore, the former board members had no procedural due process claim as a matter of law.
The court also rejected the argument that the board members’ substantive due process rights were violated. The court held that the Supreme Court did not include the right to maintain public employment as a substantive due process right specifically protected under the 14th Amendment. As a result, the former board members did not assert a liberty interest in their continued membership on the board. The court affirmed the lower court’s decision to dismiss the case, finding that the district court did not have subject matter jurisdiction and the former board members failed to state a claim upon which relief may be granted.
Sixth Circuit affirms summary judgment to a school board in a principal’s wrongful demotion suit as principal’s speech was not protected under First Amendment.
Davidson v. Arlington Community Schools Bd. of Edn., 6th Cir. No. 20-5954, 2021 U.S. App. LEXIS 6119 (Mar. 1, 2021).
Cherry Davidson was principal of an elementary school in Arlington, Tennessee. Davidson’s performance as principal elicited mixed feelings from her colleagues. Some teachers expressed satisfaction with Davidson’s leadership, while others shared complaints that revealed a culture of fear, mistreatment and intimidation.
At the end of the 2017-18 school year, Davidson was demoted. The superintendent for the district advised Davidson that her contract would not be renewed and that she would be reassigned to a teaching position. The superintendent noted that she had based the decision on teacher surveys, end-of-the-year interviews, exit interviews, complaints from parents and the number of teachers who had resigned during Davidson’s tenure.
Davidson claimed she was reprimanded for statements she made regarding a proposed change to the school’s mascot, the Bulldogs. Specifically, in the spring of 2018, the superintendent assembled several committees to create a five-year strategic plan for the district. One committee chair told the superintendent that his committee recommended that all four schools in the district have the same mascot, the Tigers. Because the change would impact Davidson’s elementary school, the superintendent asked the committee chair to speak with Davidson, who disagreed with him. The superintendent then spoke personally with Davidson about the proposed mascot change and suggested that she present her view to the district’s board members.
At a work session of the board of education, Davidson stated she had polled parents and kids to pick the “Buddy the Bulldog” mascot, that Buddy had “become the fabric of our culture” and a source of “pride,” and concluded her presentation by saying, “that's my plea. … I would prefer and I feel like my staff would prefer that you just leave us as bulldogs.” The board agreed to keep the elementary school bulldog mascot. At her deposition, Davidson noted that she had not said anything critical of the superintendent during the work session because “[The superintendent] was my boss. I was not going to be insubordinate.” She also stated that the superintendent had not said anything to suggest she was angry at her for her position on the mascot, but she believed the superintendent was visibly upset.
As a result of these events, Davidson sued the superintendent and the board in state court, alleging a First Amendment retaliation claim and contract-related, state-law claims. The district court granted summary judgment for the district, finding that Davidson’s speech was not constitutionally protected because she spoke at the board meeting as a public employee, not as a private citizen. The court also rejected Davidson’s contract-related, state-law claims.
On appeal, the court of appeals agreed with the district court’s determination that Davidson spoke as a public employee when she presented her views on the proposed change to the elementary school mascot. The court found that the record demonstrated that Davidson’s speech was within her ordinary job responsibilities. The superintendent invited Davidson to speak at the board’s meeting because the school’s mascot was at issue. No plausible reason was offered for why Davidson’s opinion was specifically solicited other than the fact that the board might value her input as principal of one of the schools that would be directly impacted by the mascot change. Davidson’s statements themselves also suggested she was speaking in her capacity as principal; she described polling parents and students to pick the mascot, explained that the mascot was a point of school pride and noted that “her staff” would prefer that the mascot remain unchanged. The court found that the impetus and subject matter of Davidson’s speech favored the finding that she was speaking in her capacity as a principal. As a result, the court found that her speech was not protected under the First Amendment and the district court’s grant of summary judgment was appropriate.
Sixth circuit court concludes that university violated professor’s right to freedom of speech when it disciplined him for refusing, due to sincerely held religious beliefs, to refer to a student using her preferred pronouns.
Merriweather v. Hartop., 992 F.3d 492 (Mar. 26, 2021).
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0071p-06.pdf
At the start of the 2016 school year, the university informed faculty that they were required to refer to students by their preferred pronouns. Meriwether questioned the policy to the chair of his department, who was not receptive to his concerns. In January 2018, Jane Doe, a student in his class, asked Meriwether to address her using female titles and pronouns although, in Meriwether’s opinion, Doe’s outward appearance was male. Meriwether responded that his sincerely held religious belief prevented him from communicating messages about gender identity that he believed were false. The student became hostile, approached Meriwether in a threatening manner and referred to him using a derogatory term for women.
Meriwether reported the incident to senior university officials, including the dean of students and his department chair, who informed their Title IX office of the incident. Officials from that office met with Doe and escalated Doe's complaint to the acting dean of the college of arts and sciences. The dean advised Meriwether to eliminate all sex-based references from his expression. Meriwether offered a compromise that he would continue to use pronouns and titles in class except with the student involved, to whom he would refer using her last name. Doe was dissatisfied and complained again. At that time, the dean advised Meriwether to address Doe as a woman or be in violation of the university’s policy. Meriwether proposed other accommodations, including continuing to refer to Doe as Doe and explaining his position in his syllabus, which were not accepted by the university. Ultimately, the university launched a formal investigation because it had received another complaint from Doe. Meriwether asked whether an accommodation might be possible given his sincerely held beliefs but was denied.
The university’'s Title IX staff conducted what the court described as “a less-than-thorough” investigation. The office concluded that Meriwether’'s disparate treatment of Doe had created a hostile environment in violation of the university’'s nondiscrimination policies. The report did not mention Meriwether’'s request for an accommodation based on his sincerely held religious beliefs. The dean recommended disciplining Meriwether by placing a formal warning in his file. The matter was reviewed by the university’s provost along with a letter from Meriwetherhat explained his religious convictions, asked the provost to allow reasonable minds to differ and requested an accommodation. The provost approved the dean’s recommendation of formal disciplinary action and did not address Meriwether’s arguments or request for accommodation. The letter placed in Meriwether’s file reprimanded him, directed him to change the way he addressed transgender students and warned of possible further corrective actions including suspension without pay and termination.
The university’s faculty union filed a grievance on Meriwether’s behalf, asking that the university vacate the disciplinary action and allow Meriwether to speak in a manner consistent with his religious beliefs. The provost denied the grievance. The union representative asserted that the provost was so hostile that he was unable to present Meriwether’s grievance. The next step in the grievance process involved an appeal to the university’s president, who was the provost recently promoted to interim president. He designated the labor relations director and general counsel to meet with Meriwether and the union representative. While the two officials agreed with the union that Meriwether’'s conduct had not created a hostile educational environment, they recommended ruling against Meriwether anyway on the theory that he engaged in differential treatment of Doe. The interim president (former provost) denied Meriwether’s appeal.
Meriwether filed a lawsuit against the university, alleging that it violated his rights under: (1) the Free Speech and Free Exercise Clauses of the First Amendment; (2) the Due Process and Equal Protection Clauses of the 14th Amendment; (3) the Ohio Constitution; and (4) his contract with the university. Doe and an organization called Sexuality and Gender Acceptance moved to intervene, and the magistrate granted their motion. The magistrate recommended dismissing all of Meriwether’'s federal claims and declining to exercise supplemental jurisdiction over his state-law claims. Although Meriwether objected to the magistrate’'s report and recommendation, the district court adopted it in full. Meriwether appealed the district court’s decision except for its dismissal of his equal protection claim.
Regarding Meriwether’'s free speech claim, the circuit court concluded that, under controlling Supreme Court and Sixth Circuit precedent, the First Amendment protects the academic speech of university professors. Since Meriwether has plausibly alleged that the university violated his First Amendment rights by compelling his speech or silence and casting a pall of orthodoxy over the classroom, the circuit court concluded that his free speech claim could proceed.
The circuit court stated that government may not “compel affirmance of a belief with which the speaker disagrees.” But when government employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline (Garcetti v. Ceballos, 547 U.S. 410 (2006)).
However, the court analyzed a series of cases establishing that the First Amendment does protect the free-speech rights of professors when they are teaching, as a measure to protect academic freedom when professors are engaged in “core academic functions” such as teaching and scholarship. A university can restrict professors’ in-class speech only when its interest outweighs the teachers’ interests in speaking. The court stated that, without this protection, universities would “wield alarming power to compel ideological conformity.” The court noted that the Fourth, Fifth and Ninth Circuit Courts have reached the same conclusion.
The court considered, and rejected, each of the university’s arguments in favor of its actions. Of specific note, the court stated that the academic freedom exception applies to a professor’s choices about how to lead academic instruction, because they shape the content of instruction enormously. It stated: “By forbidding Meriwether from describing his views on gender identity …, [the university] silenced a viewpoint that could have catalyzed a robust and insightful in-class discussion. … Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints [citations omitted.] The academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not.”
The court then considered whether Meriwether had plausibly alleged that his in-class speech was protected by the First Amendment. It concluded that Meriwether was speaking on “a matter of public concern” and that his interest in doing so was greater than the university’'s interest in promoting the efficiency of the public services it performs through him. As a result, the court concluded that the university’s actions violated Meriwether’s First Amendment freedom of speech.
The court also agreed that, by disciplining Meriwether for not following the university’s pronoun policy, the university violated the First Amendment Free Exercise Clause. Its policies were neither neutral nor generally applicable, and university officials exhibited hostility toward Meriwether’s religious beliefs.
Finally, the court affirmed the district court’s conclusions on Meriwether’s due process claim, concluding that he had not alleged sufficient facts to establish that the university’s policy was vague or that the policy allowed for arbitrary and discriminatory enforcement. It also vacated the district court’s dismissal of Meriwether’s state law claims and remanded the remaining matters to the district court for further proceedings.
Ohio court of appeals overturns magistrate’s decision relating to STRS’s calculation of retirement credit for North Bass school superintendent.
State ex rel. Anderson v. State Teachers Retirement Sys. Bd., 2021-Ohio-1378.
https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2021/2021-Ohio-1378.pdf
North Bass Local (Ottawa) School District operates no schools and employs no instructional staff but is required by statute to employ a superintendent. The small number of students that live on North Bass Island attend schools in different districts, and the superintendent’s role is “on call.” Dr. Bart Anderson served as the school superintendent of North Bass Local from 1996 through 2015, but also held fully paid positions with other State Teachers Retirement System (STRS) employers from the years 1996 through 2013. Anderson’s contract with North Bass Local awarded him salary compensation at a rate of $1 per month for his service and provided that all contributions for STRS be picked up by the board on the salary listed in the contract and for future amendments, and those contributions “shall be included in the Superintendent’s salary for STRS purposes.”
The only years at issue in this case are the 2013-14 and 2014-15 school years. During those years, the only STRS-eligible position Anderson held was as North Bass Local superintendent. For each of those years, STRS calculated Anderson’s retirement credit to be 0.01 years of service, as opposed to 1 year of service. The North Bass Local School Board adopted a resolution that the STRS credit was a material term of its service contract, and it was “the Board’s determination that Dr. Anderson provided services to the board as its superintendent every day of the [2013-14 and 2014-15] school year, 365 days [per year], as required by RC 3319.01.” The North Bass Local School Board took the position that the retirement days are crucial to attracting candidates for its statutorily required superintendent position, because it operates in such a remote area. However, STRS refused to recalculate Anderson’s service credit. Anderson filed a writ of mandamus.
After submission of stipulated evidence by both parties, the case was argued and submitted to a magistrate. The magistrate concluded that STRS did not fully consider the evidence and took “improper notice of relator’s compensation during the disputed periods.” The magistrate found that Anderson was “of service” to North Bass Local for 365 days per school year under his contract and should receive corresponding service credit. STRS appealed the magistrate’s decision.
On appeal, the court found that the magistrate failed to give due deference to STRS’s interpretation of its own statute and administrative rules. The court found “some evidence” that supported STRS’s decision that the arrangement between North Bass Local and Anderson was ultimately a way to shift the cost of its statutorily mandated superintendent onto STRS, and the court did not believe that the evidence presented supported the magistrate’s conclusion that Anderson was “of service” to the district for all 365 days of the years in question. As a result, the court concluded that the magistrate’s decision was erroneous, that the respondent’s objections should have been sustained, that the relator’s petition was without merit and that the writ should be denied.
The majority of plaintiff’s claims survive judgment on the pleadings, specifically against the former principal’s challenge of immunity.
Noble v. YMCA, S.D.Ohio No. 2:19-cv-5094, 2021 U.S. Dist. LEXIS 28962 (Feb. 17, 2021)
https://casetext.com/case/noble-v-young-mens-christian-assn-of-cent-ohio
The plaintiff was eight years old and a student at Fair Alternative Elementary School, and he was participating in various classes, summer programs, camps and field trips. Defendant Ralph Bowman was either a teacher or aide with responsibility for children. On July 24, 1998, the plaintiff and the other children were scheduled to visit a library near Fair Alternative Elementary. However, Bowman brought the plaintiff to his elementary school office for snacks then to Bowman’s house across the street where Bowman sexually assaulted the plaintiff.
On Oct.17, 2019, the plaintiff filed suit against the Young Men's Christian Association of Central Ohio, Ralph Bowman, the Columbus City Schools Board of Education, Columbus City Schools, Principal Cynthia Ball, John Bickley and Visions Unlimited Academy. The complaint includes seven claims against the various defendants: childhood sexual abuse; negligent hiring, retention and supervision; intentional infliction of emotional distress; negligence; negligence per se; Title IX violations; and the violation of due process.
All defendants submit that they are entitled to judgment on the pleadings on all counts because the plaintiff alleged legal conclusions that are unsupported by specific factual allegation. The court disagreed.
The court concluded Columbus City Schools was to be dismissed because the board, not the school district itself, is the proper party capable of being sued. Judgment on the pleadings was also granted for violations of due process and negligence per se, as well as intentional infliction of emotional distress. Political subdivisions are normally immune from intentional torts such as intentional infliction of emotional distress. Here, the plaintiff pled all five exceptions to immunity, but the court stated none of the exceptions applied and the claim fails.
The court concluded that the claims against Ball could proceed because the court stated it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity. Further, the plaintiff plead that Ball plausibly knew of Bowman’s propensity and never took any action. Therefore, the court permitted all claims against Ball to continue to the next phase.
Appeals court upholds trial court’s decision that a family’s appeal of their child’s 10-day suspension is moot because it is not capable of repetition or of general public interest.
Stanford v. Northmont City Schools, 2021-Ohio-872.
http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2021/2021-Ohio-872.pdf
J.S. was a student at Northmont High School in the Northmont City School District. On Feb. 19. 2019, J.S. arrived at school late. A staff member noted that J.S. smelled like marijuana when he arrived. The assistant principal, Chad Kaltenbach, removed J.S. from his first-period study hall in order to confirm whether he smelled like marijuana and determine whether he had marijuana. J.S. was searched but had no marijuana in his possession. J.S. was suspended for violating the school’s policy against students arriving with the odor of marijuana on his person and received a 10-day suspension.
During his suspension, J.S.’s parents removed him from Northmont City School and enrolled him in Vandalia-Butler City Schools. J.S. and his parents appealed the suspension to Northmont City’s appeal designee and were allowed to present a defense to the suspension. After the suspension was affirmed, the family appealed to the Montgomery County Court of Common Pleas.
The trial court affirmed the suspension, finding that any issues with respect to J.S.’s suspension were moot because he was no longer a student at Northmont High School. The trial court also found that Kaltenbach’s search of J.S. was justified because of the individualized suspicion of the odor of marijuana on J.S. Finally, the trial court found that there had been a sufficient factual basis for J.S.’s suspension.
The appeals court reviewed the trial court’s decision to determine whether the court abused its discretion in finding that the administrative order was supported by reliable, probative and substantial evidence. J.S. and his family contended that the trial court erred when it found that their appeal of the suspension was moot because J.S. was no longer enrolled at Northmont High School and because the case did not involve a matter of great general interest.
The appeals court affirmed the judgment of the trial court on the issue of mootness, finding that it had not abused its discretion. It stated that Ohio courts have exercised judicial restraint in cases that are not actual controversies, including when a case has been rendered moot by an outside event, except in two situations. First, a case is not moot if it is capable of repetition, yet evading review. Second, a case is not moot if it involved a matter of public or great general interest. The appeals court found that neither of these exceptions applied.
Regarding school suspensions, courts have stated that short school suspensions present unique difficulties because they are typically served long before the court action is resolved. However, justice is poorly served when administrators fail to comply with due process requirements. In this instance, the court concluded that the first exception did not apply because J.S. and his family did not file an appeal until approximately two months after J.S. had served the 10-day suspension. They could have requested a stay of his suspension pending their appeal, but they did not. Further, because J.S. is no longer a student at Northmont City, and his siblings are not of school age, the matter is not capable of repetition.
The court also concluded that this appeal did not involve a matter of public or great general interest. While the authority of local school boards to make rules and regulations is of “great general interest,” the family did not challenge Northmont City’s rules or its ability to make rules regarding the governance of the student body. They only appealed J.S.’s suspension, arguing that J.S.’s suspension was not supported by sufficient evidence, which does not involve a matter of public or great general interest.
Because of its decision on the mootness issue, the appeals court also concluded that it did not need to address the merits of the family’s other assignments of error.
Ohio court of appeals affirms decision of board of tax appeals that greenhouses should be treated as personal property and excluded from property valuation.
Viola Assocs., LLC v. Lorain Cty. Bd. of Revision, 2021-Ohio-991.
https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2021/2021-Ohio-991.pdf
Viola Associates LLC and Green Circle Growers Inc. are the owners of property located in Camden Township, Ohio. The property consists of approximately 186 acres of land and includes a single-family home and facilities associated with Green Circle’s commercial horticulture business, including large greenhouses.
The Ohio Board of Tax Appeals (BTA) issued a decision concluding that the greenhouses should be treated as personal property and excluded from the valuation of the real property. The Firelands Local (Lorain) Board of Education and Lorain County Board of Revisions appealed. The primary issue on appeal was whether the greenhouses located on the subject property should be treated as real property and included in the assessment of the real property value or be treated as personal property that would be excluded from the subject real property’s value for purposes of taxation.
On appeal, the court affirmed the judgment of BTA. The court disagreed with the Firelands Local Board of Education’s argument that BTA erred by determining that the subject greenhouses were “business fixtures” under Ohio Revised Code 5701.03. Under that statute, “business fixtures” are defined as “an item of tangible personal property that has become permanently attached or affixed to the land or to a building, structure, or improvement and that primarily benefits the business conducted by the occupant on the premises and not the realty.” If structures constitute “business fixtures,” they are treated as personal property and excluded from the valuation of the real property for purposes of taxation.
The court stated that the determinative question focused on whether the greenhouses were devoted primarily to the business conducted on the premises or whether they were devoted primarily to the use of the land upon which the business was conducted. Prior case precedent from the Ohio Supreme Court (Funtime, Inc. v. Wilkins) asked whether there was evidence that the structure would “be of any benefit to a buyer of the land who engaged in a different business.” BTA and the court of appeals found that the greenhouses primarily benefited the property owner’s horticulture business and would provide little value, if any, to another occupant of the land who was not engaged in the same or very similar business.
The Firelands Local Board of Education also cited an information release by the Ohio Tax Commission from 2007. The purpose of the release was to provide guidance regarding the proper classification of certain business assets. It enumerated types of property to be classified as either personal property or as real property and states that “greenhouses attached to permanent foundations” should be classified as real property. The court found that this release did not have any precedential value, did not have any “force of law” and did not create any legal obligations.
District court dismisses claims filed against district by former teacher fired for cause after 38 days but also dismisses district’s motion to declare him a vexatious litigator.
Watkins v. Columbus City Schools, S.D.Ohio No. 2:20-cv-2552, 2021 U.S. Dist. LEXIS 56475 (Mar. 25, 2021).
Stanley Watkins was hired by the Columbus City School District as a special education teacher in August 2015. Watkins was removed from the classroom on Oct. 25, 2015, after he improperly restrained one of his kindergarten students with disabilities. During the 38 days Watkins worked, the district became concerned about his ability to teach and control his class, maintain professional relationships with teaching assistants and ensure the safety of his seven students. On several occasions, Watkins was also observed sleeping in the classroom and at school meetings.
Following a pre-disciplinary hearing at which Watkins was represented by two attorneys and a union representative, the district determined in April 2016 that it would terminate Watkins’s employment for cause. Watkins requested an Ohio Revised Code (RC) 3319.16 hearing before a referee. After his attorneys resigned on Jan. 6, 2017, Watkins has represented himself in all proceedings. After an 11-day hearing, the referee recommended that the district terminate Watkins’s contract, finding that the district had good and just cause. The district terminated the contract on June 20, 2017.
Watkins petitioned the Franklin County Court of Common Pleas to review the district’s decision, alleging 27 errors, including a claim that his sleeping was caused by apnea and should have been accommodated. The court upheld the firing. Watkins appealed to the Tenth District Court of Appeals, which upheld the district’s ruling and determined the common pleas court did not abuse its discretion.
Watkins then turned to the federal courts, alleging due process violations under 42 United States Code 1983 against the district. The district filed a motion to dismiss, which the court denied (SLS 2019-3). In March 2020, the court granted judgment on the pleadings to the district. Watkins unsuccessfully appealed and filed this case alleging a hostile work environment, disparate treatment and retaliatory discharge. The district filed a motion to dismiss and a motion to have Watkins declared a vexatious litigator.
The court concluded that Watkins failed to state a claim related to his race, color, religion, sex or national origin, and dismissed his hostile work environment claim. It also dismissed Watkins’s disparate treatment claim because he failed to allege any facts supporting his allegation that he was treated differently from similarly situated members of an unprotected class. Finally, the court dismissed Watkins’s claim that he was fired in retaliation for complaining about the services provided to his special education students. The court concluded that this claim failed because kindergarten students are not employees or applicants for employment and Watkins had not alleged that they were subject to discrimination on the basis of race, color, sex or national origin.
Watkins also filed a claim that he was dismissed in violation of the Americans with Disabilities Act because of his sleep apnea. The court dismissed the claim because it had already been litigated before the referee and the Ohio court of common pleas. Watkins also alleged constructive slavery in violation of the 13th Amendment. The court found that this claim was barred by the statute of limitations. The court dismissed all of Watkins’s claims of violations of state law for failure to state a credible claim, and then added the following blanket dismissal: “To the extent that this Court has not addressed any claims that Watkins understood his Complaint to contain, those claims are dismissed for failure to state a claim, as they are insufficiently pleaded to provide notice under Rule 8 of the Federal Rules of Civil Procedure.”
Finally, regarding the district’s request to declare Watkins a vexatious litigator, the court concluded that, while his filings have become increasingly vexatious, it would give Watkins one warning before declaring him a vexatious litigator. If he filed another case against the district in the court or attempted to litigate new claims using this case, the court stated that it would declare him a vexatious litigator.
Court upholds teacher termination when administrative appeal is not filed in a timely manner.
Vukovic-Burkhardt v. Dayton Bd. of Edn., 2021-Ohio-739.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2021/2021-Ohio-739.pdf
Vukovic-Burkhardt was a classroom teacher in the Dayton City Schools. Early in the 2018-19 school year, she reportedly called administrators a derogatory name in front of students, spoke about her personal life while on the phone in front of her students, used Facebook during instructional time, regularly yelled at and berated her students. and engaged in other inappropriate behavior. As a result, the board decided to fire her. In April and June 2019, a referee conducted a hearing on the board’s decision, afterward filing a report finding good and just cause for terminating Vukovic-Burkhardt’s teaching contract and recommending that the board do so. On Sept. 17, 2019, the board accepted the referee’s recommendation and passed a resolution terminating her teaching contract.
Vukovic-Burkhardt’'s attorney requested a copy of the board’s resolution, and the attorney for the board emailed a copy of the three-page resolution to her attorney on Sept. 20, 2019. That copy of the resolution detailed the board’s decision and indicated it was passed by a 7-0 roll call vote at a meeting of the board on Sept. 17, 2019, and was signed by the treasurer. Vukovic-Burkhardt herself separately received a copy of the resolution six days later that was sent to her by the board.
On Oct. 26, 2019, Vukovic-Burkhardt filed a complaint against the board and others that contained, among other claims, an administrative appeal of the decision to terminate her teaching contract. The board moved for judgment on the pleadings as to the administrative appeal, arguing that the appeal was untimely under Ohio Revised Code (RC) 3319.16, having been filed more than 30 days after she received notice of the board’'s decision. The trial court agreed, and on July 24, 2020, it dismissed the administrative appeal for lack of jurisdiction. Vukovic-Burkhardt then appealed, asserting that the trial court committed error by dismissing her administrative appeal.
The court started its analysis by noting that RC 3319.16 governs the termination of a teaching contract by a board of education and establishes the procedures that must be followed. That statute provides that a teacher may administratively appeal a school board’'s order to terminate a teaching contract to the court of common pleas “within thirty days after receipt of notice of the entry of such order.” The court found the question in this situation is whether receipt of a copy of the board’s resolution by a teacher’s attorney starts the clock running or whether receipt of notice of such an order must be by the teacher herself. Since RC 3319.16 is silent on this question, the court looked to the general rules governing administrative appeals found in RC Chapters 2505 and 2506.
Under RC 2505.07, a party has 30 days “[a]fter the entry of a final order” to file an administrative appeal. This court has held that the 30-day period begins to run when the final decision is mailed 0“o the party or his legal representative” (emphasis added). Here, Vukovic-Burkhardt’s attorney received notice of the board’'s final decision and a copy of the resolution terminating her contract on Sept. 20, 2019. It was not until 36 days later, on Oct. 26, that the same attorney filed Vukovic-Burkhardt’s notice of appeal in the common pleas court. By that time, her statutory time to file an administrative appeal of the board’s decision had expired, so the trail court’s judgment was upheld.
Court determines Title IX claims against school district and its employees in their official capacity, while technically redundant, can proceed.
Doe v. Springboro Cmty. City Sch. Dist. Bd. of Edn., S.D.Ohio No. 1:19-cv-785, 2021 U.S. Dist.
LEXIS 73227 (Apr. 15, 2021).
The parents/guardians of 31 elementary school students filed suit against John Hopkins, Carrie Corder, Daniel Schroer and the Springboro Community City School District Board of Education. Hopkins was a physical education teacher at the district’s Clearcreek Elementary School, while Corder was the principal of Clearcreek Elementary School and Schroer was the superintendent of Springboro Community City Schools during the 2018-19 school year.
The plaintiffs allege that during the 2018-19 school year, Hopkins sexually abused numerous first-grade students in the Clearcreek Elementary School gymnasium and that, despite actual/constructive knowledge of Hopkins’s conduct, Corder, Schroer and the board did not take appropriate steps to stop him.
The plaintiffs’ Second Amended Complaint asserts six counts against defendants: (I) a Title IX claim against Springboro Schools, Schroer, Corder and Hopkins in their official capacities; (II) a Sec. 1983 claim against Springboro Schools, Schroer, Corder and Hopkins in their official and individual capacities; (III) a “reckless supervision/ failure to monitor, discover, and report” claim against Corder; (IV) an assault and battery claim against Hopkins; (V) an intentional infliction of emotional distress claim against Hopkins; and (VI) an injunctive relief claim against Springboro Schools.
Plaintiffs sought an award of compensatory damages, punitive damages and various injunctive remedies, but did not specify against which defendants they sought punitive damages. The defendants responded by making a motion to dismiss based on two arguments: (1) the Title IX claims against Schroer and Corder in their official capacities should be dismissed because they are redundant and duplicative of the plaintiffs’' Sec. 1983 and Title IX claims against Springboro Schools; and (2) the plaintiffs’ request for punitive damages from either: (a) Springboro Schools; (b) Schroer in his official capacity; or (c) Corder in her official capacity should also be dismissed. The plaintiffs subsequently conceded that they were not entitled to seek punitive damages against any of these three defendants.
Addressing the redundancy claims, the court noting that, when a complaint asserts both a claim against a public employee in his official capacity and a claim against the public entity that employs him, the official capacity claim is, in a technical sense of the term, “redundant.” This is because a claim against a public employee in his official capacity is the equivalent of a claim against the public entity. However, the Sixth Circuit has never required the courts in that circuit to dismiss official capacity claims on the basis of redundancy. At this early stage in the proceedings, the court declined to hold that redundancy alone was a sufficient basis for the claim’s dismissal. As a result, only the punitive damages claim against the defendants were dismissed.
District court concludes that Title IX claims brought by adult former students are not time barred provided that they are brought within 12 years after the students turn 18.
Doe v. Cleveland Metro. School Dist. Bd. of Edn., N.D.Ohio No. 1:20-cv-01695, 2021 U.S. Dist. LEXIS 68986 (April 9, 2021).
Terrence Greene worked as an independent contractor artist in resident for the Cleveland School for the Arts (CSA) from 1999 for approximately 15 years. During that time, Greene taught dance to students in sixth through 12th grade. During that time, he travelled with students to dance performances and stayed in hotel rooms with them.
In 2002, Greene was indicted on four counts of unlawful sexual conduct with a minor who was one of his students. While those charges were pending, Greene took a leave of absence from CSA. He was acquitted of all charges in July 2004.
In 2020, eight former CAS students filed suit against the school district and four CSA administrators (district defendants). The students alleged that Greene had sexually assaulted and abused them while he worked for the district and that the district had failed to conduct a proper investigation of allegations made against Greene, including the allegations that led to criminal charges in 2002, in violation of Title IX of the Education Amendments Act of 1972. The former students also allege that Greene’s predatory and abusive conduct continued unabated for 15 years and that Greene repeatedly sexually assaulted the students after he returned to school in 2004. The former students allege that they did not come forward with their allegations because of humiliation, fear and embarrassment.
In addition to the Title IX claims seeking declaratory relief and compensatory damages, the former students brought state law claims against the district defendants for negligence, intentional infliction of emotional distress and negligent hiring, supervision and retention, seeking compensatory and punitive damages. The students also brought claims of sexual assault and battery against Greene. Because Greene had failed to appear, the court granted the plaintiffs’ motion for a default judgment against him.
The district defendants moved the court to dismiss all the claims against them. To survive a motion to dismiss, the complaint must raise a right to relief above the speculative level into the realm of plausible liability. In assessing plausibility, the court must construe factual allegations in the complaint in the light most favorable to the plaintiffs, accept the allegations as true, and draw all reasonable inferences in the plaintiffs’ favor.
Regarding the plaintiffs’ Title IX claims, the district defendants argued that the claims are time barred. Because Title IX does not provide a statute of limitations, the court borrowed the applicable limitation period from the most analogous available under state law. Under Ohio law, the cause of action for victims of child sexual assault accrues when the victim turns 18 and must be brought within 12 years after that date (Ohio Revised Code (RC) 2305.111, 2305.16 and 3109.01). The court concluded that all the plaintiffs in this case had filed their claims within the applicable statute of limitations. It denied the district defendants’ motion to dismiss these claims because they were not time barred.
Regarding the state law claim against the district, the district defendants argued that the district is immune under Ohio law. The court dismissed this claim, agreeing that the district was immune. Although the court stated that one of the five exceptions to immunity might have applied, the plaintiffs had not argued that exception and, accordingly, waived their opposition to dismissal of the claim.
Regarding the state law claim of negligence against the district employees, the district defendants argued, again, that they have immunity from liability and that none of the exceptions to immunity applied to them. The court stated that the only potentially applicable exception was RC 2744.03(A)(6)(b), if the employees acted with malicious purpose, in bad faith or in a wanton or reckless manner. It concluded that the plaintiffs had “barely” included sufficient specific detail to raise their claims of negligence against the individual defendants above the speculative level and state a plausible claim for relief. The court declined to dismiss this complaint.
The court granted the district defendants’ motion to dismiss the plaintiffs’ claims for intentional infliction of emotional distress against the district employees. The court concluded that the plaintiffs’ complaint contained no allegation that any plaintiff suffered serious mental anguish of a nature that no reasonable person could be expected to endure.
Court denies claim that permitting transgender girls to participate in track events denies cisgender girls a fair opportunity to compete in violation of Title IX.
Soule v. Connecticut Assn. of Schools, Inc., Case D.Conn. No. 3:20-cv-00201-RNC (Apr. 25, 2021).
https://law.justia.com/cases/federal/district-courts/connecticut/ctdce/3:2020cv00201/137997/178/
In February 2020, Selina Soule and Chelsea Mitchell, then high school seniors, and Alanna Smith, then a high school sophomore, brought this action seeking an injunction to prevent transgender girls from competing in events scheduled to take place during the 2020 spring outdoor track season. Plaintiffs alleged that without a preliminary injunction, they would continue to face unfair competition by two transgender students, Andraya Yearwood and Terry Miller, then high school seniors. Plaintiffs claimed that by permitting “male-bodied athletes” – defined as “individuals with an XY genotype” – to compete in girls’ track, the defendants were denying them an opportunity to compete for places on the victory podium in violation of Title IX and 34 C.F.R. 106.41(c).
Prior to filing this action, the plaintiffs had filed a complaint with the U.S. Department of Education’s Office for Civil Rights (OCR). OCR investigated, but took no action to prevent Yearwood and Miller from competing. The present suit was then filed with the plaintiffs requesting immediate relief, arguing they will continue to suffer irreparable harm because their personal experience in high school athletics will be substantially injured and their season marred. The complaint also named five different high schools that were attended by the parties and who were covered by the same Connecticut Interscholastic Athletic Conference’s (CIAC) transgender participation policy.
However, before the plaintiffs’ motion for a preliminary injunction could be filed, Connecticut declared a public health emergency in response to the COVID-19 pandemic. School buildings were closed statewide and athletic competitions were suspended indefinitely. Soule and Mitchell graduated during the pendency of the proceedings, and the defendants made a motion to dismiss. The court concluded that the original request to enjoin enforcement of the CIAC transgender participation policy became moot once Yearwood and Miller graduated. Since there was no indication that the remaining plaintiffs would encounter competition by a transgender student in a CIAC-sponsored event next season, the court concluded that they lacked a legally cognizable interest in seeking to enjoin enforcement of the CIAC policy. However, if a transgender student did register to compete in girls’ track in next season, the court held that plaintiffs would then be able to file a new action under Title IX along with a motion for a preliminary injunction and a request for an expedited hearing. The court also found that monetary damages were barred in this situation and the plaintiff’s theory of redressability was not sufficiently supported by any of the plaintiffs who still had standing.