School Law Summary 2018-3
This issue includes: Academic Distress Commission • Americans With Disabilities Act • Americans With Disabilities Act – Due Process • Arbitration – Nonrenewal • Arbitration – Reduction Of Hours • Breach Of Contract • Collective Bargaining – Agency Shop • Discrimination – Employee • First Amendment Retaliation • Individuals With Disabilities • Individuals With Disabilities – Exhaustion Of Remedies • Nonteaching Employee – Compensation • Public Records • Statute Of Limitations • Teacher Tenure • Teacher Termination • Title IX – Due Process • Tort Liability – Sovereign Immunity
Ohio court of appeals finds HB 70, which made significant changes to academic distress commissions, to be constitutional.
Youngstown City School Dist. v. State, 2018-Ohio-2532.
http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2018/2018-Ohio-2532.pdf
House Bill (HB) 70 was introduced on Feb. 18, 2015. As introduced, HB 70 proposed to enact new sections within Ohio Revised Code (RC) Chapter 3302 and authorized school districts and community schools to create community learning centers. On Feb. 25, 2015, HB 70 was read a second time and referred to the House Education Committee. On May 6, 2015, HB 70 was reported out of committee with a recommendation that it be passed. On May 19, 2015, HB 70 was read a third time in the House and passed by a vote of 92 to 6. On May 20, 2015, HB 70 was introduced in the Ohio Senate and read for the first time. The bill was read a second time in the Senate on May 27, 2015 and referred to the Senate Education Committee.
In the Senate Education Committee, HB 70 was amended twice on the morning of June 24, 2015. One amendment expanded the definition of facilities that were eligible to become community learning centers. The second amendment modified the structure of academic distress commissions under existing law by repealing and replacing existing RC 3302.10, enacting a new RC 3302.11 and by making changes to other sections in RC chapters 3302 and 3310. The committee adopted the second amendment and voted to pass the amended legislation.
On the afternoon of June 24, 2015, the Senate took up HB 70 as reported by the Senate Education Committee. Minor amendments were adopted on the Senate floor and the Senate passed HB 70 by a vote of 18 to 14. The same day, HB 70 was taken up for consideration in the House. The House voted to concur in the Senate amendments to the bill by a vote of 55 to 40. The governor signed HB 70 on July 16, 2015 and the legislation became effective Oct. 15, 2015.
On Aug. 21, 2015, the Youngstown City Schools Board of Education (Youngstown) filed a complaint for declaratory judgment and permanent injunction, challenging the constitutionality of the law. The trial court issued an order denying the motion for preliminary injunction. Youngstown appealed. The court of appeals dismissed the appeal for lack of a final appealable order and remanded the case to the trial court. On remand, the parties agreed to submit the issues for final determination by the trial court. On Oct. 11, 2017, the trial court issued a decision denying Youngstown’s claims for permanent injunction and declaratory judgment.
On appeal, Youngstown argued that the General Assembly violated the Three Reading Rule contained in Article II, Section 15(C) of the Ohio Constitution by enacting HB 70. This rule requires that every bill be considered by each house on three different days, unless two-thirds of the members elected to the house in which a bill is pending vote to suspend the requirement. When a bill is amended during the legislative process, amendments that do not “vitally alter” the substance of the bill do not trigger a requirement for three additional considerations of the bill. Youngstown argued that the amendments relating to academic distress commissions “vitally altered” the substance of the legislation and the General Assembly violated the Three Reading Rule because the amended version of HB 70 was not considered three times in each chamber and there was no vote to suspend the Three Reading Rule.
The court of appeals rejected this argument, finding that the original legislation and the amended final version of HB 70 not only involved the same general subject area of education, but the specific subject of restructuring and improving underperforming schools. As a result, the court found that there remained “a common purpose or relationship between the original bill and the bill as amended,” and the legislation was not “vitally altered” by the amendments.
Youngstown also argued that HB 70 violated the Ohio Constitution because it usurped all of the powers of elected school boards by granting an appointed CEO with complete operational, managerial, and instructional control over the school district. The court reviewed the legislative delegation of duties and found that although HB 70 grants broad authority to the CEO, it doesn’t usurp all of the powers of the elected school board. For example, the board still has the authority under HB 70 to adopt a resolution seeking to impose an additional tax levy.
Finally, Youngstown claimed that HB 70 violated the Equal Protection Clause of the Ohio and U.S. Constitutions. They argued that voters in a school district where an academic distress commission is appointed would be denied equal protection of the law because the school board members they elected have less authority than school board members in other districts. In reviewing this claim, the court applied rational-basis scrutiny, and found that HB 70 was rationally related to the state’s legitimate interest in ensuring a quality education system and improving the quality of underperforming public schools. Accordingly, the court found HB 70 to be constitutional.
Youngstown will be appealing the decision to the Supreme Court of Ohio. The Ohio School Boards Association Legal Assistance Fund is providing assistance in this case in the form of amicus briefs.
AMERICANS WITH DISABILITIES ACT
Ohio district court grants summary judgment to district that went through a “thorough interactive process” under the Americans with Disabilities Act (ADA) with a visually impaired teacher.
Poston v. Massillon City Schools, N.D.Ohio No. 5:16-cv-3013, 2018 U.S. Dist. LEXIS 110164 (July 2, 2018).
Nicole Poston was a visually impaired teacher who has been employed by the Massillon City School District since 2002. Throughout Poston’s employment, she consistently received positive evaluations.
The district required teachers to attend regular staff meetings and trainings, which included full-day in-service sessions. These meetings often featured visual presentations and written materials in the form of handouts for participants. From 2002 through 2013, the district consistently provided reasonable accommodations, as required by ADA, to Poston without any indication that it was difficult or burdensome.
In 2014, Poston filed an internal Equal Employment Opportunity (EEO) complaint because the school refused to reschedule the time of a meeting due to her disability-related travel restrictions. In early 2014, the district met with Poston to discuss her concerns and signed a letter memorializing the reasonable accommodations that would be provided. Despite its attempts to comply, the district acknowledged that there were times following the execution of the plan when outside presenters didn’t initially provide materials in an accessible format, and one time the district itself failed to do so.
In the fall of 2014, Poston notified the school that there were problems with implementation of her reasonable accommodations and she met with the district to discuss her concerns. The school proposed a second accommodation plan, which was memorialized in a letter. The letter also asked Poston to advise the school as soon as possible anytime she experienced issues with an accommodation and stressed the importance of open dialogue anytime there were issues or problems. Poston advised that she was not satisfied with everything in the letter and advised that she was considering filing multiple additional charges through the Equal Employment Opportunity Commission (EEOC) against the school. The district requested additional clarification, which Poston did not provide.
In December 2014, Poston stated that she had documented approximately 18 instances when the school failed to honor and provide accommodations that were requested and discussed. These issues were not shared with the school at the time they occurred. The district requested additional information about the alleged lack of accommodations. Instead of responding to the district’s request, Poston utilized the school’s internal EEO complaint form to identify seven instances when accommodations were not provided. When the school failed to acknowledge or respond to the written complaints, Poston filed appeals pursuant to the EEO policy.
In the fall of 2015, Poston participated in two meetings with the school and its legal counsel to discuss the denial of reasonable accommodations. The school decided to refer Poston’s complaints to an outside investigator, who met with Poston to discuss the complaints she had filed against the district. In November 2015, the investigator issued a response concluding that there was not a clear and mutual understanding regarding Poston’s requested accommodations and suggested another meeting to discuss accommodations and come to a written agreement. Poston filed another internal EEO complaint five days later. On Dec. 30, 2015, Poston filed a second EEOC charge against the school, wherein she alleged that she was discriminated against on the basis of her disability and retaliated against for filing her first charge.
On Jan. 25, 2016, Poston participated in a meeting with the school and its legal counsel wherein the school again asked her to identify in writing the accommodations she was requesting. Poston delivered her written list on Feb. 11, 2016. Additional meetings were conducted throughout the spring, summer and fall. A third agreement regarding accommodations was finalized on Jan. 18, 2017. Poston nonetheless continued to assert that the failures to accommodate continued.
The court granted the district’s motion for summary judgment on the matter, citing the “strong, unrefuted evidence of very extensive, good faith efforts on the part of the school to reach agreement with Poston as to reasonable accommodations, with a thorough interactive process, including many meetings over long periods of time and three separate written accommodation plans.” The court also found that Poston routinely failed to “promptly inform” the school whenever the agreed-upon accommodations were not provided, and that these delays in communication rendered a more immediate response by the school nearly impossible.
AMERICANS WITH DISABILITIES ACT – DUE PROCESS
U.S. district court denies board’s motion to dismiss when a student with a disability allegedly was sexually assaulted after a sexually aggressive student was placed in the same classroom.
Doe v. Jackson Madison Cnty. Bd. of Edn., No. 17-01174-STA-egb, 2018 U.S. Dist. LEXIS 95649 (June 7, 2018).
Parent, Mary Doe, brought a claim under the Rehabilitation Act and Americans with Disabilities Act (ADA) against the Jackson Madison County Board of Education on behalf of her daughter, Jane Doe.
Jane Doe, is a special education student with cognitive and social skill deficits who was diagnosed with autism spectrum disorder when she was two. When she was 19, Jane was placed in a “Social Based Skills” (SBS) classroom with four other male students with autism. During December 2016, an 18-year-old special needs student, Charlie Smith, who was intellectually disabled and had been diagnosed with a “sexually aggressive disorder” was placed in the SBS classroom. Doe claimed that the board neglected to conduct any evaluations or develop an individualized education program (IEP) for Smith prior to placing him in the SBS classroom, and that school personnel were not trained or provided with any protocol about his known sexual aggression. Jane allegedly was sexually assaulted by Smith in North Side High School’s SBS classroom when the supervising teacher was occupied with another student.
Mary was not made aware of any investigation of the incident or disciplinary action taken against Smith. After the incident, Mary kept Jane home for the remainder of the school year. In April 2017, the board conducted an IEP meeting for Jane and recommended that she attend North Side High School’s “Transition Academy.” Mary kept Jane home as the board could not assure Mary that Jane would not come into contact with Smith in this new setting.
The board filed a motion to dismiss Doe’s complaint arguing that she failed to allege that Jane was excluded from a program because of her disability as the complaint states that she was assaulted due to her gender. However, Doe countered that her amended complaint provided sufficient facts to establish that Jane was excluded based on her disability as the board placed Smith in a self-contained classroom where Jane was incapable of defending herself because of her disability. The court found that Doe sufficiently alleged that Jane was assaulted because of her disability, and also offered supporting facts related to the alleged disability-based discrimination against her. As a result, the court denied the board’s motion to dismiss Doe’s claims.
Ohio common pleas court finds school district did not violate the terms of a collective bargaining agreement by nonrenewing two limited, one-year nonteaching employees’ contracts.
United Electrical Radio and Machine Workers of America v. Highland Local School Dist. Bd. of Edn., Morrow C.P. No. 2017-CV-00309 (June 14, 2018).
Caroline Myles and Joanie Manning were hired as bus drivers by the Highland Local School District Board of Education on Aug. 8, 2016, under one-year limited contract-classified employee contracts. On May 11, 2017, the district notified Myles and Manning that neither would be reemployed at the expiration of their limited contracts, which was to occur on Aug. 31, 2017. Myles and Manning were classified employees covered by the collective bargaining agreement (CBA). The CBA, provided that just cause was required for the district to discipline or discharge an employee-member of the bargaining unit (Article 36.01). It also defined the term grievance and provided for a grievance procedure.
Myles and Manning argued that the board’s nonrenewal of their one-year limited contracts was a violation of the CBA, and asserted that, as a result, they had a grievance and were entitled to arbitration. They argued that Article 36.01 superseded Ohio Revised Code (RC) 3319.081, which discusses contracts for nonteaching employees, and therefore required a showing of just cause for their nonrenewal.
The board argued that Article 36.01 did not apply in this situation because it did not address reemploying an employee on a limited, one-year contract at the end of the employee’s year of work, and therefore, the board was not required to show just cause to nonrenew. As a result, the board argued that there was no grievance, and Myles and Manning were not entitled to arbitration.
In considering whether the CBA specifically addressed the issue of not renewing an employee at the end of his or her limited, one-year contract, the court highlighted the fact that discharge and nonrenewal of an employee are two distinctly different actions on the part of the employer. While CBA Article 36.01 addressed discharge and discipline of employees, the court found that it did not specifically address the issue of limited, one-year contracts for nonteaching employees. In finding this, the court applied RC 3319.081 and held that the board of education was entitled to not renew Myles’ and Manning’s contracts pursuant to the statute, and in doing so, did not violate the CBA. As a result, there was no proper grievance, and no matter subject to arbitration.
ARBITRATION – REDUCTION OF HOURS
Arbitrator finds that school district did not violate the collective bargaining agreement when it reduced the hours of bus drivers for the 2017-18 school year.
In re arbitration between Cambridge City School Dist. Bd. of Edn. and OAPSE/AFSCME Local 4/AFL-CIO and its LOCAL #132, Arbitrator Jerry A. Fullmer, (Apr. 24, 2018).
At the beginning of the 2016-17 school year, the Cambridge City School District Board of Education employed 10 bus drivers. All but two of the bus drivers worked a 5.5-hour schedule. The remaining two drivers were Rebecca Hanes, who worked a 6.5-hour schedule, and Melissa Wheeler, who worked a 3.5-hour schedule. All bus drivers were included in the nonteaching employees’ bargaining unit and therefore covered by the collective bargaining agreement (CBA). Under CBA Section 14.06, only employees working a minimum of 25 hours per week were entitled to group “major medical and hospitalization coverage.” As a result, during the 2016-17 school year, all bus drivers except Wheeler were eligible for insurance coverage.
Near the end of the 2016-17 school year, the district reviewed its operations and determined that spending reductions were necessary due to declining enrollment. As a result, Dan Coffman, the district’s superintendent, determined that reducing bus drivers’ hours would achieve the necessary spending reductions. These reductions did not, however, cause any of the nine drivers previously eligible for insurance coverage to lose that eligibility, as they still would have met the 25 hours per week minimum CBA requirement. The schedule of bus driver hours for the 2017-18 school year provided for a .5-hour reduction for all drivers, except Hanes, whose hours were reduced by 1.5 hours from the previous school year. As a result, the union filed a grievance on Aug. 9, 2017, asking that hours not be reduced, but rather that a position be reduced instead if necessary. The grievance proceeded through the appropriate process, which resulted in this arbitration.
The arbitrator considered whether the district violated the CBA when it reduced the bus drivers’ hours for the 2017-18 school year and, if the district’s actions were found to be a violation, the remedy that should be applied. At arbitration, the union took the position that CBA Article 10 regarding Layoff and Recall specified a procedure to be followed, and because that procedure was not followed, the CBA was violated.
The district argued that the arbitrator should consider the whole contract and not just one Article. The district argued that the union focused solely on Section 10.01, which was inapplicable in this situation because it applied to the reduction in the number of positions, not reductions to hours. The district noted that, while the union was made aware of the superintendent’s planned reductions, it failed to introduce any provisions in the negotiations to limit any such reductions. The district went on to argue that the reduction of bus driver hours represented the district’s exercise of management rights, which are provided for by CBA Article 5. Article 5 permitted the district to decrease work hours and did not deem such action an abuse of discretion. In addition to its argument that the superintendent acted within management rights, the district also argued that he had an extremely rational basis for doing so.
The arbitrator found that the reduction of hours was not the same as a layoff as provided for in Section 10.01 and therefore Section 10.01 was not relevant to the issue at hand. The arbitrator also found this to be supported by Section 16.07 – Assignment of Work, which clearly differentiated eliminating a job from reducing an employee’s hours. As a result, based on the analysis of Section 5.01, which enumerated “Board Rights,” the arbitrator found that management rights provided for by the CBA were broad enough to permit the reduction of hours in question and the district did not violate the CBA when it reduced the bus drivers’ hours for the 2017-18 school year.
District court allows breach of contract claim filed by a residential school for students with disabilities against a school district to continue, then dismisses case after parties reach a settlement.
Pressley Ridge School for the Deaf v. Graham Local School Dist. Bd. of Edn., S.D.Ohio No. 3:17-cv-00166, 2018 U.S. Dist. LEXIS 84810 (May 21, 2018).
Pressley Ridge School for the Deaf v. Graham Local School Dist. Bd. of Edn., S.D.Ohio No. 3:17-cv-00166, (June 29, 2018).
J.D., a deaf and autistic student with a history of violent behavior, attended school in the Graham Local School District where his parents lived. Beginning in the 2015-16 school year, the district and J.D.’s parents entered into an agreement under which J.D. was placed at Pressley Ridge School for the Deaf (Pressley Ridge), a residential school in Pennsylvania. The agreement stated that Pressley Ridge was the least restrictive environment, under the Individuals with Disabilities Education Act (IDEA), for J.D.’s education.
In August 2016, J.D.’s individualized education program (IEP) team, including his parents and representatives of Pressley Ridge and the district, met and agreed to an IEP for the 2016-17 school year. The IEP agreed to continue J.D.’s placement at Pressley Ridge. At that meeting, J.D.’s parents explained that they would be leaving the country for an extended mission trip in Nicaragua.
After August 2016, the relationship between Pressley Ridge and the district deteriorated. In February 2017, the district sent a letter to Pressley Ridge stating that it was not responsible for payment of any fees for J.D.’s education for the 2016-17 school year. The district stated that neither J.D. nor his parents resided in the district. The district argued that the grandparent power of attorney J.D.’s parents had executed with his maternal grandmother was void, and that the district had challenged the power of attorney in Champaign County Juvenile Court. (SLS 2017-3.)
Pressley Ridge filed suit against the district alleging breach of contract for failing to pay for J.D.’s education at Pressley Ridge after Sept. 30, 2016, and also unjust enrichment. In its May 21 decision, the district court dismissed the unjust enrichment claim. However, the court allowed Pressley Ridge’s breach of contract claim to continue because the amended complaint alleged sufficient facts which, if true, could plausibly assert that there was a valid contract between the parties for the 2016-17 school year. In its June 29 decision, the court dismissed the case after the parties reached a voluntary settlement.
COLLECTIVE BARGAINING – AGENCY SHOP
U.S. Supreme Court holds that the First Amendment prohibits public sector unions from collecting agency/fair share fees from non-members, overturning previous, long-standing legal precedence.
Janus v. AFSCME, Council 31, ___ U.S. ___, 138 S.Ct. 2448, L.Ed.2d 924 (2018)
https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf
The facts of this case previously were addressed in SLS 2017-4. In a 5-4 decision, the U.S. Supreme Court held that the State of Illinois’ extraction of agency fees from nonconsenting public-sector employees violated the First Amendment, and as a result, overturned the court’s previous holding to the contrary on this issue from Abood v. Detroit Bd. of Education. The court stated that requiring individuals to endorse ideas they disagree with runs counter to First Amendment principles. Even under a more permissive standard than the “exacting” strict scrutiny the court had applied in evaluating the constitutionality of agency fees in the past, the Illinois scheme could not pass muster.
The court explained that neither of Abood’s two justifications for agency fees (maintaining “labor peace” and eliminating the risk of “free riders”) could survive under this standard, finding that both problems could be mitigated through means less restrictive than agency fees. The court also rejected the newly asserted state interests claim that a sufficiently funded union/agent was necessary for effective collective bargaining and to increase workforce efficiency, and as aresult, unions could not be effective without agency fees.
The court also noted that stare decisis did not require deference to Abood, finding that Abood was poorly reasoned and lacked workability, and that, over time, it had become an “outlier” in the court’s First Amendment jurisprudence. It also stated that Abood’s uncertain status, along with the short-term nature of collective bargaining agreements and unions’ abilities to protect themselves when agency-fee provisions were critical to their bargains all militated against giving Abood decisive weight.
For these reasons, the court concluded that the collection of agency fees from nonconsenting employees was a violation of the First Amendment, and no further agency fees or other forms of payment to a public-sector union could be collected, nor could attempts be made to collect such payments, from employees without their consent.
District did not discriminate or retaliate against employee based on gender or use of Family and Medical Leave Act (FMLA) leave.
Redlin V. Grosse Pointe Pub. Schools, E.D.Mich. No. 16-CV-14051, 2018 U.S. Dist. LEXIS 78668 (May 10, 2018).
Debra Redlin was employed as an assistant principal at Grosse Pointe South High School along with another assistant principal, Terry Flint. In early 2014, Redlin and Flint were alerted by the deputy superintendent that one of the district’s employees was thought to be intoxicated, the employee was to be “spot-checked” and neither Redlin nor Flint was permitted to warn the employee. Flint did warn the employee although he initially denied doing so. Redlin attested to the fact that Flint provided the employee advance notice of the check, which resulted in Flint receiving a letter of censure in his file and being threatened with suspension.
Later in 2014, a new South High School principal was hired. The new principal reorganized the central office. As part of that process, Redlin and Flint began sharing a secretary and had their duties reapportioned. Redlin felt the changes resulted in her having more work, but less administrative support. Subsequently, Flint, Redlin and their shared secretary became involved in additional incidents which required intervention and investigation by the deputy superintendent. During this time, Redlin also received a “minimally effective” rating on her evaluation. In 2015, the district hired a new superintendent, who transferred Redlin to another school building, which she felt was a demotion. Also, because of her poor evaluation rating, Redlin was assigned three evaluators, which she characterized as “bullying.”
Redlin then took a medical leave of absence for psychiatric reasons. A month after returning from medical leave, she received emails from the superintendent regarding her evaluations for that school year, which were described as “problematic.” Redlin filed a complaint against the district, claiming continued harassment and retaliation. The district’s attorney conducted an independent investigation and found no violations of district policies. Later, Redlin filed a lawsuit claiming gender discrimination/sexual harassment and retaliation.
The court considered Redlin’s gender discrimination complaint in light of whether Flint, who allegedly engaged in similar conduct, was treated differently. The court looked at the record and found no reasonable jury could find Redlin suffered an adverse employment action or that Flint was treated differently. In her testimony, Redlin was asked several times whether she felt her discipline/demotion was related to her gender, to which she consistently replied “no.” The court also found no reasonable jury could find that her workload was increased because of the job duties reassignment. While the court found that Redlin may have been disrupted by the reassignment, it also noted that disruptions alone were not enough to prove discrimination.
In reviewing the retaliation complaints, the court found that for each of Redlin’s complaints against the district, a legitimate, reasonable and non-discriminatory explanation was proffered, which Redlin did not dispute. The final charge the court examined was whether the district retaliated against Redlin when she took FMLA leave. The court noted that while Redlin stated she had the “impression” of being retaliated against, no reasonable jury could find that the district retaliated against her based on the facts of the case.
Tennessee district court denies county’s motion for summary judgment on claims by former employee that he was terminated because of his political speech and conduct.
Henry v. Roane Cty., E.D.Tenn. No. 3:16-CV-689, 2018 U.S. Dist. LEXIS 89025 (May 29, 2018).
https://www.leagle.com/decision/infdco20180530f98
Jim Henry worked for the Roane County Highway Department from 1985 to 2016. Dennis Ferguson was elected to the position of county road superintendent in 2012. When Ferguson ran for election in 2012, and re-election in 2016, Henry openly supported another candidate, Brian Mullins. Ferguson terminated Henry’s employment on Apr. 26, 2016, because of Henry’s disruptive influence on Ferguson’s staff, employees and unit. Among other things, Henry urged his fellow employees to vote for Mullins and said that, if elected, Mullins would make Henry foreman, and told Mullins about the poor condition of some of the roadways under Ferguson’s management.
On Dec. 31, 2016, Henry filed a complaint against Roane County, alleging that his termination was retaliation in violation of 42 U.S.C. 1983 due to his political beliefs, affiliation, speech and/or conduct. He included a claim for punitive damages and brought one additional claim under state law.
The county filed a motion for summary judgment on the Sec. 1983 claim because Henry’s speech was not protected speech, Henry’s affiliation with Mullins’ campaign was not a substantial factor causing his termination, and Henry would have been terminated even without his affiliation with Mullins. The court denied the county’s motion because Henry met the three elements required to establish a prima facie case: (1) he engaged in protected conduct; (2) an adverse action that would deter a person continuing to engage in the protected conduct was taken against him; and (3) there was a causal connection between the protected conduct and the adverse action.
In denying in part the county’s motion for summary judgment, the court held that: (1) Henry’s comments, encouraging co-workers to vote for a specific candidate and revealing the poor condition of roadways in the county, touched on matters for public concern and were protected speech; (2) Henry’s firing was an adverse employment action; and (3) there was a genuine issue of material fact on the basis of Henry’s termination and whether there was a causal connection between his protected speech and his termination. The court, however, granted summary judgment to the county and dismissed Henry’s other claims for punitive damages and violation of state law.
U.S. Supreme Court holds that citizen can pursue a claim that his arrest is retaliation for past speech, in violation of the First Amendment, even if there is probable cause for the arrest.
Lozman v. City of Riviera Beach, ____ U.S. ____, 138 S.Ct. 1945, 201 L.Ed.2d 342 (2018).
https://www.supremecourt.gov/opinions/17pdf/17-21_p8k0.pdf
On Nov. 15, 2006, Fane Lozman, a Floridian residing in Rivera Beach, was arrested at a city council meeting. Lozman, who lived in a floating home in a slip at the city-owned marina, opposed the city’s plan to redevelop the marina using eminent domain. He often attended council meetings and made critical comments during the public comment portions of those meetings. He also filed a lawsuit alleging that the city council had violated Florida’s open meetings laws when it approved an agreement with developers working on the marina redevelopment. He alleged that, during an executive session, the council members devised an official plan to intimidate him in retaliation for his opposition to the city’s plans.
During the public comment portion of the Nov. 15 council meeting, Lozman talked about the arrests of officials from other jurisdictions. When he refused a council member’s request to stop making his remarks and leave the podium, the council member asked a police officer in attendance to carry Lozman out. The officer handcuffed Lozman, ushered him from the meeting, and arrested him for disturbing a lawful assembly by violating the city council’s rules of procedure when he discussed issues unrelated to the city. Lozman claimed the arrest was part of the city’s retaliation plan. While the state’s attorney concluded that there was probable cause for Lozman’s arrest, the charges were dismissed.
In February 2008, Lozman filed suit against the city under 42 U.S.C. 1983, alleging that a number of incidents, including the arrest, demonstrated the city’s purpose to harass him. The district court instructed the jury that, in order for Lozman to prevail on his claims, it must find that the officer had no probable cause to arrest him. The jury found for the city on all of Lozman’s claims and the Eleventh Circuit Court of Appeals affirmed. The court of appeals concluded that the existence of probable cause defeated Lozman’s First Amendment claim for retaliatory arrest.
The U.S. Supreme Court granted certiorari on the question of whether the establishment of probable cause defeated a claim of retaliatory arrest under the First Amendment as a matter of law. In an 8-1 decision, the court concluded that the existence of probable cause for an arrest does not bar the arrested person’s First Amendment retaliatory arrest claim under the circumstances of this case.
In an opinion written by Justice Kennedy, the court explained that Lozman had conceded that probable cause existed for his arrest but claimed that it was in retaliation for his earlier protected speech, an open-meetings lawsuit and public criticism of city officials. In order for the city to be subject to liability under Sec. 1983, the court stated that Lozman needed to show that he suffered harm because his arrest was ordered as part of an “official municipal policy.” The court did not reach the questions of whether an official city policy existed or what that policy might be.
The court examined two earlier U.S. Supreme Court decisions on the central issue of probable cause barring a claim for retaliation. The first, Mt. Healthy City School Dist. Bd. of Edn. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), was cited by Lozman. In Mt. Healthy, a school district decided not to rehire a teacher after the teacher engaged in a number of actions that indicated an unprofessional demeanor. One of the actions involved protected speech. The court concluded that an employer could not be liable for a violation of the First Amendment for an alleged retaliatory employment action unless the alleged constitutional violation was a but-for cause of the employment action.
The second, Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), was cited by the city. In Hartman, the court concluded that a person alleging retaliatory prosecution must show the absence of a probable cause for the underlying arrest. If probable cause for the arrest exists, the claim ends.
The court agreed with the reasoning in Mt. Healthy, and concluded that Lozman could bring a claim of retaliatory arrest against the city even if there was probable cause for his arrest, provided that Lozman could prove that he suffered harm as a result of an official municipal policy. The court remanded the case to the court of appeals.
Michigan court denies district’s motion to compel a mental and physical examination of student and grants parents’ motion to exclude district’s experts’ reports.
A.A. v. Walled Lake Consol. Schools, E.D.Mich. No. 16-14214, 2018 U.S. Dist. LEXIS 63449 (Apr. 16, 2018).
https://scholar.google.com/scholar_case?case=1826116784405417090&hl=en&as_sdt=6&as_vis=1&oi=scholarr
The parents of a child with Down syndrome and speech apraxia filed a lawsuit under the Individuals with Disabilities Education Act (IDEA). The parents wanted the district to place their son in a general education classroom; the district wanted to place the student in a classroom with cognitively impaired students. The parents contended that the district denied their child of a free appropriate public education (FAPE) in the least restrictive environment. The court had previously considered and denied motions by the district to dismiss the parents’ claims. (SLS-2017-3.)
In this decision, the court considered two subsequently filed discovery motions, one filed by each of the parties. The district sought an additional physical and mental examination of the student. The parents opposed the motion on the basis that the district already had engaged in extensive testing and observation of the student. Further, at a hearing in April 2018, the parents stated that there had been no change in the student’s condition since September 2016. The district’s counsel stated that, given this information, the district had no need for additional evaluations. The court dismissed the district’s motion as moot.
The second discovery motion, filed by the parents, sought to exclude some of the district’s witnesses from testifying in the case. The parents argued that the district failed to comply with Rule 26 of the Federal Rules of Civil Procedure because the reports initially filed by its experts were not drafted or signed by the experts, and that later-signed reports did not include the facts and opinions on which the experts would testify.
The district argued that, because the court was considering an administrative appeal, expert reports were not required under an exception to Rule 26 (Fed.R.Civ.P. 26(a)(1)(B)). The court rejected this argument on the basis that, in appeals under IDEA, the court is not confined to the administrative record and administrative appeals are not exempted under the cited provision when additional evidence will be presented.
The court granted the parents’ motion, striking the reports provided by the district’s experts. However, it allowed the two witnesses to offer testimony on the facts and opinions upon which they testified during the administrative hearing and in their depositions.
Tennessee court finds that the parents of two students with individualized education programs (IEP) failed to state a claim for denial of a free appropriate public education (FAPE).
M.C. v. Knox Cnty. Bd. of Edn., E.D.Tenn. No. 3:17-CV-337, 2018 U.S. Dist. LEXIS 95943 (June 7, 2018).
https://www.leagle.com/decision/infdco20180608g21
This case involved two students with Down Syndrom, M.C. and C.L., attending school in the Knox County School System in Tennessee. During the 2013-14 school year, M.C.’s IEP called for thirty minutes for staff to modify education materials and was listed on the “Special Education and Related Services” page of her IEP. In April 2015, the board removed the duration and frequency of the planning time for material preparation without issuing a Prior Written Notice (PWN). In August 2016, M.C.’s parents requested that the time allowed for staff to modify educational material be added back into the IEP. The board then issued a PWN to explain that the planning time was removed because curriculum preparation is a teacher responsibility and not an additional service to be included in the IEP. While M.C.’s IEP does not document the time for material modification, she still was educated within the general education classroom.
M.C.’s parents requested a due process hearing and argued that preparation of materials is a service that must be documented in the IEP. The board moved to dismiss for failure to state a claim and on June 29, 2017, the administrative law judge granted the board’s motion as “the petitioners have provided no legal authority to bolster [their] claim.”
During 2016-17 school year, C.L.’s IEP included two hours per week for staff to modify materials which was listed on the “Special Education and Related Services” page of her IEP. In April 2017, C.L.’s parents requested that the time allowed for material modification be increased to five hours per week. The board issued a PWN proposing that all curriculum modification time be removed from C.L.’s IEP.
C.L.’s parents requested a due process hearing objecting to the board’s position that the time need not be documented because staff are expected to allot time for education material planning and preparation, which the board subsequently moved to dismiss. On June 6, 2017, the administrative law judge granted the board’s motion to dismiss, finding that the parents provided no legal authority to bolster their claim.
On Aug. 4, 2017, M.C. and C.L.’s parents filed a claim under the Individuals with Disabilities Education Act (IDEA), the American with Disabilities Act (ADA), and Sec. 504 of the Rehabilitation Act. The parents argued that both students’ IEPs were defective because the district removed the language specifying the amount of time spent for curriculum modification. The parents contended that the time for material preparation must be included in a student’s IEP as either a “service” or as “support for school personnel.” While the district agreed that staff time should be dedicated and is necessary for modifications to occur, they argued that they were not legally required to document that time in the IEP.
The court considered whether “material preparation/curriculum modification time” would be considered a supportive service to assist a child with a disability to benefit from the special education. While IDEA requires that each student with an IEP be provided with special designed instruction that may require a certain amount of curricular modifications, IDEA “does not require that the time spent preparing to provide that instruction be documented in the same manner as other ‘related services.’” The court noted that the parents did not allege that the required modifications in the IEP were not being provided, nor did they maintain that either student had been denied FAPE due to the removal of time for material preparation. The court also stated that material preparation is not defined under “supplementary aids and services” nor under “supports for school personnel,” and IEPs “are not rendered defective simply because they fail to include a single sentence describing the amount of time that must be spent preparing classroom materials.”
The court then addressed the parents’ claim of a procedural violation of IDEA due to the district’s belated PWN. The court found that dismissal was proper as the district only needed to issue a PWN when it proposed or refused to initiate or change “the identification, evaluation, or educational placement of the child,” or the provision of FAPE to the child. The court determined that time for modifying classroom materials was not included in that definition. Since the parents failed to produce any factual support that M.C. and C.L. were at “serious risk” of segregation if the time for curricular modification was not added back into their IEPs, the court found that they failed to state a claim.
While the court acknowledged the frustration that may result from the board’s refusal to document the time allotted for curriculum modification and preparation, the court noted that it cannot order the board to include the time in the students’ IEP absent some legal basis and granted the defendants motion to dismiss.
Tennessee district court dismisses parents’ claim that school district employees filed Department of Children’s Services (DCS) claims against them in retaliation for advocacy for their son.
M.L. v. Williamson Cty. Bd. of Edn., M.D.Tenn. No. 3:16-cv-1093, 2018 U.S. Dist. LEXIS 98523 (Jun. 12, 2018).
https://scholar.google.com/scholar_case?case=8485840382639866260&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Student J was diagnosed with attention deficit hyperactivity disorder and oppositional defiant disorder. J attended second grade at Kenrose Elementary in the Williamson County School District in Tennessee and had an individualized education program (IEP) and a behavioral intervention plan (BIP).
During the school year, J’s teachers observed behaviors on several occasions that caused them to be concerned that J was being subjected to abuse. Over the course of the year, district employees filed three DCS reports about J. The reports described J’s statements that his father was punishing him by twisting his arms and pinching his nose. They also described J’s behavior of a sexual nature involving another student, including putting his head on, and hitting, the other student’s bottom. The employees were concerned about the sexual nature of the behavior because J was seven at the time.
The reports were investigated and resulted in a non-custodial permanency plan for J and his family, recommending that J not be permitted to be alone with his brothers, and a psychiatrist’s note recommending that J’s mother, M.L., should not leave J alone with his father. All three reports were closed.
In this lawsuit, parents alleged that the district violated Sec. 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA) and the First Amendment when its employees filed DCS reports in retaliation for his mother’s advocacy for her son in IEP meetings and other settings. Both Sec. 504 and ADA prohibit retaliation against any person seeking to enforce rights under the Individuals with Disabilities Education Act (IDEA).
With respect to the first DCS report, the court concluded that the parents could not establish a prima facie case of retaliation because they could not show a causal connection between the parents’ advocacy for their son and the adverse action (filing of the DCS report).
With respect to the other two reports, the court found that the parents had established all of the required elements of a prima facie case of retaliation prohibited by Sec. 504 and ADA – the parents engaged in a protected activity by seeking to enforce their rights under IDEA, the school knew of the protected activity, the school took an adverse action by filing the two reports, and there was a causal connection between the activity and the adverse action. However, the court concluded that the district had a non-discriminatory basis, pursuant to state law that required them to report harm reasonably suggestive of child abuse, for filing the DCS reports, and the parents could not show that the basis asserted by the district was pretextual.
The court also concluded that the parents had established a prima facie case for their First Amendment retaliation claim, but that the district showed that its employees would have filed the DCS reports even in the absence of the protected activity. The district’s motion for summary judgment was granted and the case was dismissed.
INDIVIDUALS WITH DISABILITIES – EXHAUSTION OF REMEDIES
U.S. district court finds student’s Sec. 504 denial of FAPE claim is subject to the Individuals with Disabilities Education Act (IDEA) exhaustion of remedies requirements.
L.G. v Fayette Cty. Ky. Bd. of Edn., E.D.Ky. No. 5:18—202-DCR, 2018 U.S. Dist. LEXIS 97995 (June 12, 2018).
https://www.courtlistener.com/recap/gov.uscourts.kyed.85652/gov.uscourts.kyed.85652.12.0.pdf
L.G., a former student at Morton Middle School, was diagnosed with an e-coli infection in September 2016, which resulted in him being unable to attend school. His mother contacted the school administration and provided a medical statement from L.G.’s physician stating that he would not be allowed to return to school for some time. L.G.’s mother later found out, due to his failing grades, that the physician’s statement hadn’t been accepted by the school. In November 2017, L.G. and his parents were contacted by a social worker about a complaint that L.G. was dependent, neglected or abused. His parents also were made aware that a truancy petition had been filed against them for his absences. L.G. was approved for homebound instruction in January 2017, and the truancy charges were withdrawn.
L.G.’s parents withdrew him from Fayette County Public Schools in March 2017 and filed a complaint alleging that the Fayette County Public Schools Board of Education had failed to identify L.G. as a child with a disability, and, as a result, he was denied a free appropriate public education (FAPE) in violation of Sec. 504 of the Rehabilitation Act. The board argued that, even though he didn’t bring a claim under IDEA, he was required to comply with IDEA’s exhaustion requirements and, in failing to do so, L.G. failed to exhaust his administrative remedies. L.G. argued that he should not have been required to exhaust administrative remedies because IDEA did not offer him the same relief as a successful Sec. 504 claim. The court disagreed, citing a Sixth Circuit decision in which the court found the fact that a plaintiff was seeking certain relief did not itself excuse the exhaustion requirement.
L.G. then argued that, under the U.S. Supreme Court’s decision in Fry v. Napoleon Community School, he should not have been required to exhaust his administrative remedies because exhaustion was not required based on the answers to the two questions provided for in that case. He argued that: 1) a denial of equal access claim could have been brought against the public entity; and 2) he, like a teacher or volunteer at the school, was denied access to all facilities solely due to his disability.
The court disagreed, citing the fact that L.G.’s claim was for a denial of FAPE based on the board’s failure to identify his disability, not that he was denied equal access to the facility. Because the claim expressly sought relief for denial of FAPE, the court found that it could not have been brought if the alleged conduct occurred at a public facility that was not a school, and that an adult at the school could not have pressed essentially the same claim. As a result, the court found that L.G.’s Sec. 504 claim was subject to IDEA’s exhaustion requirements.
INDIVIDUALS WITH DISABILITIES – EXHAUSTION OF REMEDIES
Court finds that IDEA-based claims require exhaustion of administrative remedies prior to court action.
P.G. v. Rutherford Cty Bd. of Edn., M.D.Tenn. No. 3:17-cv-01115, 2018 U.S. Dist. LEXIS 89224 (May 29, 2018).
https://www.leagle.com/decision/infdco20180530g05
P.G. was a six-year-old boy who had developmental disabilities, was non-verbal, confrontational, and prone to wandering or escaping behavior. In May 2016, P.G.’s teacher placed him in mechanical restraints and fed him crackers in order to keep him quiet during a graduation ceremony even though he was not misbehaving at that time. P.G. alleged that these restraints illegally restricted his movement and humiliated him.
During the following school year, P.G. attended kindergarten where, because of his disability, his classroom teacher started abusing him. P.G. alleged that he was treated differently than children who were verbal and non-confrontational and handled “roughly,” scratched and choked around his neck. He also was struck in the face by his teacher, which was witnessed by other educational assistants and reported to the police. P.G.’s parents were notified several hours later about the incidents that occurred that day. P.G., by and through his parents, sued the Rutherford County School District for violations of the Individuals with Disabilities in Education Act (IDEA), Title II of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Tennessee Special Education Behavior Supports Act (SEBSA) and the state’s common law of negligence.
The district court began its analysis by carefully evaluating the legal standards and purpose of both IDEA and ADA, noting the administrative mechanisms for resolving disputes. The IDEA dispute resolution procedure provides for an impartial due process hearing and an appeals process and requires parties to use this process even if they are pursuing relief under other federal laws. These administrative remedies also must be exhausted before an appeal can be filed in state or federal court. In P.G.’s situation, such administrative remedies had not been pursued.
The court found that the illegal use of physical restraints was a claim expressly brought under IDEA and SEBSA, thus requiring exhaustion of remedies under those provisions prior to an appeal to the courts. The court also found though that claims of physical abuse over the 2016-17 school year, did not require exhaustion of administrative remedies because those claims were not related to a denial of a free appropriate public education.
As a result, the court dismissed all claims in which an administrative remedy could have properly been pursued but allowed the ADA and Sec. 504-based claims regarding physical abuse to proceed.
NONTEACHING EMPLOYEE – COMPENSATION
Ohio district court finds genuine issue of material fact as to whether transportation supervisor is contractually entitled to accrued compensatory time.
Swysgood v. Bd. of Edn., N.D.Ohio No. 5:17CV697, 2018 U.S. Dist. LEXIS 103243 (June 20, 2018).
Scott Swysgood began working as the transportation coordinator/head bus mechanic for the Northwestern Local School District in January 2012. The district had three types of employees: 1) hourly employees; 2) administrative employees; and 3) certified employees. The parties dispute whether Swysgood was an hourly employee or an administrative employee. Swysgood contended that he worked as an hourly employee rather than an administrative employee and was thereby entitled to the more than 4,912 hours of compensatory time he accrued during his employment with the district.
In the summer of 2016, Swysgood wrote a letter to the school board stating that he intended to use his available compensatory time “to run out [his] current 2016-2017 school year contract.” Swysgood’s contract for the 2016-2017 school year began on Aug. 1, 2016. The district rejected Swysgood’s request, arguing that Swysgood would not be able to meet his job responsibilities if he took an entire year off work. Swysgood claimed he was up to date with his responsibilities and did not complete any work for the district beginning Aug. 1, 2016. He began working with a new employer, Frontz Drilling, and indicated to the district several times that he did not plan to return to work, but instead expected payment of his salary through compensatory time.
On Aug. 10, 2016, the board of education held a meeting, during which it accepted Swysgood’s resignation through job abandonment. Swysgood did not learn of this meeting until he received a letter stating that the board of education had accepted his resignation. Swysgood filed a lawsuit against the district, arguing that the district breached his employment contract.
Swysgood argued that it was undisputed that his employment contracts permitted him to accumulate compensatory time and that he was due compensation for that time. He pointed out that two of his contracts listed him as a support employee and support employees are entitled to payment for compensatory time. The district, on the other hand, argued that the designation of Swysgood as a support employee only appeared in the pre-printed portion of the contract and Swysgood’s title of “Mechanic/Transportation Supervisor” trumped the pre-printed language.
The court found the contracts to be ambiguous and found that a fact finder would be required to weigh the extrinsic evidence upon which the parties relied. As a result, the court rejected the parties’ requests for summary judgment on the breach of contract claim.
Swysgood also argued that the district failed to provide procedural due process when it took away his right to continuing employment and also denied payment for the compensatory time he accrued. The court found that Swysgood abandoned his job and, because of this voluntary resignation, he could not be found to have been deprived of an interest without due process of law. The court also rejected Swysgood’s due process claim on the issue of payment for the compensatory time, finding that the claim was improper since Swysgood could attain the relief he was seeking through a breach of contract claim.
Ohio Supreme Court rejects special master’s finding that Community College Foundation is the functional equivalent of a public office and therefore has a duty to produce a requested record.
Sheil v. Horton, 2018-Ohio-2355.
http://www.supremecourt.ohio.gov/rod/docs/pdf/13/2018/2018-Ohio-2355.pdf
William Sheil, a reporter with a television station, requested access to public records from Tri-C Community College Foundation that detailed contractual information for Octavia Spencer’s fee for speaking at an upcoming luncheon. The Foundation denied the request and because of the time-sensitive nature of the request, Sheil requested and the court appointed a special master in the cause and remanded the case to mediation. Subsequent efforts at mediation failed and the case was placed in front of the special master.
The special master determined that the Foundation was the functional equivalent of a public office, subject to the Public Records Act, and the speaker contract did not contain any material that would fall under the definition of trade secrets thus preventing its release. The Foundation filed objections to the special master’s report and Sheil responded by urging the court to overrule the Foundation’s objections and adopt the report without any modifications.
In its analysis of the case, the court applied the functional equivalency test that was established by the Supreme Court of Ohio in State ex. rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E. 2d 193. Under the test, a court must analyze all pertinent factors, including: 1) whether the entity performs a governmental function; 2) the level of government funding; 3) the extent of governmental involvement or regulation; and 4) whether the entity was created by the government or to avoid the requirements of the Public Records Act.
Applying the first factor of Oriana House, the court found that because the General Assembly permited state community colleges to obtain support from sources other than the government, there was support for the proposition that the receipt and solicitation of gifts in connection with an Ohio entity of higher education has evolved to become a governmental function. Analysis of the test’s second factor showed that the Foundation’s level of governmental funding was minimal. Under Oriana House’s third factor - the extent of governmental involvement - the special master had determined the Foundation and the college to be “closely intertwined” and the court found the special master’s determination to be supported by the evidence. The court, however, disagreed with the special master’s determination that the Foundation was created by the government. To the contrary, the court reviewed the incorporation articles and held that the Foundation was not created as an alter ego of the Community College to avoid the requirements of the Public Records Act. Therefore, all four Oriana House factors were not met and, as a result, the court rejected the special master’s finding that the Foundation was the functional equivalent of a public office.
The court also considered the special master’s finding that the contract with Octavia Spencer constituted a trade secret, noting that while the Foundation wanted the contract details to remain secret, they did not constitute a trade secret. The court cited the fact that speaking contracts, such as this, are readily available in the public domain. As a result, the court rejected the special master’s report and recommendation and found that it should not be adopted.
Ohio court holds that a public records request to Erie County elected officials was overly broad and ambiguous.
State ex rel. Bristow v. Wilson, 2018-Ohio-1973.
https://cases.justia.com/ohio/sixth-district-court-of-appeals/2018-e-17-060.pdf?ts=1526679611
Lonny Bristow made a public records request to Erie County elected officials for a variety of emails, employment applications, and personnel files. Bristow requested all emails sent and received by the Erie County elected officials between Sept. 3 and Oct. 3, 2017. Bristow also requested the personnel files for elected official Kevin Baxter and two of his employees, as well as all of the emails they sent and received from Oct. 13 to Nov. 13, 2017. After his request was denied, Bristow filed writs of mandamus requesting the office be compelled to release the requested records. In his motion for summary judgment, Bristow argued that the records he requested all were public records to which he had been wrongfully denied access.
The Erie County elected officials countered that Bristow’s public records requests were ambiguous and overly broad and, as a result, restricted by both Ohio Revised Code (RC) 149.43(B)(2) and Ohio case law. The court agreed with the elected officials that the request was ambiguous and overly broad and stated the public “office is permitted to deny the request but is required to provide the requester with an opportunity to revise the request.” Further, the court found that Bristow failed to meet the standard that “public records requests must be more narrowly-tailored than a blanket request for all documents of a certain type.” The court stated that the elected officials, although declining the requests as they were permitted to do, also complied by inviting Bristow to revise his requests, an invitation which Bristow declined. As a result, the court held that the elected officials sufficiently complied with RC 149.43(B)(2).
Ohio appellate court finds board of education’s claims based on tax-increment financing were time-barred under six-year statute of limitations.
Loveland City School Dist. Bd. of Edn. v. Symmes Twp. Bd. of Trustees, 2018-Ohio-1731.
http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2018/2018-Ohio-1731.pdf
In 1991, Symmes Township passed Resolution No. F-9101, which authorized and approved the Symmes Station Development Tax Increment Financing Project (STIF) declaring that infrastructure improvements in the vicinity were a public purpose and also authorizing a 100% real-property-tax exemption. The resolution stated that the exemption was to last for 30 years, subject to earlier termination.
In April 1993, Symmes Township passed resolution F-9303, which authorized the issuance of notes for financing public improvements. Symmes Township then entered into service agreements with owners of real property in which the owners made service payments in lieu of taxation (PILOT) in place of paying real estate taxes. The PILOT payments were paid into a tax-increment-equivalent fund to pay for the construction of public improvements and were to expire on Dec. 31, 2010. However, after the service agreements expired, Symmes Township continued to collect PILOT payments from the property owners. In 2003, Symmes Township amended the F-9101 resolution to specify that additional public infrastructure improvements could be funded by STIF.
The Loveland City School District Board of Education filed a complaint on March 11, 2016, alleging that refinancing the original STIF was the end of that debt and the project should have been terminated at that time. The board also alleged that the expansion of the scope of the public improvements funded by STIF was improper and Symmes Township had improperly spent PILOT payments.
The township filed a motion for summary judgment arguing that the board’s complaint was filed outside of the applicable statute of limitations. The trial court found the board’s claims to be time-barred applying the Ohio Revised Code (RC) 2305.07 six-year statute of limitations for actions “upon liability created by statute.” The board appealed the trial court’s judgment arguing that the 10-year statute of limitations set forth in RC 2305.14 applied because the claims were not based on the statutes, but on the language of the resolutions authorizing STIF in 1991, 1993, and 2003. The court stated that, without the language of the statutes enacted by RC 5709.73, which authorizes townships to construct public improvements that benefit property through tax-increment financing (TIF) programs, the board’s claim would not exist. Therefore, the court held that the 10-year statute of limitations did not apply.
The board also argued that a new cause of action occurred each time an additional expenditure from the TIF was made under the continuous-violation doctrine. The court stated that “whether the plaintiff had notice of the alleged tortious activity is relevant in determining when the cause of action accrued.” Further, the court noted that the alleged tortious activity was the 2003 amendment of STIF and that the continued collection of PILOT payments and expenditures flowed from that activity. Additionally, the court stated that the record showed that the board had notice about the expansion and continuation of STIF in 2004 and had sufficient information to be put on notice as a representative from the Loveland School District was present at the township’s annual meeting of the Tax Increment Review Council. As a result, the court affirmed the trial court’s judgment in favor of the township and dismissed the board’s appeal.
Tennessee district court dismisses teachers’ claims of discrimination, finding that the claims were time-barred.
Williams v. Shelby Cty. School Sys., W.D.Tenn. No. 2:17-cv-02284-TLP-cgc, 2018 U.S. Dist. LEXIS 75476 (May 2, 2018).
https://scholar.google.com/scholar_case?case=9457401541495877873&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Katoria Williams and Demetri Faulkner were teachers in the Shelby County School System. Williams was employed by the district from 2008 through December 2013. Faulkner was employed by the district from 2002 through June 2014. Williams and Faulkner alleged that, during these years, their supervisor, Marjorie Douglas, mistreated them at work because of their race. Douglas argued that the claims against her should have been dismissed because the statute of limitations for the claims had expired.
In an effort to save their claims, Williams and Faulkner invoked the continuing violations doctrine, arguing that their “tenured losses,” caused by Douglas’ discrimination and the district’s ongoing hostile work environment, continued up to the filing of their complaint. The court rejected this argument, finding that neither Williams nor Faulkner had alleged any discriminatory acts after 2014. The court found that, because there was no evidence that Douglas committed any acts against either Williams or Faulkner within the applicable one-year statute of limitations, their constitutional claims against Douglas for denial of due process, equal protection and retaliation were time-barred and dismissed.
The court also rejected the teachers’ claims against Douglas for intentional or negligent infliction of emotional distress. The court found that the teachers knew or should have been aware of any emotional distress that Douglas’ alleged conduct would have caused as of their terminations from their positions in 2013 and 2014. Because the teachers did not allege that Douglas committed any acts against them within one year of filing the complaint, the court held that the teachers’ emotional distress claims against Douglas were time-barred.
Because the court found that all of the teachers’ claims against Douglas were untimely or failed to state a claim, it granted Douglas’ motion to dismiss.
Michigan court finds teachers have a property interest in their effectiveness rating.
Southfield Edn. Assn. v. Bd. of Edn. of the Southfield Pub. Schools, E.D.Mich. No. 17-11259, 2018 U.S. Dist. LEXIS 105821 (June 11, 2018).
In 2011, the State of Michigan amended its Revised School Code, including one section addressing hiring and retaining “effective teachers.” The teachers’ union claimed that the revised statute was unconstitutional because teachers have a property right in their assigned effectiveness ratings and the employing school district failed to base staffing decisions on those ratings. Because some affected teachers lost their jobs through layoffs as a result of these staffing decisions, the union claimed those teachers were deprived of due process.
The school district argued that teachers did not have a property right to continued employment, existing remedies were adequate, and the statute was constitutional. Additionally, the union filed several previous lawsuits (Southfield I, II, and III) on the same issue, all of which were resolved in favor of the school district.
In this case, the court focused its attention on the issue of whether once a teacher earned an effectiveness rating, it became a protectable property interest, and whether once the district disregarded that rating, the teachers were deprived of due process. On this point, the court readily agreed with the union, likening the effectiveness rating to a veteran’s preference status and a rank on a promotion eligibility list. As such, the court found the teachers to be entitled to due process. However, the union’s challenge to the constitutionality of the Michigan law at issue was found to be barred by claim preclusion. New claims by the union, as a result of changed circumstances that had occurred in the district during the pendency of these actions, were allowed to continue.
Appeals court finds that employee waived her right to judicial review of an arbitrator’s decision because she failed to affirmatively request the review within the statutory timeframe.
Cox v. Dayton Pub. Schools Bd. of Edn., 2018-Ohio-2656.
https://www.supremecourt.ohio.gov/rod/docs/pdf/2/2018/2018-Ohio-2656.pdf
On Oct.10, 2012, Georgia Cox, an intervention specialist at Meadowdale High School in the Dayton City School District, hit a student using a wheelchair in the upper chest. Criminal charges were initiated against Cox on Oct. 16, 2012, and she later was convicted of felony assault.
After a hearing on the incident, the board of education served Cox with a notice of intent to terminate her contract. The matter was submitted to arbitration in accordance with the labor agreement between the board and the Dayton Education Association (DEA). The arbitrator issued a decision finding the district had cause for terminating Cox. Cox filed a motion in the Montgomery County Common Pleas Court to vacate, modify or correct the arbitration decision. The board responded with a motion to dismiss, arguing that Cox’s motion was not filed within the three-month period required by RC 2711.13. After the trial court granted the motion, Cox appealed, and the court of appeals reversed the trial court and remanded the matter. (SLS 2015-2.)
The board appealed and asked the Supreme Court of Ohio to find that RC 2711.13 required that the notice of a motion challenging an arbitration award in a court be received by the adverse party or its attorney within the three-month period. Cox urged the court not to require actual receipt within that period. The court found for Cox. (SLS 2016-4.)
Following the Supreme Court of Ohio’s decision, the trial court considered the question raised by the appeals court when it remanded the case: whether, when DEA submitted her appeals to arbitration, Cox had clearly and unmistakably waived her right to judicial review of the arbitrator’s decision. The trial court concluded that Cox had not done so, vacated the arbitrator’s award that Cox’s contract was terminated, and remanded the matter to the board “for proceedings consistent with the law.”
Upon appeal by the board, the appeals court found that the trial court erred in vacating the termination of Cox’s contract. It noted that the contract between the board and DEA provided that any employee who has received a notice of intention to terminate his or her contract has the right, within 10 days of receipt of the notice, to “either proceed with a case under Section 3319.16, Revised Code, or to have [her] case decided by an arbitrator.” Consequently, it held that Cox’s waiver of her right to judicial review of the arbitrator’s decision was clear and unmistakable because she failed to affirmatively request a RC 3319.16 proceeding within 10 days after receiving notice from the board. The court reversed and vacated the trial court’s decision, reinstating the arbitrator’s award.
Kentucky district court finds enough alleged facts to make a reasonable inference that a school district was liable when a teacher searched the content of student cell phones.
Bussell v. Elizabethtown Indep. School Dist., W.D.Ky. No. 3:17-CV-00605-GNS, 2018 U.S. Dist. LEXIS 70813 (Apr. 27, 2018).
Kristen Bussell and Kali Centeno brought a civil rights action for violation of their Fourth Amendment rights and a Title IX claim for discrimination and harassment against the Elizabethtown Independent School District on behalf of themselves and a class of others similarly situated. Bussell and Centeno alleged that the district and Stephen Goodlett, a teacher at Elizabethtown High School (EHS), violated their privacy rights when they attended the school between 2010 and 2012. They claim that their rights were violated under EHS’s policy, allowing district school officials, including Goodlett, to confiscate and retain cell phones. Bussell and Centeno asserted that Goodlett found private nude and semi-nude photographs on their phones, which he later uploaded to the internet. They argued that the district was liable since Goodlett’s actions were taken while he was a teacher at EHS who enforced the district’s policy, and also that the district failed to develop or enforce adequate safeguards to prevent the deprivation of a student’s federally protected rights.
The board argued that it was entitled to immunity and did not have a legal duty to develop a policy to prevent Goodlett’s unforeseeable criminal conduct. The board also argued that the EHS Cell Phone Policy did not violate the Fourth Amendment since it only provided for confiscation of student cell phones, not the subsequent search of cell phone content. The board’s Search and Seizure Policy stated that no student’s belongings or personal effects shall be searched by authorized school personnel unless “there are reasonable grounds to believe the search will reveal evidence that the pupil [student] has violated or is violating” a school rule or the law.
The court found that reading both policies together could have led a teacher or school administrator to believe that he or she was permitted to search a student’s cell phone if he or she had “reasonable grounds” under the Search and Seizure Policy, including EHS’s policy and prohibition on cell phone use during school hours. The court also stated that the illegality of Goodlett’s actions does not alter the question as to whether the board’s policies allowed him to take such actions.
Bussell and Centeno also claimed that the board’s conduct constituted discrimination and harassment under Title IX and asserted that they would not have been subjected to the discrimination and harassment if they were not females, and that an appropriate person at the district had actual knowledge of the conduct and acted with indifference to the known acts of discrimination and harassment.
The board argued that Bussell and Centeno did not point to any instance where any district employee, other than Goodlett, had knowledge of the alleged discrimination and harassment and the bad actor himself cannot qualify as “an appropriate person for the purposes of establishing a Title IX claim.”
The court, however, stated that the board ignored Bussell and Centeno’s contention that Goodlett’s actions of conducting searches of students’ cell phones were known to other administrators and personnel at EHS. As a result, the court held that Bussell and Centeno alleged enough facts to draw reasonable inferences that the district was liable for the misconduct alleged and denied the board’s motion to dismiss the 1983 and Title IX claims.
TORT LIABILITY – SOVEREIGN IMMUNITY
Appellate court lacks jurisdiction over a plea to amend original defense to include political subdivision immunity.
Murgu v. Lakewood City School Dist. Bd. of Edn., 2018-Ohio-1636.
http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2018/2018-Ohio-1636.pdf
Viorel and Marianne Murgu filed a complaint against the school district on Dec. 21, 2015, after their daughter fell through an auditorium stage floor at Lakewood High School. The district answered the complaint, denying the charges, but did not raise the defense of political subdivision immunity. The district then filed for summary judgment. Afterward, the district sought permission to supplement its motion, ultimately seeking to file a motion for summary judgment on the grounds of political subdivision immunity. The trial court denied the district’s motion for summary judgment on the facts and on the issue of political subdivision immunity as being “out of rule.”
On appeal, the district argued that the trial court abused its discretion in disallowing it from presenting its political subdivision immunity in a summary judgment proceeding. The court noted that statutory immunity is an affirmative defense and, if it is not raised in a timely fashion, it is waived. Here, the trial court specifically stated in its journal entry that “affirmative defenses will be addressed at trial based on evidence presented.”
The court noted that the record shows the district did not assert an affirmative defense in its original answer, but the trial court did not deny the district’s ability to assert the affirmative defense. It ruled that the motion was out of rule and an adjudication on the affirmative defense would be made at later date. Then, depending on that decision, Lakewood could appeal the trial court’s decision.