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In this issue: Americans with Disabilities Act • Breach of contract • Bullying • Educator licensure • Election law • Equal protection • First Amendment — Establishment Clause • First Amendment — Free speech • IDEA • Public records • Section 1983 • Sovereign immunity • Student privacy rights • Tax — Valuation/real property • Taxation • Teacher termination • Territory transfer • Theft • Voting Rights Act
AMERICANS WITH DISABILITIES ACT
United States District Court for the Southern District of Ohio denies school board’s motion for summary judgment against an Americans with Disabilities Act claim.
Bennett v. Bd. of Edn. Washington County Joint Voc. Sch. Dist. (S.D.Ohio Oct. 7, 2011), Case No. C2-08-CV-0663, unreported
http://law.justia.com/cases/federal/districtcourts/ohio/ohsdce/2:2008cv00663/124040/109
Constance Bennett was employed as an instructor and medical programs director/supervisor at the Washington County Career Center. In February 2008, Bennett helped a student who had a learning disability enroll in the career center’s surgical technologist program, even though the program had already begun. In March 2008, Bennett helped the same student gain reinstatement into the program after the student was dismissed by the Director of Adult Education, Dewayne Poling. During the same time period, Bennett learned that her contract would not be renewed after it expired, purportedly due to financial considerations. At least some of Bennett’s responsibilities were reassigned after Bennett’s nonrenewal, but the title of the position was changed.
Bennett filed her complaint against the Washington County Joint Vocational School District Board of Education in 2008, asserting claims of retaliatory nonrenewal and breach of contract. Bennett alleged that in retaliation for opposing discrimination against a disabled student, the board did not renew her employment contract in violation of the ADA. The board moved for summary judgment on the claim for retaliatory nonrenewal, arguing Bennett did not engage in a protected activity as required in an ADA action. The board also argued in the alternative that Bennett could not show a causal connection between the protected activity and the adverse action and that the board had demonstrated a legitimate, non-discriminatory reason for the adverse action that Bennett had not rebutted. The United States District Court for the Southern District of Ohio held that the board failed to show that Bennett’s actions did not fall under the protections of the ADA. The board offered a legitimate, non-discriminatory reason for Bennett’s termination, but Bennett did show that genuine disputes of material fact remained as to whether the board’s non-discriminatory rationale was pretextual. In addition, the court held that the adverse action occurred very close in time after the protected activity, raising the inference that the protected activity was the likely reason for the adverse action, satisfying Bennett’s burden of demonstrating causation. Finally, the court held that there were facts on the record from which a reasonable juror could have concluded that the board’s financial justification was merely a pretext for its retaliation against Bennett for her advocacy on the student’s behalf. Therefore, the court denied the board’s motion for summary judgment.
Pike County appeals court held that school board was not a party to a construction contract formed between contractor and the state, precluding contractor’s breach of contract claim.
Ingle-Barr, Inc. v. Scioto Valley Local School Dist. Bd., 193 Ohio App.3d 628, 2011-Ohio-2353
www.sconet.state.oh.us/rod/docs/pdf/4/2011/2011-ohio-2353.pdf
In 2002, Ingle-Barr, Inc. entered into a construction contract with the state of Ohio, by and through Scioto Valley Local School District Board, to renovate and build an addition to Jasper Elementary School. In 2007, Ingle-Barr brought an action for breach of contract and unjust enrichment against the board. The board then filed a motion to dismiss and argued that it was not a party to the contract and that quasi-contract could not be used against a governmental entity. The Pike County Common Pleas Court granted summary judgment in favor of the board. Ingle-Barr appealed, arguing that the trial court erred when it held that the board was not a party to the contract and when it held that Ingle-Barr could not recover from the board based on quasi-contract.
In considering Ingle-Barr’s appeal, the appellate court emphasized the fact that the contract stated it was between Ingle-Barr and the state of Ohio. The board’s name did appear on the contract, but only in the capacity of an agent binding the state of Ohio. The court further held that Ohio law does not recognize an equitable claim for unjust enrichment when an express contract covers the exact same subject matter. Accordingly, the court held that the board was not a party to the contract and that quasi-contract could not be used because there was an express contract between Ingle-Barr and the state of Ohio covering the exact same subject matter. Therefore, the court affirmed the trial court’s judgment.
Federal district court rules Pennsylvania school district not liable for peer bullying.
Kirby v. Loyalsock Twp. Sch. Dist. M.D.Pa. No. 4:09-cv-01695, (Sept. 6, 2011), unreported
http://scholar.google.com/scholar_case?case=17040642194526667136&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Molly Kirby attended high school in the Loyalsock Township School District. After graduating in 2009, Kirby filed suit in federal district court against the school district and school officials. Kirby alleged that the school district had violated her constitutional rights to freedom of association, substantive and procedural due process, and equal protection because the school officials had failed to discipline the students who were bullying her. Specifically, Kirby alleged that several of her former teammates on the basketball team had shunned and harassed her, and that the district had not done enough to stop the bullying even though school officials had an anti-bullying policy, had offered to provide Kirby with a “female companion” to keep her separated from the alleged bullies, had offered mediation services, and had given Kirby the opportunity to discuss the matter in the presence of a state trooper. Kirby alleged that the district’s decision not to punish the bullies caused her to quit the basketball team, not attend senior night, not attend the senior class trip, and not attend graduation.
Addressing the free association claim, the court agreed with the district that Kirby knowingly and of her own volition chose not to participate in school functions and held that Kirby had failed to prove that the relationships at issue were of the sort that are afforded special constitutional protection. The court dismissed the Equal Protection claim, holding that Kirby had failed to establish that she was treated differently than similarly situated students. The court also dismissed the procedural due process claim because Kirby had failed to establish that the district had deprived her of any liberty or property interest in participating in extracurricular activities. Finally, the court held that because there is no fundamental right to participate in extracurricular school activities, Kirby’s substantive due process claim also was dismissed.
Ohio appeals court affirms trial court and State Board’s decision to permanently revoke principal’s license.
Williams v. Ohio Dept. of Edn., 2011-Ohio-6615
www.sconet.state.oh.us/rod/docs/pdf/4/2011/2011-ohio-6615.pdf
Mark Williams began his employment as an elementary school teacher with Wellston City School District in 1992. In 2002, he was made assistant principal of Bundy Elementary in the school district. After serving in that position for one year, Williams took the principal’s position. Williams remained as principal until August 2007, when he resigned under threat of termination and/or nonrenewal following an investigation by the Wellston City School Board that revealed inappropriate email messages sent from Williams’ computer, inappropriate materials on his school computer, inappropriate access of websites on his school computer, misuse of school time, and other unacceptable behaviors.
Williams received a Notice Letter from the Ohio State Board of Education advising him of the board’s intention to limit, suspend, or revoke his five-year professional elementary principal license and his permanent elementary school teaching license and informing him of his right to a hearing. After a seven-day hearing in February 2009, the administrative hearing officer recommended that Williams’ license and teaching certificate be revoked. It was further recommended that Williams be permanently ineligible to apply for any license issued by the State Board and that he no longer be permitted to hold any position in any school district in the state that requires a license issued by the State Board. The board adopted the recommendations of the hearing officer.
Williams appealed the board’s decision to the Jackson County Court of Common Pleas, which affirmed the decision. Williams appealed, arguing that the trial court erred in determining that the evidence relied upon by the administrative hearing officer was reliable, probative, and substantial, and that the trial court’s decision is contrary to the manifest weight of the evidence.
The Jackson County Court of Appeals rejected all three of Williams’ arguments and affirmed the trial court’s decision. The court held that the trial court did not abuse its discretion because its decision was supported by reliable, probative, and substantial evidence. The court refused to weigh the evidence, as its role is limited to determining whether the trial court abused its discretion. The court further refused to consider Williams’ new arguments because a party cannot assert new legal theories for the first time on appeal. The court found that there was no abuse of discretion by the trial court.
Lucas County Court of Appeals affirms Ohio State Board of Education’s decision to hold a teacher permanently ineligible to apply for license.
Haynam v. Ohio State Bd. of Edn., 2011-Ohio-6499
http://www.leagle.com/xmlResult.aspx?xmldoc=In%20OHCO%2020111216423.xml&docbase=CSLWAR3-2007-CURR
Benjamin Haynam began classes at Kent State University (KSU) in 2003 but withdrew in 2006 with only 40 credit hours and a 1.91 grade point average. In 2008, Haynam led his family and friends to believe he was graduating with a Bachelor’s Degree in Integrated Science Education.
In late 2008, Haynam obtained a substitute teaching position with Sylvania City Schools, due in part to a resume detailing sham credentials and falsely claiming he had taught for five months at Kent High School. Although Sylvania initially requested copies of Haynam’s academic degree and state teaching license, he ignored the request and the school’s personnel official did not pursue it.
In June 2009, Haynam interviewed for a full-time position and was selected. It was during an examination of his personnel file that a Sylvania official noticed the absence of a KSU degree, college transcripts and the teaching license. When he was asked to provide these items, Haynam created a bogus license from his computer and gave it to Sylvania. Sylvania officials became suspicious and discovered that the license was a forgery. In November 2009, Haynam pled guilty to one count each of forgery and tampering with records.
In May 2010, the Ohio State Board of Education sent a letter to Haynam indicating its intent to decide whether to deny Haynam’s application for a two-year provisional teaching license and whether to limit, suspend, or revoke his three-year pupil-activity supervisor permit that had been issued in 2008. Haynam requested and was given a hearing before a state hearing officer in August 2010. The board adopted the substance of the hearing officer’s recommendation to permanently deny Haynam’s application for a provisional license, permanently revoke his supervisory permit, and declare him permanently ineligible to apply for a permit or licensure in Ohio in the future. Haynam appealed to the Lucas County Court of Common Pleas, which affirmed the board’s decision.
On appeal, Haynam first argued that the State Board lacks authority under the Revised Code to declare an individual subject to discretionary discipline permanently ineligible to apply for a license. The Sixth District disagreed, finding that R.C. 3319.31(G) unambiguously delegates broad rule-making authority to the State Board over sanctions and that the Supreme Court has generally construed the grant of rule-making authority to local boards of education quite broadly.
Haynam then argued that the board’s decision was ad hoc, arbitrary, declared without reference to any standard, and unreasonable because no criteria exist for determining whether a person’s behavior should result in a sanction that is permanent or temporary. The court rejected this argument, holding that public policy requires that the board be afforded wide latitude in evaluating who is fit to enter a profession in which educators are role models for students.
Finally, Haynam argued that the board lacks authority under the Ohio Constitution to limit the exercise of discretionary authority by future state boards of education. The court rejected this argument because such a limit applies only to certain legislative functions, and not in regulatory powers delegated by statute. Because all of Haynam’s arguments failed, the court affirmed the judgment of the common pleas court.
Supreme Court of Ohio granted writ of mandamus to compel a board of elections to place candidate’s name on an election ballot.
State ex rel. Coble v. Lucas Cty. Bd. of Elections, 130 Ohio St.3d 132, 2011-Ohio-4550
www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4550.pdf
On May 23, 2011, John Coble filed his nominating petition to run for Toledo Municipal Court judge in the November 8, 2011 election. Upon notification that the petition contained insufficient signatures for certification of his candidacy, Coble withdrew his candidacy on June 1, 2011. On June 13, 2011, Coble filed a new nominating petition for the same office and the same election, and a board of elections employee told Coble that the petition was acceptable.
On July 22, 2011, Secretary of State Husted issued Directive 2011-24, in which he determined that “a person who withdraws his or her candidacy for office cannot subsequently file a new declaration of candidacy and petition, or nominating petition, or declaration of intent to be a write-in candidate for the same office at the same election.” Subsequently, the board of elections rejected Coble’s nominating petition. Coble then filed an expedited election action for a writ of mandamus to compel the board of elections to certify him as a candidate.
The Supreme Court of Ohio held that the board of elections abused its discretion, disregarded applicable law by rejecting Coble’s candidacy, and consequently granted Coble’s writ. Specifically, the Court held that the unambiguous language of RC 3513.052(G) permitted Coble to timely withdraw his first petition and to file his second petition. The Court held that allowing Coble’s name on the ballot is consistent with the Court’s duty to liberally construe words limiting the right of a person to hold office in favor of those seeking to hold office so that the public may have the benefit of choice from all qualified persons.
Eighth Circuit holds Iowa district did not violate noncustodial parent’s constitutional rights by denying access to children during school day and records.
Schmidt v. Des Moines Public Schools (C.A.8, 2011), 655 F.3d 811
http://caselaw.findlaw.com/us-8th-circuit/1580031.html
When Lisa and Michael Schmidt divorced, the state court gave primary physical custody of their three children to Michael, subject to Lisa’s visitation rights. All three children were students of Des Moines Public Schools, and on several occasions Lisa attempted to visit the children at school but was denied. On one occasion, Lisa was denied information when she asked why one child was absent from school. After the school informed Lisa of its policy to require Michael’s consent to any visitation sought by Lisa during school hours, Lisa filed suit in federal district court against the school district. Lisa alleged that the school’s refusal to allow her access to her children during school hours violated her substantive due process, procedural due process, and equal protection rights. The district court subsequently granted the school district summary judgment.
On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s decision. The court rejected Lisa’s assertion that school officials violated her fundamental liberty interest in the care, custody, and management of her children when they denied her access to the children during school hours, because it is unclear whether such a liberty interest entitles a parent to unfettered access to the children during a school day. In addition, the court held that Lisa’s liberty interest was substantially reduced by the divorce decree, which limited her visitation with the children to a specific schedule and allowed her to exercise visitation outside that schedule only with her ex-husband’s assent. The court also rejected Lisa’s contention that her substantive due process rights were violated because the school officials misconstrued the divorce decree, the restrictions of which did not apply to visitation while the children were at school. School officials construed the court orders in a reasonable manner as prohibiting her from interrupting the children’s school day without her ex-husband’s permission. The remedies available in state court to modify the divorce decree were adequate to satisfy procedural due process. Finally, Lisa, as a noncustodial parent, was not in a similar position to that of a custodial parent and, therefore, the court rejected her equal protection claim.
FIRST AMENDMENT — ESTABLISHMENT CLAUSE
Ninth Circuit Court rules school district did not violate teacher’s constitutional rights by ordering removal of classroom banners with religious references.
Johnson v. Poway Unified Sch. Dist. (C.A.9, 2011), 658 F.3d 954
www.ca9.uscourts.gov/datastore/opinions/2011/09/13/10-55445.pdf
Bradley Johnson, a teacher in the Poway Unified School District of San Diego County, California, had for twenty years displayed two banners in his classroom, one with the phrases “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee,” and the other with the phrase “All Men Are Created Equal, They Are Endowed By Their CREATOR.” However, in January 2007, the school principal ordered Johnson to remove the banners after an inquiry from a fellow teacher and a decision by the school board to direct their removal. Johnson sued the school district, asserting federal constitutional claims and seeking a court order requiring the school district to allow him to re-hang the banners.
The district court granted Johnson’s motion for summary judgment, concluding that the school district had created a limited public forum for teacher speech in its classrooms and had impermissibly limited Johnson’s speech based upon his viewpoint.
On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s decision and remanded the case with instructions to the district court to enter summary judgment in favor of the school district on all claims. The court found that the district court had erred when it applied forum analysis to Johnson’s free speech claim, and that it should have instead applied the Pickering employee-speech analysis to find that when Johnson displayed the banners, he spoke as an employee rather than a private citizen. The court then applied the Lemon test to the principal’s order to remove the banners and found that there was no violation of the Establishment Clause because governmental actions taken to avoid potential Establishment Clause violations have a valid secular purpose. Finally, the court disposed of Johnson’s equal protection claim, finding that because the speech at issue was government speech and not his own, Johnson’s equal protection rights were not implicated.
FIRST AMENDEMENT — ESTABLISHMENT CLAUSE
Seventh Circuit holds Wisconsin district did not violate Establishment Clause by conducting graduation ceremonies at local church.
Doe v. Elmbrook Sch. Dist. (C.A.7, 2011), Case No. 10-2922, unreported
www.courthousenews.com/2011/11/21/originalopinion.pdf
In April 2009, Elmbrook School District in Brookfield, Wisconsin, announced that it intended to hold that year’s graduation ceremonies for two of the school district’s high schools at Elmbrook Church. A group of parents, students, and taxpayers filed suit in a Wisconsin federal district court against the school district seeking to enjoin it from holding the ceremonies at the church. The plaintiffs alleged that the school district’s actions violated the Establishment Clause.
The district court granted the school district’s motion for summary judgment and concluded that conducting the ceremonies at the church did not violate the First Amendment’s Establishment Clause, as the practice was not coercive, did not have the primary effect of endorsing religion, and did not lead to excessive entanglement with religion.
On appeal, the U.S. Court of Appeals for the Seventh Circuit affirmed. The court found that the school district’s actions were not coercive because graduates were not forced to participate in any religious exercise, subscribe to a particular religion, or even to religion in general. The court rejected the plaintiff’s contention that the court should determine whether all graduation ceremonies held in places of worship necessarily convey a message of endorsement because the underlying principles of the First Amendment’s religion clauses require the challenged government practice to be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion. The court found no endorsement in this case because there was no evidence that the school district had in any way associated itself with the religious symbols or with the beliefs expressed by the church. Finally, the court found that there was no evidence that the use of the church excessively entangled the state with religion because the church did not attempt to control or influence the setting or the content of the ceremony.
Federal district court rules students stated valid claim that Nebraska district’s policy prohibiting gang-related apparel violated free speech rights.
Kuhr v. Millard Pub. Sch. Dist. D.Neb. No. 8:09CV363, 2012 U.S. Dist. LEXIS 56189, unreported
www.splc.org/pdf/kuhr_order118.pdf
Dan Kuhr and his two siblings were students in the Millard Public School District in Nebraska. After Dan’s friend, Julius Robinson, was murdered by an alleged gang member, Dan designed a T-shirt and wristband as a memorial to his friend. Dan and his two siblings began wearing the shirts and wristbands to school, but school officials deemed that the items were gang-related apparel banned under school policy. All three students were given suspensions for wearing and refusing to cover up or remove the offending apparel. They subsequently filed suit against the school district alleging that the school district’s policy violated their free speech rights.
The United States District Court for the District of Nebraska denied the school district’s motion to dismiss. The court found that the speech/expression at issue here was private student speech governed by Tinker’s substantial disruption standard, which allows school officials to prohibit student speech if the officials can reasonably forecast that it will substantially disrupt school operations. The court also found that school district officials had no such information when they prohibited the students from wearing the apparel. The court pointed to the fact that one of the students had worn his shirt several days without incident as supporting a finding that no disruption was likely to or did result.
En banc Fifth Circuit rules elementary school students have First Amendment free speech rights, but principals entitled to qualified immunity for banning distribution of religious materials.
Morgan v. Swanson (C.A.5, 2011), 659 F.3d 359, en banc
https://www.judicialview.com/Court-Cases/Education/Morgan-v-Swanson/20/41244
Lynn Swanson and Jackie Bomchill are the principals of Thomas Elementary School and Rasor Elementary School, respectively, in Plano Independent School District. Both principals became involved in disputes with parents over their children handing out “goodie bags” during winter break or birthday parties that contained items with religious messages. The principals then enforced a ban on distributing any items containing a religious message. The parents filed suit in federal district court against Swanson and Bomchill, alleging that banning the distribution of any items with a religious message constituted impermissible viewpoint discrimination in violation of their children’s First Amendment right to freedom of speech.
The principals filed a motion to dismiss the suit based on qualified immunity, arguing that the First Amendment does not prohibit viewpoint discrimination against religious speech in elementary schools arguing the parents failed to allege any conduct that constituted a violation of the children’s clearly established constitutional rights. The district court denied the motion, finding that a child’s right to freedom of expression is not forfeited simply because of her age and that this right is clearly established.
The U.S. Court of Appeals for the Fifth Circuit reversed the lower court’s decision denying the two principals qualified immunity. The court found the standard to be whether existing precedent provides fair warning, and held that because there was no specific and factually analogous precedent providing guidance in this case, the principals were entitled to qualified immunity. However, a separate majority opinion held that elementary school students do, in fact, enjoy First Amendment free speech rights and that the principals had engaged in impermissible viewpoint discrimination in violation of the students’ rights when they banned the materials based on their religious viewpoint.
Florida federal district court rules school district’s prohibition on students wearing T-shirts denigrating Islam does not violate students’ constitutional rights.
Sapp v. School Bd. of Alachua Cnty. N.D.Fla. No. 09-242, (Sept. 30, 2011), 2011 U.S. Dist. LEXIS 124943, unreported
Seven students attending Alachua County public schools wore T-shirts bearing the caption “Islam is of the Devil.” On each occasion the shirts were worn, the students were sent home for violating Alachua County School Board’s dress code, which required students’ clothing “to dress in a way that does not disrupt or distract from the educational process…and is not offensive to others or inappropriate at school or school-sponsored events….” The dress code was also enforced at a football game when a group of parents and students wore the T-shirts. The students filed suit against the school board, alleging violation of their free speech rights.
The United States District Court for the Northern District of Florida granted the school board’s motion for summary judgment and denied the students’ motion for summary judgment. The court pointed out that students’ First Amendment rights are not as broad as those of adults in public forums. Rather, those rights should be determined in light of the special characteristics of the school environment. The court concluded that student speech may be restricted when there is a reasonable forecast that the speech will cause appreciable disruption to school discipline, and that speech also may be restricted where it includes the use of vulgar and offensive terms that are highly offensive or threatening to others. The court held that the school district was on solid constitutional footing when it prohibited the wearing of the T-shirts, as there were a number of documented incidents where the shirts had caused actual disruption and the message on the T-shirts was offensive and demeaning to Muslim students.
Sixth Circuit affirms dismissal of parents’ IDEA action against school district because parents had failed to exhaust their administrative remedies.
Doe v. Dublin City Sch. Dist. (C.A.6, 2011), 453 Fed.Appx. 606
www.ca6.uscourts.gov/opinions.pdf/11a0738n-06.pdf
Anthony Doe is a student in the Dublin City School District. Anthony’s parents requested that the district develop an individualized education program (IEP) pursuant to IDEA and conduct a multi-factored evaluation of Anthony. After the principal refused to conduct the evaluation, Anthony’s parents had a private evaluation performed, which resulted in the diagnoses of Asperger’s Disorder, Attention Deficit Hyper Activity Disorder, Anxiety Disorder, and Major Depressive Disorder.
Anthony’s parents again asked the district to conduct the evaluation and to develop an IEP. Without either parent in attendance, the district held a meeting and concluded that Anthony did not have a disability. Upon learning of the district’s decision, the Doe’s informed the principal that they would appeal the district’s refusal to evaluate Anthony. When the district finally provided the Does with a behavior intervention plan, the Does claimed that the plan was not adequate to address Anthony’s disability. The district once again refused to acknowledge that Anthony had a disability and again denied the Doe’s request for an IEP.
The Does brought suit in federal district court against the district asserting violations of the Individuals with Disabilities Act, the Rehabilitation Act, and the Americans with Disabilities Act. The court entered an order that required the district to conduct the multi-factored examination and the district began accommodating Anthony’s needs. The district then moved to dismiss the suit based on the Doe’s failure to exhaust administrative remedies, and the motion was granted by the district court.
On appeal, the Sixth Circuit Court of Appeals affirmed. The court held that a party generally must exhaust its administrative remedies before bringing a lawsuit under IDEA, but an exception to the requirement exists if it would be futile or inadequate to protect the plaintiff’s rights. The court held that the Does failed to meet their burden of demonstrating that compliance with the exhaustion requirement would be futile or inadequate because the Does did not request a due process hearing before filing their lawsuit.
Supreme Court of Ohio rules school district not required to provide access to attorney-billing statements and communications with the school district’s insurance company when the records are covered by the attorney-client privilege.
State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009
www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-6009.pdf
In March 2010, Angela Dawson sent an email request to the Bloom-Carroll Local School District seeking copies of invoices received from all law firms providing services relating to any matters pertaining to her or her children. The district provided Dawson with summaries of the invoices, but did not provide the requested itemized invoices because the records contained what the district considered to be confidential information covered by the attorney-client privilege. In April 2010, Dawson advised the district that she still wanted copies of the itemized billing statements for each invoice regarding legal fees spent on matters relating to her and her children, and in December 2010, she hand-delivered written requests for the itemized invoices and all communications from the district’s insurance carrier identifying the district’s legal representative. On December 22, 2010, the district informed Dawson that it had one document dated February 9, 2010, but denied Dawson’s request because the document was authored by the insurance company and sent to the district, the district’s local representative and the attorney appointed by the insurer.
On January 25, 2011, Dawson filed an action for a writ of mandamus to compel the district to provide her with access to the requested records. The court granted the alternative writ and ordered the district to submit copies of the records for in-camera review. Dawson submitted an affidavit stating that the district voluntarily disclosed the February 9, 2010 document to the district’s board members and openly discussed the document in a public board meeting. Dawson claimed that, by disclosing the document to the public, the district had waived the privilege. The district filed an affidavit by the district’s treasurer stating that the February 9, 2010 letter was mentioned in a public meeting, but that the specific contents of the letter were not discussed.
The court held that the district properly responded to Dawson’s requests for the itemized invoices by providing her with summaries of the invoices and that the records were, in fact, covered by the attorney-client privilege because they contained detailed descriptions of work performed by the district’s attorneys, statements concerning their communications to each other and insurance counsel, and the issues they researched. The court also held that the February 9, 2010 letter from the district’s insurance company to the district identifying the district’s attorney also was protected by the attorney-client privilege because it evaluated Dawson’s claim and instructed the district to cooperate with the attorney selected by the insurance company to represent the district. Finally, the court ruled that Dawson’s evidence of privilege waiver had been successfully refuted by the district’s evidence, which established that it never disclosed the contents of the letter at a public meeting.
Sixth Circuit affirms the denial of school officials’ motion to dismiss on procedural due process and equal protection claims, but reverses the denial of the same motion for officials involved in the disciplinary hearing appeals process.
Heyne v. Metro. Nashville Public Schools (C.A.6, 2011), 655 F.3d, 556
www.ca6.uscourts.gov/opinions.pdf/11a0239p-06.pdf
In September 2008, a senior at Hillsboro High School was involved in a confrontation with an African-American classmate. The senior was suspended for 10 days by the school principal. The senior appealed the decision, but the appeal was denied by Metropolitan Nashville Public School officials. On September 4, 2009, Heyne filed a complaint alleging violations of procedural due process and equal protection against the principal and other school officials, the district and the Metropolitan Government of Nashville. Specifically, the student alleged that the defendants punished him more harshly than other students because of his race and then showed bias throughout the disciplinary process. He pointed to the fact that the principal had instructed the staff at Hillsboro to be more lenient in enforcing the student Code of Conduct against African-American students and that the African-American student involved in the confrontation was not disciplined. After their motions to dismiss were denied, the defendants appealed, asserting that they were entitled to qualified immunity.
The Sixth Circuit Court of Appeals affirmed the district court’s denial of the motions to dismiss filed by the school officials. There were factual allegations that plausibly suggested that the principal’s ability to impartially determine the appropriate discipline in relation to the 2008 incident had been manifestly compromised by virtue of his expressed concern about race-related student discipline statistics and his instructions to staff concerning discipline of African-American students. Likewise, the principal was directed to enhance the discipline imposed on the student even though they knew he posed no danger and was not disrupting the academic process. However, the court reversed the district court’s denial of two other school officials’ motions to dismiss based on qualified immunity, finding the student had no procedural due process right to appeal his suspension and there were no factual allegations that either official considered the student’s race during the disciplinary hearing appeal.
Supreme Court of Ohio ruled physician who was volunteer clinical faculty member for state medical college was not entitled to immunity as state employee.
Engel v. Univ. of Toledo College of Medicine, 130 Ohio St.3d 263, 2011-Ohio-3375.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-3375.pdf
Dr. Marek Skoskiewicz practices general surgery at Henry County Hospital in Napoleon, Ohio. Henry County Hospital is a private organization and is not affiliated with any state-sponsored institution. Dr. Skoskiewicz has also been a volunteer clinical faculty member of the University of Toledo College of Medicine since 1995.
In 2005, Dr. Skoskiewicz performed two separate vasectomy surgeries on Larry Engel Jr. at Henry County Hospital. Allegedly due to negligence during the first and second surgeries, a third surgery, to remove Engel’s necrotic right testicle, was performed. In May 2006, Engel filed a medical malpractice suit against Dr. Skoskiewicz in the Henry County Court of Common Pleas. Dr. Skoskiewicz asserted that he was entitled to personal immunity pursuant to R.C. 9.86 because, at the time of the surgeries, he was acting in his capacity as a volunteer clinical instructor of the college of medicine and was, therefore, an officer or employee of the state. Accordingly, Engel filed an action against the college of medicine in the court of claims, in which he reasserted his malpractice allegations and sought a determination whether Dr. Skoskiewicz was entitled to personal immunity as a state employee.
The court of claims concluded that Dr. Skoskiewicz had performed the operations as a state employee and that, therefore, he was entitled to personal immunity. The Tenth District Court of Appeals affirmed, based on its conclusion that Dr. Skoskiewicz satisfied the definition of “officer or employee” in R.C. 109.36(A)(1)(a). Engel then appealed to the Ohio Supreme Court.
The court stated that determining whether a person is entitled to R.C. 9.86 immunity requires a two-part analysis. The first step is to determine whether the person claiming immunity is a state officer or employee and the second step is to determine whether that person was acting within the scope of employment when the cause of action arose. However, the court only addressed the first step of the analysis because it held that Dr. Skoskiewicz was not a state officer or employee. In so holding, the court determined that there was no contract of employment between the College of Medicine and Dr. Skoskiewicz, that the college of medicine did not exercise control over Dr. Skoskiewicz’s medical practice, and that the college of medicine did not pay Dr. Skoskiewicz. In addition, the court found that Dr. Skoskiewicz did not occupy a position or office with the state because he possessed no “sovereign” function of an executive, legislative, or judicial character and his duties were not of a level consonant with those of a public office. Therefore, the court concluded that Dr. Skoskiewicz was not entitled to personal immunity, reversed the judgment of the court of appeals, and remanded for further proceedings.
SOVEREIGN IMMUNITY
Sixth Circuit District Court finds school officials were entitled to qualified immunity and acted reasonably when dealing with abusive teacher.
McCoy v. Bd. of Educ. S.D.Ohio No. 2:10-cv-298, (Oct. 4, 2011), 2011 U.S. Dist. LEXIS 114710
http://scholar.google.com/scholar_case?case=2604317265580491896&hl=en&as_sdt=2&as_vis=1&oi=scholarr
John Doe, a minor attending Winterset Elementary School in the Columbus City Schools District, was a student in a fourth-grade class taught by Gary Stroup during the 2003-04 school year. In 2005, upon learning that Franklin County Children Services was conducting an investigation of Stroup based on allegations that Stroup had engaged in inappropriate physical contact with their son Doe and other children, Adam and Robin McCoy filed an action asserting various claims against Stroup, the school board, District Superintendent Gene Harris, and Winterset Principal Dora Kunz. Specifically, the McCoy’s 42 U.S.C. § 1983 claim alleged that Harris, Kunz, and the school board violated Doe’s substantive due process right to be free from assault and inappropriate touching or molestation and that the state actors breached their duty to report the alleged harassment.
The United States District Court for the Southern District of Ohio denied the McCoy’s motion for summary judgment against Harris and granted summary judgment for both Kuntz and the school board. The court found that the defendants were entitled to qualified immunity, and that they had not been confronted with such a widespread pattern of constitutional violations that their actions or inactions amounted to a deliberate indifference to the danger of Stroup abusing Doe or other students.
Federal district court rules student has cause of action for violation of privacy rights after school officials disclosed sexual orientation to her mother.
Wyatt v. Kilgore Indep. Sch. Dist. E.D.Tex. No. 6:10-cv-674, (Nov. 30, 2011), 2011 U.S. Dist. LEXIS 137836, unreported
http://scholar.google.com/scholar_case?case=11252360465766884764&hl=en&as_sdt=2&as_vis=1&oi=scholarr
S.W. was a student in the Kilgore Independent School District in Texas, and was a member of Kilgore High School’s softball team. According to S.W., two of her softball coaches called her to a meeting in the locker room where they questioned her about an alleged relationship with an older woman. S.W. claimed that the coaches threatened to, and did, disclose to her mother that she is a lesbian. She also claimed that the school’s athletic director and superintendent failed to take any action after S.W.’s mother reported the incident. S.W.’s mother filed suit on S.W.’s behalf against the school district and the coaches in federal district court alleging that the coaches had violated S.W.’s substantive due process right to privacy by disclosing her sexual orientation to her mother. S.W.’s mother also brought a claim of municipal liability against the school district, accusing it of promulgating policies that facilitated this unauthorized disclosure and failing to train its employees on how to handle the confidentiality of a student’s sexual orientation.
The school district asserted that S.W. was openly gay at the time of the incident. The coaches claimed that they questioned S.W. because they believed the older woman was a bad influence and because they were concerned that the relationship may have involved the crime of statutory rape. They also contended that they at no time raised questions regarding S.W.’s sexual orientation, but that they merely informed S.W.’s mother that S.W. was involved in an inappropriate relationship. Both the school district and the coaches filed motions for summary judgment. The coaches raised the defense of qualified immunity on the grounds that they acted in an objectively reasonable manner and did not knowingly violate S.W.’s right to privacy. The school district argued that it properly trained its employees and did not have a policy of disclosing a student’s sexual orientation.
The district court denied both motions for summary judgment. The court determined that the confidentiality branch of substantive due process privacy rights was implicated by S.W’s claim. The court further held that, based on the facts alleged by S.W., it could not find that the coaches had a legitimate interest in disclosing S.W.’s sexual orientation that outweighed S.W.’s interest in keeping that information private. The court pointed out that the coaches had no personal knowledge of any sexual contact between S.W. and the older woman. The court was unable to determine whether the coaches acted in an objectively reasonable manner because of the factual disputes between the parties, and was therefore unable to make a qualified immunity determination. Finally, the court addressed the municipal liability claim and found that a reasonable person could conclude that the school district was deliberately indifferent towards the need for additional training regarding the confidentiality of students’ sexual orientation.
Supreme Court of Ohio ruled the Board of Tax Appeals erred in deferring to Board of Revision’s decision to order a value reduction in property.
Vandalia-Butler City Schools Bd. of Edn. v. Montgomery Cty. Bd. of Revision, 130 Ohio St.3d 291, 2011-Ohio-5078.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-5078.pdf
The property at issue consists of 1.8210 acres improved with a 32,060-square-foot hotel. The auditor assigned a true value of $2,096,320 for tax year 2006. The owner, Bajarangi Corporation, filed a complaint against valuation on March 28, 2007, seeking a reduction of true value to $1,468,000. The Vandalia-Butler City Schools Board of Education filed a counter-complaint seeking to retain the auditor’s valuation. On August 2, 2007, the Montgomery County Board of Revision held a hearing on the complaint and decided to assign a value of $1,499,080 to the property.
The school board appealed to the Board of Tax Appeals, which held a hearing on December 19, 2008. At the hearing, the school board argued that there was insufficient evidence to support the reduction in value. On September 1, 2009, the Board of Tax Appeals issued its decision and ultimately adopted the Board of Revision’s valuation, finding that there was sufficient evidence to support the reduction in value.
On appeal to the Supreme Court of Ohio, the school board argued that the Board of Tax Appeals had failed to discharge its duty to base its decision on an independent weighing of the evidence. The court agreed, stating that when the Board of Tax Appeals reviews a Board of Revision decision based upon the record developed before that tribunal, the Board of Tax Appeals has the duty to independently weigh and evaluate all evidence properly before it in arriving at its own decision. The court found that the Board of Tax Appeals erred when, even though it was unpersuaded by the evidence, it adopted the Board of Revision’s reduction of value on the grounds that the Board of Revision was persuaded. The court pointed to the absence of any specific explanation of how the value of $1,499,080 was supported by the evidence. Accordingly, the court vacated the Board of Tax Appeals’ decision and remanded for further proceedings.
Supreme Court of Ohio reversed Board of Tax Appeals granting a tax exemption where income from the property, rather than the property itself, was being used to support a state university.
Columbus City School Dist. Bd. of Edn. v. Testa, 130 Ohio St.3d 344, 2011-Ohio-5534
www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-5534.pdf
In 1992, The Ohio State University acquired title to a two-story building located south of the OSU campus, which generated rental income from commercial and residential tenants. The acquisition was subject to a requirement that the proceeds from the property be used to support OSU’s David Stuart White Fellowship Fund.
In May 2004, OSU filed an application for a tax exemption on the property for 2004, pursuant to RC 3345.17, which provides that state-university property is exempt from real property taxation if it is “used for the support of such university.” In March 2008, the tax commissioner granted the exemption. The Columbus City School District Board of Education appealed the commissioner’s determination to the Board of Tax Appeals. In upholding the commissioner’s determination, the BTA rejected the school board’s contention that income-producing property may not be exempted under the statute unless the activity conducted on the property bears an “operational relationship” to university activities.
The Supreme Court of Ohio reversed the BTA’s decision. The Court held that OSU had failed to sustain its burden to show that the language of the statute clearly expresses the exemption in relation to the facts of the claim, because the statute does not explicitly allow the exemption to the use of income from property, but rather to the use of the property itself. The legislative history of the statute was found to negate the intent to permit property to qualify for exemption based solely on the use of its income. The Court held that case law did not establish the availability of exemption based solely on the use of income. Finally, the Court held that the physical proximity of the property in relation to OSU’s campus and the fact that the ultimate destination of the property’s income was a scholarship fund did not permit the exemption.
Mississippi appellate court upholds school board’s termination of teacher for refusal to submit to drug test.
Smith Cnty. Sch. Dist. v. Barnes (Miss.App.Ct. Sept. 20, 2011), Case No. 10-681, unreported
http://scholar.google.com/scholar_case?case=4596251148076372710&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Laura Barnes was employed by the Smith County School District as a teacher. In May 2009, the principal received reports from other teachers that Barnes was laying on the floor of her darkened classroom while students were present. Barnes told the other teachers that she was in severe pain due to an ovarian cyst. School district officials determined that Barnes, pursuant to the school district’s drug and alcohol policy, should be requested to submit to drug testing.
Barnes initially agreed to the testing, but refused after her attorney advised not to submit to the test. The school district’s superintendent subsequently informed Barnes that she was being terminated for refusing to submit to a drug test, neglect of duty, and insubordination.
Barnes requested, and was given, a hearing before the school board, in which the board affirmed Hancock’s decision. The board found that Barnes’ dismissal was a proper employment decision that was supported by substantial evidence, was not arbitrary or capricious, and did not violate Barnes’ constitutional or statutory rights.
When Barnes appealed the school board’s decision to a state trial court, the court reversed the board’s decision and reinstated Barnes. It concluded that the board’s decision was arbitrary or capricious because the board strictly held Barnes to the drug and alcohol policy but failed to hold itself to the same standard. Specifically, the court found that the record did not show, as required by the district’s drug and alcohol policy, that the superintendent was the one who made the decision as to whether there was reasonable suspicion sufficient to request that Barnes take a drug test.
On appeal, the district argued that Barnes’ behavior was sufficient to cause reasonable suspicion that she might be using drugs while on duty and that based on that suspicion the principal was justified in requesting that Barnes submit to drug testing. The Mississippi appellate court reversed the trial court’s decision, holding that it erred in concluding that the board’s decision was arbitrary and capricious. They found that the board’s decision was not arbitrary in that it was done according to reason or judgment and that the board had relied on the clear language in the school district’s drug and alcohol testing policy when affirming Barnes’ termination.
NOTE: Certiorari was granted in this case to the Mississippi Supreme Court.
Tenth District affirms Franklin County Court of Common Pleas’ decision upholding arbitration award.
Reynoldsburg City School Dist. Bd. of Edn. v. Licking Heights Local School Dist. Bd. of Edn. , 2011-Ohio-5063
www.sconet.state.oh.us/rod/docs/pdf/10/2011/2011-ohio-5063.pdf
Reynoldsburg City School District Board of Education and Licking Heights Local School District Board of Education entered into a territorial agreement in 1991, pursuant to which the parties agreed to transfer certain territories between their districts and share tax proceeds from these territories. The parties also agreed to a binding dispute resolution process.
In 2008, the state superintendent appointed a hearing officer, pursuant to the 1991 agreement, to resolve a dispute between the parties regarding the split of certain tax proceeds. Over Reynoldsburg’s objections, the hearing officer issued an order requesting the Ohio Department of Education (ODE) to perform charge-off simulations. Based upon ODE’s simulations, the hearing officer issued an order concluding Reynoldsburg owed Licking Heights $1,108,439.
On October 21, 2010, Reynoldsburg filed a motion to vacate the arbitration award in the Franklin County Court of Common Pleas. On January 27, 2011, the trial court issued judgment, in which it denied Reynoldsburg’s motion. Reynoldsburg appealed, asserting that the trial court erred in denying Reynoldsburg’s motion because the hearing officer exceeded his powers under the agreement when he delegated his powers to ODE and because the arbitration award was procured by corruption and fraud, and that the hearing officer was partial and corrupt.
On appeal, the court upheld the trial court’s finding that the hearing officer did not exceed his powers when he sought input from ODE regarding the calculations and then issued his own independent decision. The court also held that Reynoldsburg had failed to present any evidence of partiality or abuse of authority on the part of the hearing officer, thereby overruling Reynoldsburg’s assignments of error and affirming the judgment of trial court.
Sixth Circuit vacates the sentence of Kentucky school board’s finance director because the district court did not satisfactorily explain the basis for the sentence upon objection.
United States of America v. Vanhoose (C.A.6, 2011), 446 Fex.Appx. 767
http://federal-circuits.vlex.com/vid/usa-v-peggy-vanhoose-334892054
Peggy Vanhoose worked as finance director for the Johnson County Board of Education. In 2005, the district superintendent realized that Vanhoose received both a salary and retirement pay, and that she earned far more than the board’s records reflected.
In 2007, a jury convicted Vanhoose on three counts of stealing federal funds. The presentence report assessed the applicable loss at $468,916, resulting in an offense level increase of fourteen points. The district court overruled Vanhoose’s objections to the report and adopted the report’s recommendation. Vanhoose was sentenced to 63 months in prison, supervised release for a period of three years, and restitution in the amount of $465,384.
Vanhoose appealed the sentence, contending that the district court failed to comply with Rule 32(i)(3) of the Federal Rules of Criminal Procedure because it summarily adopted the factual findings of the report.
The United States Court of Appeals for the Sixth Circuit vacated the district court’s sentence and remanded for resentencing. First, the court held that Vanhoose had contested the calculations used in the report, and that Rule 32’s requirements were in fact triggered. Then the court held that the district court’s pronouncement that it reviewed the report and was persuaded by its analysis was not enough to comport with Rule 32’s requirements. Rather, the district court must actually find facts and explain how it calculated the amount of loss. Finally, the court held that it could not conclude that the error was harmless, as the report’s recommended 14-level increase was based on a loss of $468,916; if the loss were $400,000 or less, there would only be a 12-level increase.
United States District Court for the Northern District of Ohio denies the United States’ motion for relief from judgment implementing a voting plan.
United States of America v. Euclid City Sch. Bd. (N.D.Ohio Oct. 28, 2011), Case No. 08-CV-2832, 2011 U.S. Dist. LEXIS 125167, unreported
http://law.justia.com/cases/federal/district-courts/ohio/ohndce/1:2008cv02832/154655/61
The city of Euclid’s former method of electing school board members denied minorities the opportunity to participate in the political process, in violation of § 2 of the Voting Rights Act. The United States District Court for the Northern District of Ohio considered the Euclid City School Board’s proposed remedies and concluded that a “two-thirds” turnout model would be used to determine whether a sufficient number of minority voters existed to meet the “threshold of exclusion,” defined as the percentage of the vote that will guarantee the winning of a seat even under the most unfavorable circumstances. Under this two-thirds model, African-American voters in Euclid would comprise 27% of the electorate, which would be above the threshold of exclusion for a three-seat election. In July 2009, the court concluded that the board’s proposal cured the violation.
Four months after the court approved the new voting proposal, the city of Euclid held a school board election in which one African-American candidate and three white candidates ran for three open seats. The three white candidates were elected to the open seats. Based on these results, the United States argued that relief from the July 2009 Order was necessary because the results of the board’s subsequent elections demonstrated that the electoral plan did not remedy the board’s violation of the Voting Rights Act.
The court denied the United States’ motion because it was both procedurally improper and lacked substantive merit. First, the court held that the United States’ April 2010 motion was untimely because motions that claim legal error must be brought within the time permitted to appeal from the judgment in question and the time to appeal the July 2009 Order had long since expired. Next, the court held that the United States had an opportunity to appeal the July 2009 Order but then made a conscious decision to dismiss its appeal. Finally, the court held that it did not err by adopting the two-thirds voter turnout model, as the court’s duty was to ensure genuine opportunity for all citizens, not to guarantee particular results. The court pointed to the fact that the African-American preferred candidate, receiving over 59% of the African-American votes, actually won one of the three open seats. Also, the African-American candidate would have won one of the seats if all of the African-American votes were reallocated to her. Therefore, the court was unconvinced that using the two-thirds model was legal error accompanied by extraordinary circumstances sufficient to warrant relief.