School Law Summary 2016-1
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In this issue: Discrimination — Disability • Discrimination — Employment • Discrimination — Equal Protection • Discrimination — Individual Liability • Due Process • First Amendment - Retaliation • Individual with Disabilites Act – Attorneys’ Fees • Individual with Disabilites Act • Racial Discrimination And Retaliation • Sex Discrimination • Sexual Abuse And Harassment • Taxation • Teacher Evaluations • Title VII • Title VII — Reverse Racial Discrimination • Title IX
Sixth Circuit finds teacher’s ADA and FMLA claims fail due to her inability to perform essential job functions.
Belasco v. Warrensville Heights City School Dist., 86 F.Supp. 3d 748 (N.D.Ohio 2015)
https://www.gpo.gov/fdsys/pkg/USCOURTS-ohnd-1_13-cv-00546/pdf/USCOURTS-ohnd-1_13-cv-00546-0.pdf
Norma Belasco taught gifted students in the Warrensville Heights City School District for six years. She was assigned to a regular fourth-grade classroom for the 2011-12 school year due to funding cuts that forced closure of the district’s gifted program. By this time, Belasco had serious health problems, causing her shortness of breath, cramps in her limbs, balance problems and fatigue and requiring her to sometimes use a walker. Her transfer to the fourth-grade classroom did not go well, and Belasco conceded that her “class was not controlled properly.”
Belasco requested that some of the children in her classroom be placed in another classroom. In a deposition, she discussed the connection between her inability to manage her classroom and her alleged disability. Several school employees also testified to Belasco’s inability to control her classroom and her frequent absences and tardiness. Around the same time, the district began requiring teachers to implement the “Action 100” program as an initiative to improve student performance. The program was considered an essential function of every teacher’s job. Defendant’s believed that Belasco was not implementing the program as required, and suspected that she was falsifying entries in her grade book.
On December 19, 2011, the district held a pre-disciplinary hearing. Following the hearing, Belasco was directed to attend a fitness-for-duty examination, which she underwent on January 10, 2012. She failed the test. On January 18, 2012, Belasco was notified of the district’s determination that she was unable to perform the essential functions of her job and unable to return to work. At this time she was placed on paid administrative leave. At her request, she underwent a second fitness-for-duty examination the following month, which she also failed.
At a subsequent hearing, Belasco requested that she receive two accommodations: assignment of a teaching aide to her classroom and the use of a walker. The District agreed to allow her the use of a walker if her doctor could certify that using a walker would enable her to perform the essential functions of her job. The district refused to provide a part-time teaching aide stating that ADA and Ohio law “do not require employers to accommodate employees by shifting essential work functions to others.”
In July 2012, the Board terminated Belasco. She filed a complaint alleging that defendants failed to accommodate her disability and also failed to reinstate her at the end of her leave and inform her of her eligibility for leave or her rights under the Family and Medical Leave Act (FMLA). Defendants moved for summary judgment, which the district court granted. Belasco appealed.
On appeal, the Sixth Circuit considers granting summary judgment to defendants. First, considering Belasco’s claim that defendants failed to accommodate her disability. The court noted that the plaintiff bears the burden of showing she is disabled, and that she is “otherwise qualified” for the position, either without accommodation, with a proposed reasonable accommodation, or with a disputed “essential” job requirement eliminated. The employer then bears the burden of proving that the challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship to the employer.
The court noted that even if it assumed that Belasco was disabled, she could not carry her burden of showing that she was able to safely and substantially perform the essential functions of her job, with or without reasonable accommodation. There was no genuine question of material fact that Belasco could not perform essential functions of her job without some kind of accommodation. She failed to show how a walker would have allowed her to correct her other performance issues. The court also found that a teacher’s aide would not have been a reasonable accommodation since ADA does not require employers to accommodate individuals by shifting an essential job function to others.
To her disability claim, the court applied a burden-shifting framework. Under the framework, plaintiff must demonstrate that:
1) she is disabled;
2) she was otherwise qualified for the position, with or without a reasonable accommodation;
3) she suffered from an adverse action;
4) the employer knew or had reason to know of her disability and
5) she was replaced or the job remained open.
Once the plaintiff proves the aforementioned items, the defendant must then offer a legitimate nondiscriminatory reason for the adverse employment action. If the employer can do so, the burden shifts to the employee to show either that the proffered reasons had no basis in fact, did not actually motivate the employee’s discharge, or were insufficient to motivate discharge.
The court found that Belasco’s claim failed because she failed to make a prima facie case of disability discrimination since she couldn’t show that she could perform the essential functions of her job without a reasonable accommodation, and she did not request an accommodation that was reasonable.
Finally, the court found that Belasco’s FMLA claim failed because she never requested FMLA leave, and the district demonstrated that she had not worked enough hours to be eligible for FMLA leave. Therefore, the court affirmed the judgment of the district court.
District court finds genuine issue of fact precluding summary judgment in employee’s USERRA claims.
Weaver v. Madison City Bd. of Edn., N.D.Ala. No. 5:11-cv-3558-TMP (Dec. 23, 2015)
http://www.justice.gov/sites/default/files/crt/legacy/2012/12/11/weaverndala.pdf
Plaintiff Michael Weaver was employed as Executive Director of Finance and Business by Madison City Board of Education in 1998. Plaintiff alleged this position was similar to that of the superintendent, and reported directly to the superintendent. Defendant disagreed and stated that the position reported to the assistant superintendent, which is reinforced by the Board’s organizational chart, in which the plaintiff’s position reports to the assistant superintendent.
Plaintiff also alleged that he received pay raises similar to those of the superintendent. Defendant stated that some of the raises in question were mandated by state law. Alabama enacted a statute requiring all school districts to have a Chief School Financial Officer (CSFO). In addition to his director duties, plaintiff also was named CSFO. Beginning in 2005, several employees filed complaints against the plaintiff alleging harassment and hostile work environment. As a result, plaintiff was disciplined. In September 2005, plaintiff who is a member of the United States Army Reserve was called to active duty. While plaintiff was away on active duty, Alabama enacted the School Fiscal Accountability Act, which created additional requirements for the CSFO position.
In February 2007, plaintiff gave notice of his return from active duty. When he returned, plaintiff filed grievances alleging his duties had been spread among other staff members, and that he was being excluded from other situations. The superintendent found most of the matters not grievable, but took action to correct some of the matters raised by plaintiff.
In July 2007, the superintendent recommended a plan to the board for reorganization of the central office staff. At this time, plaintiff’s title was changed to CSFO, consistent with the mandate of the new state law. Plaintiff’s physical office was changed as a part of the central office staff reorganization. Additionally, since 2006, defendant eliminated discretionary pay raises, resulting in no employees receiving bonuses since 2006.
Here, due to plaintiff’s military service, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) applied. USERRA prohibits employment discrimination on the basis of an employee’s membership and service in the uniform services of the United States and establishes certain reemployment rights following such service. To establish a case under USERRA, an employee must show that his protected status was a motivating factor in his employer’s decision. Once an employee has met his burden, the employer must then prove that the same action would have been taken despite the employee’s protected status.
Reemployment under USERRA also takes into consideration the “escalator” principle, which requires the employee be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority and other job prerequisites that the employee would have attained, if not for his military service. The purpose of this principle is not to guarantee that an employee will always move up in status and pay, but rather to ensure that the position to which he returns reasonably approximates what would have occurred if military leave had not interrupted the progression of his employment.
In considering both parties’ motions for summary judgment, the court noted that the facts should be considered in the light most favorable to the nonmoving party. Plaintiff argued that defendant failed to reemploy him in a job with “like seniority, status and pay” to the job he would have held if he hadn’t been on military leave. He also argued that the status, responsibilities, prestige and pay associated with the position of Executive Director of Finance and Business were greatly diminished after his return.
In regards to the plaintiff’s arguments, the court found that the statutory language creating the CSFO requirements while plaintiff was on military leave created different duties. The court also noted that although plaintiff received discretionary pay raises in earlier years, defendant’s removal of discretionary pay raises for all employees due to staff reorganization caused this practice to stop, not the plaintiff’s military status. Additionally, plaintiff received all general and state mandated raises since that time. Defendant’s reorganization of the office for financial reasons was the likely cause of any office changes. Therefore, the court did not find that the plaintiff was not reemployed to an appropriate escalator position upon his return to work, and subsequently denied plaintiff’s motion for summary judgment.
The court also found that genuine issues of material fact did exist in regards to plaintiff’s being placed in a lesser position, as well as potential willful discrimination. The court cited plaintiff’s provision of evidence that an administrator and the board’s attorney both expressed displeasure of the board that it was required to pay plaintiff his full salary while he was away on military leave. As a result, the court denied defendant’s motion for summary judgment.
DISCRIMINATION – EQUAL PROTECTION
Fifth Circuit court finds district’s redistricting plan that concentrated economically disadvantaged students in a majority non-white school did not violate equal protection.
Lewis v. Ascension Parish School Bd., 806 F.3d 344 (5th Cir.2015)
http://www.ca5.uscourts.gov/opinions/pub/15/15-30030-CV0.pdf
Ascension Parish School District (the district) operates four high schools. Since the early 1970’s, the district has assigned students to these schools through an attendance-zone-based “feeder plan” where specific elementary schools feed into specific middle schools, and finally specific high schools. This plan allows students to matriculate through the system together.
Dramatic population growth in the Dutchtown area of the district caused the board to convene a “Growth Impact Committee” (committee) to meet four goals, including addressing the growth in that specific area while still ensuring equal facilities and instructional quality for all students, attaining enrollment maximums and maintaining unitary status. The committee was chaired by board member, Troy Gautreau, Sr. the district planned to move approximately 450 students from the Dutchtown middle school to other schools that had room for capacity growth. The district narrowed its rezoning plans down to four options referred to as 1, 2, 2f and 3.
Between 2004 and 2007, Gautreau delivered several presentations to the board on the topic of rezoning. A 2004 presentation indicated that, since implementation of the 2002 feeder plan, which accompanied construction of Dutchtown High School, the percentage of at-risk students at the primary and middle schools in the East Ascension High School feeder zone had increased.
By 2006, enrollment at Dutchtown Middle School was over 1,000 students, causing severe overcrowding. No other east bank middle school had more than 730 students. In 2007, Gautreau created a chart projecting the total enrollment percentages of “minority” and at-risk students at each of the three east bank high schools under each of the rezoning options being considered. Under each of the options, total enrollment in all three schools would increase, but would approach parity and the percentage of at-risk students in all three would increase.
In 2008, the district’s superintendent created a chart listing current enrollment, percentage of African-American students and percentage of at-risk students at each school in the district. The chart then projected the same data under all of the proposed rezoning options. This chart did not project data beyond the 2007-2008 school year.
At a board meeting in Jan. 2008, Gautreau stated “the criteria most concentrated on was maintaining our current unitary status with the Department of Justice and moving the least amount of kids as possible.” The board then voted on options 3 and 2f, with option 2f passing.
Option 2f employed several means to shift the student population, including redrawing the district’s geographic attendance lines, moving 339 students into different feeder zones during the 2008-09 school year and assigning new primary and middle schools to different feeder zones. Evidence of academic performance under option 2f was mixed.
Shortly after adoption of option 2f, the parent of two African-American students assigned to the East Ascension feeder zone (both before and after rezoning) filed suit, asserting violations of his children’s Fourteenth Amendment rights to equal protection. He alleged that option 2f created a disproportionate amount of non-white minority population at East Ascension High School, leaving two East Bank schools as predominantly white. Additionally, he alleged that this would ensure that non-white minority students at East Ascension High School would not be afforded equal educational opportunities to those students at the predominantly white schools.
The court found that plaintiff could not prove discriminatory intent or discriminatory effect, which would have invoked strict scrutiny. Therefore, under the court’s rational basis review, it found that the board had a legitimate government interest in reducing overcrowding, and subsequently upheld the plan.
On first appeal, this court reversed the district court’s decision, finding that there were material questions of discriminatory purpose and effect. On remand, the district court permitted additional discovery, and a three-day bench trial commenced. The district court found in favor of defendants citing that option 2f does not employ explicit racial classifications, plaintiff failed to prove that similarly situated students were treated differently based on race, and even if he had proven this, the record does not support the conclusion that option 2f has had a discriminatory effect on nonwhite students in the East Ascension feeder zone. Plaintiff appealed.
Plaintiff first argued the district court erred in holding that option 2f does not explicitly classify students on the basis of race. Defendant argued that the rezoning was race neutral, and the rezoning body’s consideration of demographic data in drawing the relevant geographic boundaries does not amount to making an express classification. This court agreed with defendants and held that the district court did not err in concluding that option 2f did not make express racial classifications and is not subject to strict scrutiny on that basis.
Plaintiff also argued that even if the court found option 2f to be facially neutral, the redistricting plan’s funneling feature was still subject to strict scrutiny because it had both discriminatory purpose and effect. The court found that plaintiff failed to provide sufficient statistical evidence to prove discriminatory effect.
Finally, the appellate court found that rational basis review was the appropriate level of scrutiny as there was no proof of discriminatory purpose or effect, and the board cited a legitimate government purpose, alleviating overcrowding.
The court found that the plan was facially race neutral, and plaintiffs failed to prove the redistricting plan treated similarly situated students of different races differently. Additionally, the court found that even if plaintiffs had shown the preceding to be untrue, they still failed to establish that the plan had a discriminatory effect.
DISCRIMINATION – INDIVIDUAL LIABILITY
Kentucky District Court finds that Title VI, Title VII and Title IX claims cannot be brought against private individuals.
Vinova v. Henry Cty. Bd. of Edn., E.D.Ky. No. 15-37-GFVT (Nov. 24, 2015)
Amanda Vinova taught fourth grade at an elementary school in Henry County, Kentucky during the 2010-2014 school years. One day prior to reaching tenure she was terminated from her position. As a result, she filed suit against the Henry County School Board, the elementary school, the superintendent, assistant superintendent and principal of the elementary school, alleging violations of Title VI, Title VII and Title IX.
Vinova argued that she was discriminated against due to her sexual orientation and same-sex marriage. She cited the omission of her wedding engagement announcement from the elementary school’s announcements even though all other faculty members getting married that year were included. Additionally, she noted that she was required to submit a new social security card to have her married name listed on her nameplate, even though other faculty members were not required to go through the same process. She also alleged that when she was told that her termination was due to “budget cuts,” no other teaching roles were offered to her, and when she applied for an open position for which she was qualified; she was never contacted for an interview. She argued that these actions constituted a direct and intentional disparity in treatment and were taken in direct retaliation against her due to her sexual orientation and same-sex marriage.
Defendants argued that Vinova’s claims could not be brought against individual defendants because Title VI, Title VII and Title IX claims cannot be brought against private individuals. The court agreed and stated that while private individuals can sue to enforce such claims, individuals generally cannot be held liable for violations of them because they apply only to entities receiving federal funding. Defendants further argued that the elementary school was not a legal entity, and therefore could not be sued. The court found the school to be property of the board of education and not a legal entity.
The court granted defendants’ Motion to Dismiss against the individual defendants and elementary school, but Vinova’s claims against the Henry County Board of Education remain in place.
Sixth Circuit finds that teacher’s physically forceful teaching methods in special needs classroom were not a violation of the Fourteenth Amendment.
Domingo v, Kowalski, 6th Cir. No. 14-3957 (Jan. 7, 2016).
http://www.ca6.uscourts.gov/opinions.pdf/16a0006p-06.pdf
During the 2003-04 school year, Marsha Kowalski was a special-education teacher at North Point Educational Service Center. Suzanne Brandt, a teaching aide, alleged that Kowalski had, among other things, gagged a student with a bandana and improperly restrained him, belt-strapped a student to the toilet, and used physical means to focus students’ attentions in the classroom. Kowalski maintained that each of these behaviors had a teaching purpose – for example, she had used the bandana to secure a therapeutic “chewy” in the first child’s mouth, the second child had muscular issues that did not allow her to support herself on the toilet. No parents complained to school administrators about mistreatment or reported an injury to their children.
Brandt remained silent for most of the school year. In late 2003, she complained to North Point administration about Kowalski’s behavior, and administration indicated that if Brandt suspected abuse, she needed to report it to state authorities. After North Point advised Brandt they would not renew her contract, Brandt raised her concerns about Kowalski’s teaching methods. It was not until June 2004 Brandt fully reported her concerns to administration; she filed a complaint of child abuse with county authorities in July 2004.
Kowalski’s behaviors were investigated by Erie County Children’s Services, the Norwalk Law Director, the Norwalk Police Department, and the Ohio Department of Education (ODE). No criminal charges were brought against Kowalski, and Kowalski entered a consent agreement that was not an admission of wrongdoing with ODE that required her to complete 20-30 hours of college-level special education coursework. Kowalski completed training, and North Point reassigned her; she has not had her own classroom since 2004.
The parents of three of her students brought a §1983 claim against Kowalski, alleging her teaching methods were a violation of her students’ due process rights to be free from abuse at the hands of state actors, and to enjoy physical security and bodily integrity in an education setting. The district court dismissed on summary judgment, noting while Kowalski’s behavior as recounted by Brandt was inappropriate and likely abusive, it did not rise to the level of a violation of the students’ substantive due process rights.
On appeal, the Sixth Circuit turned to a four-part test adopted by the Third Circuit to determine whether Kowalski’s educational and disciplinary techniques violated the Fourteenth Amendment. The four questions the court examined were:
- Was there a pedagogical justification for the use of force?
- Was the force utilized excessive to meet the legitimate objective in this situation?
- Was the force applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm?
- Was there a serious injury?
The court found all four factors weighed in favor of Kowalski. While noting that Kowalski’s actions were “offensive to her students’ dignity,” “unorthodox,” and “insensitive, and improper,” the court still found that Kowalski had legitimate educational purposes for each of her actions and she had not acted to humiliate, harm or punish her students.
Northern District of Ohio finds that school district’s change in procedures for use of online course of instruction was not a denial of due process for student that failed to graduate on time.
Franklin v. Mansfield City School Dist. N.D. Ohio Case No. 1:14-CV-1163 (Oct. 30, 2015)
(Note: link is to the Magistrate’s report and recommendation that was adopted by the District Court on November 18, 2015.)
https://www.gpo.gov/fdsys/pkg/USCOURTS-ohnd-1_14-cv-01163/pdf/USCOURTS-ohnd-1_14-cv-01163-1.pdf
Stanley Brown attended the Mansfield Integrated Learning Center (MILC). As part of the curriculum, Brown used PLATO, an online computer-based program used by the school district to help students earn or recover credits toward graduation that they were not able to earn in the traditional educational setting. PLATO was used in both MILC and Mansfield Senior High School (MSHS). At MSHS, a student could not use PLATO at home or at any other time or location other than those authorized, and students could not take mastery tests on the system out of sequence. The same restrictions were not in place at MILC.
In 2014, Mansfield administration noted testing irregularities in PLATO’s use at MILC, and ordered a full investigation. During the investigation, PLATO was disabled at MILC, and MILC students were required to access PLATO at MSHS. In doing so, they were required to adhere to the MSHS protocols, accessing the system only from the school and taking the mastery tests in sequence. Brown was one of the students required to access PLATO from MSHS. Brown unsuccessfully completed his PLATO courses in time for graduation in May 2014. He enrolled in a different school district and graduated in September 2014.
Brown, through his mother, Jumille Franklin, brought suit against Mansfield, alleging that he was locked out of PLATO and was thus unable to finish his courses, and as a result of not graduating in May, lost a soccer scholarship and the interest of other college soccer coaches that were recruiting him. He pled violations of his due process, among other claims. The district court granted summary judgment in favor of the district.
Brown argued that the change in protocols from MILC’s rules to MSHS’s rules barred him from graduating on time, and thus deprived Brown of a property interest and violated his due process rights. He argued that the change in rules was akin to a suspension, and he should have been provided notice and a hearing regarding the change before he was locked out of the system. The school district alleged that Brown was locked out of the system because he was jumping around in modules and attempting to take the mastery tests out of sequence. The Court found the matter to be a curriculum issue, and found Brown had no fundamental right to use PLATO on the terms used at MILC.
Michigan district court found sufficient evidence to justify custodian’s retaliation claim after she received discipline for warning about district’s asbestos hazards.
Ely v. Dearborn Heights Sch. Dist. No. 7, E.D. Mich. No. 14-14500 (Dec. 14, 2015).
http://law.justia.com/cases/federal/district-courts/michigan/miedce/2:2014cv14500/296787/32/
Theresa Ely began working as a substitute custodian for Dearborn Heights School District in Michigan in 2009. In 2012, Ely’s supervisor directed her to sand floor tiles in a school building, but Ely objected because she had been told that the tiles contained asbestos. The supervisor told Ely that “sanding the tiles would be fine” and a co-worker indicated that testing done on a dust sample revealed no asbestos. However, Ely questioned the authenticity of the report and filed a complaint with the Michigan Occupational Safety and Health Administration (MIOSHA).
On May 15, 2013, MIOSHA indicated that samples from the floor tiles she had sanded were tested and found to contain asbestos. The next day, the district’s superintendent sent a memo to all employees stating there were no asbestos hazards at any of the district’s schools and sent a letter of reprimand to Ely directing her to stop spreading “false rumors” about asbestos hazards at the district’s schools.
In June 2013, MIOSHA sent Ely a letter stating that the agency’s investigation of the high school revealed numerous violations of the Michigan Occupational Health Standards. The agency imposed $13,500 in fines against the district. After the MIOSHA report and citations were issued, Ely continued to warn co-workers and members of the public about asbestos exposure and health consequences. The superintendent sent a second letter of reprimand to Ely referencing “misconduct, false statements, absenteeism, creating an unfriendly work environment and insubordination.” The superintendent indicated that if Ely continued to repeat the behavior, she would be further disciplined, up to and including discharge. In November 2014, Ely filed a complaint alleging violations of her First Amendment rights on theories of retaliation and prior restraint.
The district court found that Ely offered sufficient evidence on her retaliation claim to withstand summary judgment. The court found that that Ely was speaking on a matter of public concern and rejected the district’s argument that Ely’s speech was limited merely to “a janitor discussing her cleaning duties.” The court found that Ely was subjected to an adverse action in the form of the second letter of reprimand warning her that she could be fired if she continued to engage in the speech. The court also found that because both reprimands plainly stated that they were issued because of Ely’s speech, there was adequate evidence to support a finding that Ely’s speech was the cause of the adverse action.
With regard to Ely’s prior restraint claim, the district court found that Ely submitted enough evidence to proceed on her claims against the individual defendants, but failed to put forth any evidence to suggest that any policy, custom, or practice of the district was the moving force behind the alleged violations of her rights. The court denied qualified immunity to the individual school officials named in the case.
INDIVIDUAL WITH DISABILITES ACT – ATTORNEYS’ FEES
Federal Court in Kentucky finds that ultimate recovery less than Board’s offer of judgment is not a bar to recovery of attorney’s fees in IDEA actions.
B.S. v. Bd. of Edn. of Oldham Cty. Schools, W.D. Ky. No. 3:15-CV-00040-TBR (Dec. 15, 2015)
http://law.justia.com/cases/federal/district-courts/kentucky/kywdce/3:2015cv00040/93091/23/
In June 2014, plaintiff B.S. filed a complaint against the Board of Education in Oldham County, Kentucky (the Board), alleging the school system had failed to properly evaluate B.S. for a disability, develop a behavior intervention plan (BIP), and provide a Free Appropriate Public Education (FAPE), among other things. In March 2014, the Board made an offer of judgment that included an occupational therapy assessment, a functional behavioral assessment (FBA), the creation of a new BIP, a math assessment and math interventions, and $4,000 in attorneys’ fees. Plaintiff rejected the offer.
The hearing officer found in favor of B.S. on his claim that he had been denied a FAPE for two school years, and awarded B.S. two years of compensatory education and ordered a FBA, but denied the plaintiff’s other requests. Both parties appealed.
Kentucky’s Exceptional Children’s Appeals Board (ECAB) affirmed the denial of the FAPE and revised the award of compensatory education. Plaintiff filed an action requesting attorney’s fees under IDEA. The Board argued that even if plaintiff was considered the prevailing party in the dispute, plaintiff was not entitled to attorneys’ fees because the Board’s March 2014 offer was more generous than what Plaintiff ultimately recovered. The district court rejected this argument, and awarded attorneys’ fees, but reduced the fees by 50% because the Plaintiff did not fully succeed on his claims. The Board moved to vacate the award.
The district court denied the motion, finding that although ECAB had modified the award of the hearing officer, ECAB’s recommendation was substantially similar to the Hearing Officer’s award. Although ECAB did not adopt the Hearing Officer’s conclusion that the plaintiff was entitled to two years of compensatory education, ECAB had endorsed the recommendations of the Hearing Officer comprising the two years of compensatory education.
INDIVIDUAL WITH DISABILITIES ACT
Sixth Circuit finds school district properly excluded consideration of social or behavioral deficits that were not shown to interfere with a student’s school-based performance.
Q.W. v. Bd. of Edn., FED.App. No. 0752N (6th Cir.2015)
http://www.ca6.uscourts.gov/opinions.pdf/15a0752n-06.pdf
Q.W., a high-functioning autistic elementary school student was identified as disabled under the Individuals with Disabilities Education Act (IDEA) while a student in California. As a result, he was provided with an individualized education plan (IEP). When his family relocated to Lexington, Kentucky, the District convened an Admission and Release Committee (committee) that adopted his California IEP, which included speech, language, occupational and behavioral therapy plus adaptive physical education. Two years later, during a periodic re-evaluation of Q.W.’s eligibility, the committee determined that because Q.W.’s condition did not adversely affect his “educational performance,” he was no longer eligible for special education and related services under IDEA. Q.W.’s parents disagreed and requested an independent educational evaluation (IEE). Despite the IEE results, the committee continued to deem Q.W. ineligible.
A hearing challenging the determination was convened about a year later, at which evidence pointed both ways on Q.W.’s social development and whether he had completed his IEP. There also was a conflict of evidence regarding his behavior at home, and his generally good at-school behavior. The hearing officer concluded that Q.W.’s academic achievement made him ineligible for IDEA services. His parents appealed to the Kentucky Exceptional Children Appeal Board (ECAB), which affirmed on the same grounds.
Q.W.'s parents appealed to the district court, which affirmed the administrative decision, finding that in the absence of a statutory directive, the ordinary meaning of “educational performance suggests school-based evaluation.” The court found that this determination does not include the child’s behavior at home. The parents appealed.
On appeal, the Sixth Circuit found that the record supported the district court’s decision, and therefore affirmed. The parties disagreed on the meaning of the term “educational performance.” The court agreed that the term “educational performance” may encompass more than academic achievement. IDEA requires the use of a variety of assessment tools and strategies to gather relevant information to determine eligibility, but IDEA and the corresponding Kentucky statute do not make reference to a child’s behavior at home and in the community.
The court noted that since there is no statutory directive, the term must be given its ordinary meaning. In this case, “educational performance” suggests school-based evaluation since IDEA’s legislative purpose is to provide a Free Appropriate Public Education (FAPE). While the parents argued that there is no limit to what must be considered, the court agreed with the district court’s judgment, which focused on school-based performance.
The parents also argued that Q.W. failed to reach the educational goals set forth by his IEP. The court found that the parents’ selective citation to instances in Q.W.’s record were inconsistencies, and did not alone demonstrate clearly erroneous findings.
RACIAL DISCRIMINATION AND RETALIATION
District court finds employee was not discriminated against on the basis of race due to employee’s own requests for accomodations.
Sutton v. Bd. of Edn., D.N.J. No. 13-5321 (Dec. 22, 2015)
Plaintiff Jean Sutton worked for the City of Plainfield board of education for several years in different capacities. During Sutton’s employment with the board, he was promoted and his salary increased on several occasions. The board initiated a Reduction In Force (RIF), which included Sutton’s position. Sutton was approved for rehire two months after the RIF in a lower level position with less pay, but was eligible for overtime pay, which he was not eligible for in the position he held prior to it.
Shortly after his rehire, a new position was created in the district via a contract entered into between the board and a company called Energy Education Inc. The position did not list a specific salary. Rather, salary was left open, but was limited to the range included in the Collective Bargaining Agreement (CBA). Sutton applied and was chosen as the best candidate. Sutton’s employment was originally placed on the board's agenda at a salary of $83,699. This was pulled by the Superintendent, and Sutton was later offered the position at his current salary of $63,000. Sutton was told that the board members were not comfortable with the first salary amount since it was higher than many teachers in the district who, unlike Sutton, possessed college degrees.
Sutton rejected the job offer, and the job was again posted for applications, including the same salary stipulation of CBA salary guide limitation. Sutton did not reapply for the position. The most qualified candidate during the second round turned down the position and it was again reposted. This time, the posting stated that the pay rate would be “determined by the district.” Sutton again, did not reapply for the position. The position was later filled at a salary of $72,000.
At the same time, Sutton injured his knee and ankle while at work, requiring surgery. He was out for an extended period of time and provided doctor’s notes for his condition. During this time, his salary and title did not change. Sutton’s doctor stated that his restrictions included “no repetitive stair climbing, no ladders, no carrying greater than 10 lbs., and no kneeling.” As a result, Sutton was temporarily assigned to the high school library because there was no elevator in his current location.
Sutton emailed the District Coordinator of Human Resources (HR) expressing his dissatisfaction with being reassigned; stating that he felt the reassignment was retaliatory. HR informed Sutton that the transfer was based on his physician’s recommendation, which was again confirmed at a later date.
Sutton filed a complaint with the EEOC alleging race discrimination under Title VII of the Civil Rights Act of 1964 and disability discrimination under the Americans with Disabilities Act in connection with the board’s initial RIF and the job offer he declined. He later filed a claim for retaliation in violation of Title VII relating to his filing of the initial EEOC claim. The later claim asserted that the board retaliated against him by adversely changing the terms and conditions of his employment by assigning him to the library. Around the same time, an unfair labor practice charge was filed on Sutton’s behalf alleging hostile work environment based on the offer made for the position he declined and his reassignment to the library.
In this claim, Sutton alleges racial discrimination and retaliation. The court rejected Sutton’s claims, first stating that he did not suffer adverse employment action in his racial discrimination claim. Sutton also failed to show evidence that his transfer to the library was a retaliatory act, and that such act had any negative effect on him. Even if Sutton could meet his burden in the retaliation claim, defendant could overcome it by demonstrating it would have transferred Sutton regardless of his EEOC claim. The decision to transfer Sutton was made to accommodate his disability. The court concludes that Sutton cannot request an accommodation, and then complain that such accommodation was retaliatory.
U.S. Supreme Court declines to review Sixth Circuit ruling that mandatory reporters of child abuse may be held liable based on federal retaliation claims.
Wenk v. O’Reilly, 783 F.3d 585 (6th Cir.2015).
http://www.ca6.uscourts.gov/opinions.pdf/15a0068p-06.pdf
In Issue 2015-3, the School Law Summary reported on the case Wenk v. O’Reilly. The case involved a district administrator who reported suspected child abuse pursuant to her duties as a mandatory reporter. The student’s parents then sued the administrator, alleging that she was retaliating against them amid a dispute over an individualized education plan (IEP) for the student. In April 15, 2015, the Sixth Circuit Court of Appeals agreed with the parents and found that they had established a case of retaliation under the First Amendment.
In August 2015, the Ohio School Boards Association’s Legal Assistance Fund (LAF) joined the National School Boards Association and 15 other national organizations to file an amicus brief in the U.S. Supreme Court, urging the court to protect teachers and other school officials from lawsuits arising from reports of suspected child abuse they make under mandatory reporter laws. The brief asked the court to hear and overturn the lower court’s ruling that makes mandatory reporters of suspected child abuse vulnerable to federal claims brought by an alleged abuser. Unfortunately, the U.S. Supreme Court recently found there was no reason to hear the case after the parties had reached a confidential settlement of the lawsuit.
D.C. court rejects student’s claims in case involving consensual sexual relationship between teacher and student.
Blue v. Dist. of Columbia, D.C. Cir. No. 14-7189 (Dec. 29, 2015).
https://scholar.google.com/scholar_case?case=7128545603854483685&hl=en&as_sdt=6&as_vis=1&oi=scholarr
In 2008, the District of Columbia Public Schools hired Robert Weismiller to teach at a school for emotionally disturbed students. In the mid-1970s and ‘80s, Weismiller had initiated sexual relationships with multiple students and was ultimately terminated from his previous position after one of the students involved filed a lawsuit against Weismiller and his district.
In the fall of 2008, Weismiller made advances toward Ayanna Blue, an 18-year-old student, and the two engaged in sexual intercourse. Before the relationship ended in April, “numerous incidents occurred in Weismiller’s classroom during the lunch period, in his car, and at Blue’s home.” Blue became pregnant and a paternity test indicated with a 99.99% probability that Weismiller was the baby’s father. In May, after the district learned that Blue was pregnant, it initiated an investigation of Weismiller. Weismiller denied having a sexual relationship with Blue, but every witness the district interviewed stated that they had seen the two alone together in Weismiller’s classroom or had heard rumors that the two were having a sexual relationship. Despite these interviews, the district acquitted Weismiller of any misconduct.
In 2010, Blue filed suit against the district under Section 1983, Title IX and various D.C. tort laws. The district court granted the district’s motion to dismiss for failure to state a claim. Blue appealed.
On appeal, the court of appeals affirmed the decision of the district court. In order for Blue to have succeeded on her Section 1983 claim, she needed to plead “a predicate constitutional violation” and that “a custom or policy of the [district] caused the violation. The court ignored the issue of whether there was a constitutional violation, finding that there was no evidence that a custom or policy of the district caused the violation. The court held that, at most, the district made a serious mistake in hiring Weismiller, but there was no evidence that the district had a custom or a policy of failing to properly screen employees.
The court also rejected Blue’s sexual harassment claim until Title IX, finding that Blue failed to demonstrate that anyone, including an appropriate official, knew of any acts of sexual harassment while the harassment was ongoing. The court found that Blue failed to demonstrate that anyone had actual knowledge that sexual harassment was occurring in Weismiller’s classroom and that the rumors and assumptions of staff members were not enough to rise to actual knowledge. As a result, the court held that Blue failed to state a claim for relief until Title IX.
Ohio Supreme Court holds that real property owned by a board of education is exempt from taxation regardless of whether it is used exclusively for school purposes.
Talawanda City School Dist. Bd. of Edn. v. Testa, Slip Opinion No. 2015-Ohio-5450.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-5450.pdf
In 2009, the Talawanda City School District board of education purchased property to build a new high school.
In order to avoid the costs of maintaining all of the property, 34 acres were leased to a local farmer in exchange for a yearly rental fee. The district applied for an exemption from real property taxes under RC 3313.44, which provides that “real or personal property owned by or leased to any board of education for a lease term of at least fifty years shall be exempt from taxation.” The commissioner granted the exemption for the portion of the property used for the school and grounds, but concluded that because the 34 acres were being used for farming purposes and not for school purposes, the property did not satisfy the statutory requirements and was not eligible for exemption. The district appealed, alleging that the Tax Commissioner improperly imposed a “specific use” component to the statute that does not agree with the plain language of the statute.
On appeal, the Board of Tax Appeals (BTA) relied on a 2001 case that held that in order to qualify for the exemption, “not only must title to a subject property be vested in a school board, but also that the property be used for school purposes.” The BTA held that because the ultimate user of the property (i.e. the farmer) farmed the land commercially with the intent to earn a profit, the subject property was not used for school purposes. As a result, the BTA affirmed the commissioner’s final determination.
The district appealed to the Ohio Supreme Court, who reversed the decision of the BTA and held that the entire property was exempt. The court found that RC 3313.44, which is the statute that generally provides for an exemption of school-owned property, exempts real property broadly and doesn’t place any restrictions on its use. As a result, the court agreed with the board’s argument that the bare fact of ownership by the board accorded exempt status to the entire property, including the 34 acres at issue.
Madison County Common Pleas Court finds criteria evaluators use in teacher evaluations to be a proper subject of arbitration.
Tolles Career & Technical School Bd. of Edn. v. Tolles Edn. Assoc., Madison C.P. No. CVH 20150102 (Dec. 9, 2015)
At Tolles Career & Technical School, the board developed a standards-based teacher evaluation policy in consultation with teachers within the statutory timeline required under the Ohio Teacher Evaluation System (OTES). The Board also negotiated certain procedural components of the evaluation process into its collective bargaining agreement (CBA). However, neither the policy nor the CBA set forth what evidence or information would be reviewed to determine whether a teacher met each of the standards.
In March 2015, the Tolles Education Association (TEA) filed a grievance alleging that the board violated the CBA when district administrators included a statement of the teachers’ attendance percentages in the evaluation process. The Superintendent denied the grievance in April 2015. TEA requested that the grievance proceed to arbitration. The board argued that the grievance was not subject to arbitration.
The board filed a Complaint for Declaratory Judgment requesting the Court to declare that a determination of criteria and evidence that an evaluator uses in teacher evaluations is reserved for management and not the proper subject of arbitration. The board argues that the policy adopted by the board contained a number of factors for the evaluator to consider in evaluating teachers. However, the policy did not detail how the evaluator established the factors that must be considered. The board argued that this absence of specificity leaves those matters up to the professional judgment of the evaluator, i.e. there was no issue of procedural or legal compliance, so the matter should not have proceeded to arbitration.
TEA argues that nowhere contained in the teacher evaluation policy are criteria that include attendance percentages. They argue that because attendance percentages were not included in the policy, it is a procedural violation to include them in a teacher’s evaluation.
In December 2015, the court found that because it was unclear whether this “unarticulated standard for evaluation” (i.e. teacher attendance) constituted a procedural violation, the matter was appropriate for arbitration. The board appealed in early January 2016.
Thanks to Nicole M. Donovsky, Bricker and Eckler, Columbus for submitting the above decision.
Arkansas federal district court rejects district’s argument that Title VII claims were time-barred in light of the retroactivity clause of Fair Pay Act.
Holt v. Deer-Mt. Judea School Dist., W.D. Ark. No. 3:14-cv-03119 (Sept. 23, 2015).
https://scholar.google.com/scholar_case?case=7490068631046683461&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Roxanna Holt was employed by Deer-Mt. Judea School District as an elementary school principal. In December 2014, Holt filed a lawsuit against the district, arguing that the district violated Title VII of the Civil Rights Act by discriminating against her on the basis of her sex by paying a male elementary school principal a higher salary for 10 years. The district filed an answer and motion to dismiss, arguing that Holt’s claims were time barred by the relevant statutes of limitations.
Title VII makes it an unlawful employment practice to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual’s sex. In 2009, Congress passed the Lilly Ledbetter Fair Pay Act of 2009 which clarified that, in the context of compensation discrimination, a violation occurs when a person is affected by application of a discriminatory compensation decision or other practice, including “each time wages, benefits or other compensation is paid.” This provision establishes what is known as the “paycheck rule,” which gets its name because each disparate paycheck resets the 180-day clock to file with the EEOC. Congress made the Fair Pay Act apply retroactively to May 28, 2007.
The district argued that Holt’s Title VII claims were time-barred because the alleged discriminatory decisions occurred before the paycheck rule was in effect. The court disagreed with the district, finding that because Congress included a retroactivity provision, it clearly intended Title VII to include the paycheck rule, regardless of whether the initial discriminatory decision(s) occurred before or after May 28, 2007. As a result, the court denied the district’s motion to dismiss.
TITLE VII – REVERSE RACIAL DISCRIMINATION
Caucasian principal’s challenge to his dismissal on reverse racial discrimination grounds survives summary judgment in Northern District of Ohio.
Pingle v. Richmond Heights Local Sch. Dist. Bd. of Edn. N.D. Ohio Case No. 1:12-CV-2892 (Oct. 27, 2015)
https://www.gpo.gov/fdsys/pkg/USCOURTS-ohnd-1_12-cv-02892/pdf/USCOURTS-ohnd-1_12-cv-02892-3.pdf
Timothy Pingle was a secondary school principal at Richmond Heights School District in 2011, when the superintendent of the school was suspended by the Richmond Heights Local School District Board of Education (Board). Pingle, who is Caucasian, believed himself to be qualified for the interim superintendent posting, and sent two emails to Board members regarding the suspended superintendent and the Board’s selection of an interim superintendent. The Board ultimately appointed the elementary school principal, Robert J. Moore, to the interim superintendent post. Moore is African-American.
Upon recommendation of Moore, the Board suspended Pingle with pay in December 2011 for the stated reason that Pingle’s emails to the Board were racist and violated board policy. Pingle sent another email on the day he was suspended. In February 2012, Pingle was suspended without pay and the Board initiated termination proceedings against him. Pingle challenged his termination, ultimately ending up in federal court on claims of reverse race discrimination and retaliation under Title VII of the Civil Rights Act, among other claims. He alleged discrimination because he was not selected for the interim position and because he was paid less than Moore as principal.
In the Sixth Circuit, to succeed on a reverse race discrimination claim, the plaintiff must initially establish four criteria:
- the defendant is the “unusual employer” who discriminates against the majority;
- the plaintiff was qualified for the position in question;
- the plaintiff suffered an adverse employment action and
- the plaintiff was treated differently than other similarly situated employees not members of the protected class.
If the plaintiff clears the initial burden of proof, the burden then shifts to the employer to offer a legitimate, nondiscriminatory reason for the chosen employment action.
It was undisputed in the case that racial tension existed in the district, and the court found that fact to be sufficient to clear the first showing for Pingle’s reverse discrimination case because the board may have had a reason or inclination to discriminate against a majority individual. The board conceded that Pingle was considered and qualified for the position of interim superintendent, and that he suffered an adverse employment action in not being selected. On summary judgment, the board conceded (for that motion only) that the facts viewed most favorably to Pingle established the fourth criterion was also met.
The Board explained that it had selected Moore because of his credentials; because he had been in the school district longer than Pingle; because he was more familiar with the district and ongoing issues; and he had acted as superintendent for a few weeks while the prior superintendent had been on medical leave and done a “wonderful job.” Pingle maintained these selection criteria were pretextual, alleging that the Board president had told Pingle repeatedly that Moore would be selected because of his race, so the board would avoid allegations of racism. The court found that the alleged statements of the Board president were insufficient to establish direct evidence of discrimination and there was no evidence in the record that the Board president had exercised influence over the other members, but that construing evidence in favor of Pingle, a jury could conclude the board’s reasons were pretextual.
With respect to the unequal pay complaint, the court concluded that “no rational jury could find that race played any part in the reason Pingle was paid less than Moore” and granted the Board summary judgment on the claim. At the time Pingle was hired, the school district was in financial trouble. The Board had agreed on a salary for the posting prior to it being filled, and actually increased the amount once Pingle was selected.
The retaliation claim also survived summary judgment, because the emails for which Pingle was ultimately terminated raised issues of race discrimination and were sufficient to put the district on notice that Pingle believed he was being discriminated against. While defendants maintained the emails demonstrated racism and racial insensitivity that made Pingle unsuitable to be high school principal, the court found that viewing the facts most favorably to the plaintiff, a reasonable jury could find he had engaged in protected speech.
California district court rules that Title IX is applicable to claims based on sexual orientation discrimination.
Videckis v. Pepperdine Univ., C.D. Cal. No. CV 15-00298 DDP (Dec. 15, 2015).
https://assets.documentcloud.org/documents/2648492/Pepperdine-Title-IX-Ruling.pdf
Two former members of the Pepperdine University women’s basketball team filed a lawsuit against the university alleging discrimination and retaliation under Title IX. Specifically, the women claimed that their coaches harassed and discriminated against them based on the fact that they were lesbians and were in a lesbian relationship. In addition to a number of state claims, the women alleged that the university’s actions violated Title IX. The university filed a motion to dismiss the women’s claims, arguing that there was no cause of action under Title IX because Title IX only banned discrimination on the basis of gender, and not discrimination based on sexual orientation.
The district court found for the plaintiffs, ruling that Title IX encompassed claims based upon sexual orientation. The district court stated that “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best.” It concluded that sexual orientation discrimination is a form of sex or gender discrimination, and that the “actual” orientation of the victim is irrelevant.
The court also concluded that the plaintiffs stated a valid Title IX claim based on gender stereotype discrimination. “Stereotypes about lesbianism,” the court stated “and sexuality in general, stem from a person’s views about the proper roles of men and women – and the relationships between them. Discrimination based on a perceived failure to conform to a stereotype constitutes actionable discrimination under Title IX.” In this case, the plaintiffs allege that they were repeatedly harassed and treated differently from other similarly situated individuals because of their perceived sexual orientation. Coaches, trainers, and support staff repeatedly questioned the plaintiffs about their sexual orientation, their private sexual behaviors, and their dating lives. Because school officials treated them differently due to their perceived lack of conformity with gender stereotypes, the court found that plaintiffs had stated a valid Title IX claim for sex discrimination.
The court also concluded that the plaintiffs stated a valid claim that they were discriminated against because of their sex. The women alleged that they were told that “lesbianism” would not be tolerated on the team. The court highlighted the fact that if the plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Because of this, the court found that the plaintiffs stated a straightforward claim of sex discrimination under Title IX.
Federal District Court in Virginia dismisses transgender student’s Title IX claim in suit over use of the boys’ restroom.
G.G. v. Gloucester Cty. School Bd., E.D. Va. No. 4:15cv54 (Sept. 17, 2015).
Gavin Grimm is a transgender boy at Gloucester High School. At the beginning of the 2014-15 school year, G.G. was allowed to use the boys’ restroom for several weeks. However, after negative feedback from some members of the community, the school board adopted a restroom policy that required students to use the restroom and locker facilities that aligned with their corresponding biological gender. The principal informed G.G. that he could no longer use the boys’ restroom and would be disciplined if he did. G.G. filed a lawsuit against the board, challenging the board’s restroom policy under Title IX.
The district court dismissed G.G.’s Title IX claim and denied G.G.’s motion for a preliminary injunction. The court concluded that the Title IX claim was precluded by U.S. Department of Education regulation 34 C.F.R. 106.33 which “expressly allows schools to provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable.” The court pointed out that because the regulation specifically allowed schools to maintain separate bathrooms based on sex as long as the bathrooms for each sex were comparable, the board’s policy did not run afoul of Title IX by limiting G.G. to the bathrooms assigned to his birth sex.
The court rejected G.G.’s argument that the term “sex” in the regulation could only mean gender identity. Instead, it found that “sex” clearly included biological sex. It concluded that because the board’s policy of providing separate bathrooms on the basis of biological sex was permissible under the regulation, it was unnecessary for the court to decide whether the use of the word “sex” in the regulation also included gender identity.
The court rejected the guidance set forth by the U.S. Department of Justice that a policy that segregated bathrooms on the basis of biological sex violated Title IX. It found that the DOJ’s interpretations could not supplant the Department of Education’s regulation.
This case is currently being appealed to the U.S. Court of Appeals for the 4th Circuit.