In this issue: Academic Distress Commissions • Administrative Appeal • First Amendment • Copyrights • Due Process • Individuals With Disabilities • Sexual Orientation • Sick Leave • Territory Transfer
Supreme Court of Ohio concludes that passage of HB 70, creating academic distress commissions, did not violate the three-reading rule; it was not vitally altered as it did not depart entirely from a consistent theme.
Youngstown City School Dist. Bd. of Edn. v. State of Ohio, Slip Opinion No. 2020-Ohio-2903.
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-2903.pdf
In 2015, House Bill (HB) 70, a 10-page bill expanding local school districts’ ability to create community learning centers, was introduced. The Ohio House of Representatives passed HB 70 in May 2015. The bill was considered by the full Senate twice before being assigned to the Senate Education Committee. In late June, the committee added a 67-page amendment revising Ohio Revised Code (RC) 3302.10 and allowing academic distress commissions to be formed for school districts receiving an “F” on the state’s school district report card. The amendment targeted the Youngstown City School District as the first district to be taken over by an academic distress commission. It gave the commission the authority to appoint a chief executive officer with full “operational, managerial and instructional control” of the district.
The bill was reported out of the committee on June 24, 2015, and went to the Senate floor that day. The full Senate adopted the committee’s amendments and passed the bill 18-14. The House agreed to the Senate’s amendments, and the bill was later signed into law by Gov. John Kasich, with an effective date of Oct. 15, 2015.
In August 2015, the Youngstown City School District filed a lawsuit, asking for a permanent injunction to prevent the law from taking effect. In 2017, the trial court denied the injunction, and the district appealed to the Tenth District Court of Appeals. The Tenth District upheld the trial court’s decision in June 2018, and Youngstown City Schools appealed to the Supreme Court of Ohio, which agreed to hear the case.
The Youngstown City School District Board of Education claimed that the passage of HB 70 violated the Ohio Constitution. Specifically, the board argued that the bill violated both Article II, Section 15(C) and Article VI, Section 3 of the Ohio Constitution.
Article II, Section 15(C), the three-reading rule, required every bill to be considered by each house three times on three different days, unless the House or Senate suspended the rule by a two-thirds vote of its members. The three-reading rule is newly triggered when a bill that has already been considered by one or both chambers is “vitally altered.” Youngstown argued that the substance and size of the amendments to the bill by the Senate Education Committee should have triggered the three-reading rule. Youngstown contended that the fact that the rule was not triggered violated the constitution.
Article VI, Section 3 states that each school district within a city will have the power to determine the number of its members and the organization of its school board by public vote. Youngstown argued that HB 70’s grant of authority to academic distress commissions would unconstitutionally strip away all of the decision-making authority from local districts.
In its decision, the Supreme Court of Ohio held that HB 70 did not violate the three-reading rule because the bill was not vitally altered over the course of the Senate’s three readings. The court stated that a bill was vitally altered when it “depart[ed] entirely from a consistent theme,” meaning that the altered bill did not maintain a common purpose before and after its amendment. The court held that HB 70’s common purpose was to improve education in underperforming school districts, and that this common purpose was maintained before and after the amendments made by the Senate. The court noted that the amendments did not alter HB 70’s goal of seeking to improve underperforming schools, although the amendments altered the tools through which that goal may be achieved.
The court further held that HB 70 did not violate Article VI, Section 3 of the Constitution by removing decision-making authority from a city school board when an academic distress commission is established for an underperforming school district. The court cited previous precedent in which Article VI, Sections 1, 2 and 3 of the Ohio Constitution were interpreted to grant the General Assembly “broad powers to provide a thorough and efficient system of common schools … and for the organization, administration, and control thereof.” The court noted that boards of education have only those powers that are specifically granted to them by statute, and Article VI, Section 3 was not meant to grant school boards or the local voters more power than the General Assembly to organize public education systems within a given district.
The court concluded that Section 3 governed the size and organization, rather than the power and authority, of city school boards. The court agreed with Youngstown that Section 3 grants a positive right to local voters in a district to set the number of members and organization of their school boards but disagreed that the section also limits the authority of the General Assembly over those same school districts. In short, while the court acknowledged that HB 70 would allow an academic distress commission to remove “nearly all power and authority from a city school board” and transfer that authority to an appointed chief executive officer for the district, this result was within the scope of the General Assembly’s constitutional power to provide an efficient educational system, granted by Article VI, Sections 1, 2, and 3 of the Ohio Constitution.
Appeals court affirms common pleas court’s dismissal of an administrative appeal due to parents failing to file notice of appeal to the board.
Li v. Revere Local Schs. Bd. of Educ., 2020-Ohio-3157, 2020 Ohio App. LEXIS 2101, 2020 WL 2893421 (Ohio Ct. App., Summit County June 3, 2020).
In March 2016, the board suspended the Lis' son with a recommendation for expulsion following a disciplinary incident. The Lis appealed the suspension, and a hearing took place before the board's designee. Following the hearing, the board's designee sent a letter to the Lis upholding their son's suspension. The Lis then attempted to file an administrative appeal in the Summit County Court of Common Pleas. However, upon motion from the board, the common pleas court determined that the Lis did not file a timely notice of appeal with the board and dismissed the administrative appeal for lack of jurisdiction.
Ohio Revised Code 2505.07 provides the time period within which a notice of appeal must be perfected. The statute states that after the entry of a final order by "an administrative officer, agency, board, department, tribunal, commission, or other instrumentality, the period of time within which the appeal shall be perfected is … thirty days." Further, if the notice of appeal is filed with the administrative body after the 30-day period, then the notice of appeal is untimely, and the court lacks jurisdiction to consider the appeal.
The board's decision was issued on March 18, 2016, and the Lis' deadline to file their notice of appeal with the board was April 17, 2016. The record showed that the Lis filed a notice of appeal in the court of common pleas on April 11, 2016. The certificate of service attached to the notice of appeal states that a copy of the notice of appeal was provided that same day to Attorney Helen S. Carrol, the board's outside counsel, and to the Ohio Department of Education.
The court had previously rejected the argument that service of a notice of appeal on the opposing party's lawyer is the same as filing it with the appropriate administrative body. The Lis stated a copy of the appeal was sent to the superintendent but could not produce a post mark or any other evidence that service of a notice was perfected. Having no evidence that service to the board was perfected, the court affirmed the common pleas court’s dismissal of the administrative appeal.
U.S. Supreme court strikes down Montana state court decision and concludes that if a state provides funds to subsidize private education, it cannot exclude religious schools from receiving the funds.
Espinoza v. Montana Dept. of Revenue., 207 L.Ed.2d 579 (2020).
https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf
In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit up to $150 for any person making a donation to a private scholarship organization, which then used the funds for scholarships allowing students to attend private schools. The program was aimed at providing parent and student choice in education.
The legislature directed that the program was to be administered in accordance with Montana’s constitutional provision prohibiting government aid to sectarian schools. In order to achieve this objective, the Montana Department of Revenue (MDR) adopted a rule prohibiting families from using scholarships awarded under the program at religious schools.
Three families who wanted to use scholarships provided under the program sued MDR on the basis that the rule discriminated against them on the basis of their religious views and the religious nature of the school they had chosen for their children. The Montana Supreme Court struck down the tax-credit program, concluding that the program violated the state constitution’s ban on providing public aid to churches and religious schools. The parents appealed the state’s decision to the U.S. Supreme Court.
The U.S. Supreme Court rejected the Montana court’s decision by a vote of 5-4. The majority opinion, written by Chief Justice Roberts, concluded that the state court’s interpretation of Montana’s constitution violated the U.S. Constitution by interfering with the free exercise of religion.
The court stated that states are not required to subsidize private education. However, if they do provide such support, they cannot exclude religious schools from receiving those funds. To do so is to treat people who are religious unequally, in violation of the First Amendment free exercise clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The court stated that the Montana’s court’s decision had to be reviewed with strict scrutiny. The court cited its decision in Trinity Lutheran Church of Columbia v. Comer, 582 U.S. ___ (2017), which held that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes a “penalty on the free exercise of religion that triggers the most exacting scrutiny.”
The court stated that the Montana court’s application of the state constitution’s “no-aid” provision imposes “special disabilities on the basis of religious status” and conditions “the availability of benefits upon a recipient’s willingness to surrender religiously impelled status.”
The court concluded that, to be eligible for government aid under the Montana Constitution as interpreted by the state’s supreme court “a school must divorce itself from any religious control or affiliation.” Quoting Trinity Lutheran, the court stated: “Placing such a condition on benefits or privileges ‘inevitably deters or discourages the exercise of First Amendment rights.’”
The court noted that even “indirect coercion,” which results from the state’s disqualification of the religious from government aid, punishes the free exercise of religion.
The court also dismissed the state’s argument that the no-aid provision promotes public education by ensuring that public funds are not diverted to private providers. The court stated that the no-aid provision bars aid only to religious schools rather than to any private school. “Montana’s interest in public education cannot justify a no-aid provision that required only religious private schools to ‘bear [its] weight.”
Justice Clarence Thomas wrote a consenting opinion in which Justice Neil Gorsuch concurred. Justice Samuel Alito also prepared a consenting opinion.
Justices Ruth Bader Ginsburg and Stephen Breyer both wrote dissenting opinions, in which they were joined by Justice Elana Kagan. Justice Sonia Sotomayor also wrote a dissenting opinion.
A school employee publicly displaying a passage from a work in a school locker room and on the employee’s personal social media account are considered fair uses.
Bell v. Worthington City Sch. Dist., 2020 U.S. Dist. LEXIS 96424 (S.D. Ohio, June 2, 2020).
https://casetext.com/case/bell-v-worthington-city-sch-dist
Dr. Keith Bell, a sports psychologist, author, professional speaker and athletic consultant, wrote the book Winning Isn’t Normal (WIN). WIN contains a motivational sports passage that begins “Winning isn’t normal.” In addition to WIN book sales, Bell sells WIN-related products and licenses WIN to others to use, display and perform. The Worthington City School District employed two basketball coaches, Coach Souder and Coach Luzador, who publicly displayed the “Winning isn’t normal” passage. Coach Souder read the passage aloud to the basketball team, attributing it to Bell, and hung a verbatim copy in the team’s locker room. Coach Luzador retweeted a near identical copy of the passage on his personal Twitter feed without attribution to Bell. Bell sued the school district, as well as a photography service, and the parties filed cross motions for summary judgment. The school district argued fair use in its defense.
With three fair use factors weighing in favor of fair use and one factor neutral, the court found the coaches’ uses of WIN were fair use.
In deciding this case, the court noted the rights granted to copyright owners in the Copyright Act are qualified by “[l]imitations on exclusive rights,” such as the fair used doctrine. In determining whether the use of a copyrighted work in any particular case is a fair use, the factors to be considered shall include: (1) the purpose and character of the use or is it for educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The first factor, the purpose and character of the use, favored fair use because while the verbatim copying was not transformative, the coaches’ uses were educational because they aimed to teach athletic “lessons in good sportsmanship and fair play.” Additionally, the coaches’ uses were noncommercial because neither the coaches nor the school district profited from displaying the passage.
The second factor, the nature of the work, also favored fair use because WIN had been published and the passage had been widely distributed online prior to the coaches’ uses, so Bell’s right to control WIN’s first publication was not affected. Further, WIN was a mix of fact and fiction, which “d[id] not persuade the Court in either direction.”
The third factor, the amount and substantiality of the work used, was neutral. Defendant’s copying was minimal in quantity, as the passage is a small portion of the WIN book, but substantial in quality, as the passage is the heart of the WIN book.
The fourth factor, the effect of the use upon the potential market for or value of the work, favored fair use. The court explained that when a use is noncommercial, the burden of demonstrating market harm rests with the copyright holder. At the time of coaches’ use, Bell did not hold a separate copyright registration for the passage alone, so the court considered the market harm for the WIN book as a whole. Beyond “conclusory statements” that the coaches’ use, if widespread, would adversely impact the market for WIN, Bell was unable to present evidence demonstrating a connection between the coaches’ use and harm to the market for WIN’s book sales or speaking engagements. The court observed the coaches’ use may actually help the market for Bell’s work by enhancing his reputation.
Appellate court determines federal due process claims fail in summary judgment, but state due process claims can be refiled in state court.
M.J. v. Akron City Sch. Dist. Bd. of Educ., 2020 U.S. Dist. LEXIS 74270.
https://casetext.com/case/mj-v-akron-city-sch-dist-bd-of-educ
Two cases were consolidated to create this case regarding two minors attending Akron City Schools, M.J. and W.H.
It was not uncommon for members of the Akron Police Department (APD) to visit Leggett Community Learning Center (Leggett). In 2017, there was an on-going initiative by the APD whereby officers would visit Leggett and other schools in the district to conduct walkthroughs once or twice a week. The walkthroughs were to allow police to familiarize the officers with each school’s layout and build rapport with students and staff. The district also had resource officers but not at every school, resource officers visited multiple buildings a day. All visitors to Leggett had to be buzzed in and needed to sign in each time they visited the school. However, due to the number of officers coming and going to the schools, police officers typically did not sign the visitor’s logbook.
Christopher Hendon visited Leggett for the first time on April 6, 2017. On that day, a parent was called for a misbehaving boy and was asked to pick the child up from school. The mother initially agreed to pick up the boy but called back 15 minutes later and said that her boyfriend, whom she indicated was a police officer, would come and get the child. Hendon was the boyfriend and impersonated a police officer and gained access to the building by greeting APD officers in front of staff while those officers were busy removing an irate parent. The initial meeting with other officers made staff believe he was in fact a police officer. He remained in the building that day discussing with staff a “scared-straight” program and eventually left with his girlfriend’s son.
The next day he arrived at Leggett and spoke to the principal about starting the scared-straight program at Leggett. The principal stated they would not have the program at Leggett. Over the next days, Hendon showed up at Leggett multiple times and talked with students and staff, and even spoke to parents off-campus. During these visits he verbally berated misbehaving children M.J. and W.H and, after speaking with their parents, handcuffed them to fulfill the process of the supposed scared-straight program. On April 26, 2017, Hendon was arrested with numerous offenses.
Plaintiffs asserted that under 42 United States Code (USC) § 1983, the student-plaintiffs' substantive due process rights were violated. Plaintiffs alleged claims against the individual defendants under theories of "special relationship" and "state-created danger." To establish a cause of action under 42 USC § 1983, a plaintiff must show: (1) a deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under color of state law.
The Sixth Circuit uses three tests to determine if a private actor's conduct amounts to state action. These are commonly referred to as: (1) the public function test; (2) the state compulsion test; and (3) the symbiotic relationship or nexus test. Under the public function test, a private party is deemed a state actor if he or she exercised powers traditionally exclusively reserved to the state. The state compulsion test requires that the state exercise such coercive power or provide such significant encouragement, either overt or covert, that in law the choice of the private actor is deemed to be that of the state. Finally, under the symbiotic relationship, or nexus, test, the action of a private party constitutes state action when there is a sufficiently close nexus between the state and the challenged action of the private actor so that the action of the latter may be fairly treated as that of the state itself. The court determined the plaintiff did not provided adequate evidence for any of the tests and failed to show that Hendon’s action amount to state action.
The liability for Hendon’s actions under a theory of special relationship failed because the plaintiff used state agency principles to satisfy the statutory requirements of a federal statute. However, the analysis regarding state-created danger took more scrutiny.
Liability under the state-created danger theory is predicated upon affirmative acts by the state that either created or increased the risk that an individual will be exposed to private acts of violence. The court stated in determining whether an affirmative state act increased the risk of harm to an individual, the question is whether the individual was safer before the state action than after it. Assuming the existence of qualifying affirmative acts, the court then evaluated the evidence in each case — and as to each defendant — the "requisite culpability to establish a substantive due process violation under the Fourteenth Amendment.”
Each case was then analyzed separately. In the M.J. case, the court determined there were several actions taken by staff and teachers in this case that would qualify as affirmative acts. There were several unanswered questions on deliberate indifference, so the court precluded dismissal of the substantive due process claim as against the principal. The court then analyzed if qualified immunity protected the principal and determined the plaintiffs failed to identify any case wherein school officials were held responsible for failing to prevent an imposter posing as a police officer from abusing a child and hence the principal was entitled to qualified immunity. In the W.H. case, the court decided that the teacher did not act with the knowledge of facts that would give rise to an inference of a substantial risk of serious harm to W.H. or that she acted in response to any known risk in a manner that shocked the conscience, and summary judgment was appropriate for all defendants.
The plaintiffs also brought equal protection and Americans with Disabilities Act/Rehabilitation Act claims. These claims failed due to the plaintiff’s failure to show deliberate indifference by any state or private actors to any known discrimination. The state claims were dismissed without prejudice to allow for refiling in state court.
Magistrate recommends, and court accepts, dismissing parent’s claims for individual liability and punitive damages against the district and employees but allowing other claims to proceed.
Parker v. W. Carroll School Dist., W.D.Tenn. No. 20-1044-STA-tmp, 2020 U.S. Dist. LEXIS 110448 (May 27, 2020), report and recommendation accepted, (June 23, 2020).
https://scholar.google.com/scholar_case?case=6797837835381893195&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Ryanne Parker was the mother of N.P., a high school student in West Carroll School District. N.P., a child with autism, received special education services through an individualized education program (IEP). In December 2018, Parker asked for an IEP team meeting to consider whether N.P. needed additional services. Parker alleged that the district ignored her request for more than a month. In May 2019, Tammy Davis, N.P.’s special education teacher, recommended that her IEP be modified to reduce the amount of extended school year (ESY) services she would receive. Parker refused to agree to the change. West Carroll ignored Parker’s objection, mailed her a finalized IEP reducing N.P.’s ESY services with the words “refused to sign” written on her signature line.
Parker filed a complaint with the Tennessee Department of Education (TDE) alleging that West Carroll failed to provide appropriate services. Following an investigation, TDE concluded that West Carroll violated Parker’s and N.P.’s substantive and procedural rights under the Individuals with Disabilities Education Act (IDEA) and state education law. The conclusion was based on West Carroll’s failure to convene an IEP meeting within 10 days of Parker’s request; finalizing N.P.’s IEP without Parker’s consent; and unilaterally cutting N.P.’s services. TDE ordered compensatory educational services, IEP meetings and training on special education for West Carroll’s staff.
After TDE's order, Parker filed a request for a due process hearing, which West Carroll held. Parker said that, while she was generally satisfied with the curriculum and services N.P. was receiving, she wanted the administrative law judge (ALJ) to award her damages to compensate her and her daughter for the harms caused by West Carroll's actions in the 2018-19 school year. The ALJ explained he did not have that authority and that Parker needed to file a complaint in state court if she wanted to recover damages. The ALJ issued a decision that imposed somewhat broader obligations on West Carroll than were imposed on the school district by TDE. Parker then filed suit in state court against West Carroll, and three district employees, Dexter Williams, Dana Carey and Tammy Davis, alleging violations of IDEA, the Americans with Disabilities Act (ADA), Sec. 504 of the Rehabilitation Act and state law, and seeking damages as relief.
West Carroll removed to federal court and moved to dismiss. It argued that Parker's suit should be dismissed because she failed to exhaust her administrative remedies. It also argued that Parker did not have standing to assert claims under ADA and Sec. 504 because Parker has brought the action on her own behalf while the harms she alleged in her complaint were suffered by her minor child. It also asked the court to dismiss Parker's claim for punitive damages against West Carroll. Parker moved to remand the action to state court, arguing that all of her claims were based on state law.
The magistrate judge recommended denying Parker’s motion to remand. It concluded that West Carroll had successfully demonstrated the existence of original jurisdiction over Parker’s IDEA claim. It concluded that removal from state to federal court was appropriate for the same reason.
The court recommended denying West Carroll’s motion to dismiss Parker’s claim for failure to exhaust her administrative remedies. While the court agreed that the gravamen of Parker’s complaint was denial of a free and appropriate public education, it noted that she was seeking only money damages in the suit before the court. The court stated that the forms of relief Parker might have sought through the administrative process had already been obtained and requiring her to pursue further administrative proceedings to obtain a form of relief the administrative process could not provide would be futile.
West Carroll moved that Parker’s complaint should be dismissed because she had no standing to bring a complaint on her own behalf for harms suffered by her minor child. Parker moved to amend her complaint to add her minor child. The court recommended denying West Carroll’s motion to dismiss and granting Parker’s motion to amend, stating that West Carroll had articulated no reason why leave to amend should not be granted.
The court recommended dismissing Parker’s claims against the individuals Carey, Davis and Williams, concluding that IDEA, ADA and Sec. 504 do not impose liability on government officials as individuals. It also recommended dismissing the punitive damages claims against West Carroll on the basis that IDEA, ADA and Sec. 504 do not authorize punitive damages.
District court finds parent of student with a disability failed to provide sufficient evidence to support claim that school district did not provide equal athletic opportunities to girls participating in tennis.
Clemons v. Shelby Cty. Bd. of Educ., No.19-5846 (6th Cir. 2020), 2020 U.S. App. LEXIS 19462 (June 20, 2020).
https://law.justia.com/cases/federal/district-courts/kentucky/kywdce/3:2015cv00552/95027/47/
Keshia Clemons sued the Shelby County Board of Education on behalf of her daughter, T.W. Beginning in her eighth-grade year at Martha Layne Collins High School (Collins), T.W. began to experience a significant amount of anxiety. In December, Clemons sought professional assistance from a therapist who conducted an evaluation of T.W. In February 2014, the therapist diagnosed T.W. with Asperger’s Syndrome Disorder. Clemons did not seek any special education services or accommodation for T.W. during that school year.
T.W. decided to participate on the girls’ tennis team in 2014. During February, while the evaluation was ongoing, T.W. experienced meltdowns during practice and slipped away from practice when she felt uncomfortable. She also came home crying because she felt she was singled out for criticism by the coach. Clemons told the coach he was not giving T.W. positive encouragement.
On Feb. 17, 2014, following a bad practice, Clemons shared T.W.’s diagnosis with the coach and then discussed the matter over the telephone. During the following months, T.W. participated in exhibition and varsity matches. However, at the end of April, Clemons and T.W. found out that T.W. would not be competing in the regional tournament and T.W. then threatened to commit suicide. Clemons visited the school and met with T.W. and two school officials and later attended the team practice where she perceived that the coach was ignoring her daughter. Clemons angrily confronted the coach, making other parents concerned about the coach’s safety.
Clemons withdrew T.W. from Collins and decided to home-school her for the remainder of the year. In June 2014, Clemons wrote to the district’s superintendent describing the events of the past year involving the tennis team.
Clemons enrolled T.W. at Collins for the 2014-15 school year and held a series of meetings with school officials to discuss an individualized accommodation plan, as provided by Sec. 504 of the Rehabilitation Act (Sec. 504). She did not request any accommodations related to the tennis team. The tennis coach decided to not select T.W. for the tennis team, in part because he was concerned that he was the source of T.W.’s anxiety and he did not want to contribute to her anxiety again. The school directed the coach to put T.W. onto the team, and Clemons then asked for accommodations related to the team, which the school agreed to implement in a Sec. 504 plan.
Apart from these discussions, T.W. still had additional problems with the coach and team. Clemons decided, on April 1, 2015, to withdraw T.W. from Collins and home-school her for the remainder of the school year. In June, Clemons filed her action asserting claims under Title IX of the Education Amendments of 1972 (Title IX), Sec. 504, the Equal Protection Clause of the Fourteenth Amendment and the Kentucky Constitution. The court granted summary judgment to the district on all of Clemons’s claims.
Considering her Title IX claim that the district failed to provide equal athletic opportunities to girls participating in tennis at Collins, the court concluded that Clemons had failed to provide direct evidence to support her claim. It also concluded that she failed to provide evidence to establish a claim under the burden shifting test developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). The court dismissed her Title IX claims against individual defendants because there is no individual liability under Title IX.
The court concluded that Clemons failed to provide direct evidence to support her Sec. 504 claim that the district discriminated against her daughter. Turning again to the McDonnell Douglas burden shifting framework, the court assumed that Clemons could satisfy her burden to prove a prima facie case. However, it considered that the facts demonstrated that the district could establish a legitimate, nondiscriminatory reason for its actions, and that Clemons could not show that the district’s reason was a pretext for discrimination.
Finally, the court granted summary judgment to the district on Clemons’ Equal Protection claim because it concluded that she also had failed to identify any evidence to demonstrate how T.W. was treated differently than any similarly situated nondisabled students.
District court finds all factors of a motion for preliminary injunction weigh in favor of defendants.
Worthington City Sch. Dist. Bd. of Educ. v. Moore, 2020 U.S. Dist. LEXIS 124026 (S.D. Ohio July 15, 2020).
Defendants Lance and Susan Moore are the parents of C.M., a minor child. All reside in the Worthington City School District (district). C.M. is autistic and has been identified as a student with a disability pursuant to the Individuals with Disabilities Education Act (IDEA. The Worthington City School District Board of Education (board), alleges C.M. was being educated by the district until 2014, when defendants brought their first due process complaint to the Ohio Department of Education (ODE) alleging the district's individualized education program (IEP) was failing to provide C.M. with free appropriate public education (FAPE) pursuant to IDEA. As a result of the complaint, the parties entered into a settlement agreement, in which the district agreed to cover the expense of sending C.M. to Bridgeway Academy. At the end of the 2018 school year, the district declined to extend the term of the settlement agreement because it believed it could fulfill its obligations to provide C.M. with FAPE. The defendants brought a second due process complaint in June 2018, and C.M. returned to the district while the complaint was ongoing. Defendants filed an amended complaint in January 2019, alleging C.M. was still not receiving FAPE in the district.
On June 26, 2019, the parties entered into another settlement agreement, which is at issue in this case. The agreement provided for, among other things, C.M.'s placement at Bridgeway Academy at the district's expense. In turn, the defendants agreed to release and discharge the district from "any and all claims, demands, actions, causes of action or suits at law or in equity of whatsoever kind and nature, which defendants and/or C.M. may have had, now have, or may now or hereafter assert against the Board and its Agents for the entire period prior to this Agreement, and during the term of this Agreement, with respect to C.M. and his education including but not limited to claims regarding the provision of FAPE." The agreement defined the term as "the beginning of the summer of 2019 to the end of the summer of 2024."
On Feb. 19, 2020, Bridgeway Academy expelled C.M. from its school. The defendants then filed another due process claim on March 5, 2020, with the ODE, alleging the district has denied C.M. FAPE by refusing to provide any programming since Feb. 19, 2020. The defendants allege any waiver "is for past claims and any services delivered by the agreed-upon service provider." The defendants alleged C.M.'s current IEP fails to provide FAPE; that Bridgeway Academy was the only viable alternative; and that the district is now refusing to pay for any placement that exceeds the costs of Bridgeway. The board claims the district informed the defendants it would be willing to amend the agreement with a different placement so long as its financial obligations did not increase. The board claims it identified three programs that educate children with autism in central Ohio that it would pay for, though it does not allege C.M. has been accepted into any of those schools. The defendants, however, contend that the board denied any obligation to provide FAPE to C.M. pursuant to the settlement agreement after he was expelled from Bridgeway. As a result of the request for a due process hearing, the hearing officer scheduled a due process hearing beginning on July 16, 2020.
The board brought claims under 20 United States Code § 1415(e)(2)(F) for enforcement of the IDEA settlement and for breach of contract against defendants and brought a motion for a temporary restraining order and preliminary injunctive relief. The court held a conference and orally denied the board's motion for a temporary restraining order, finding no immediacy or irreparability of harm.
The court balances four factors when considering a motion for preliminary injunction: whether the movant has a strong likelihood of success on the merits; whether the movant would suffer irreparable injury without the injunction; whether issuance of the injunction would cause substantial harm to others; and whether the public interest would be served by the issuance of the injunction. The court determined all four factors weighed in favor of defendants and denied the motion.
Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
Bostock v. Clayton Cty., 140 S. Ct. 1731, 590 US __ (2020).
https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Gerald Bostock, a gay man, began working for Clayton County, Georgia, as a child welfare services coordinator in 2003. During his 10-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. In 2013, Bostock began participating in a gay recreational softball league. Shortly thereafter, Bostock received criticism for his participation in the league and for his sexual orientation and identity generally. During a meeting in which Bostock’s supervisor was present, at least one individual openly made disparaging remarks about Bostock’s sexual orientation and his participation in the gay softball league. Around the same time, Clayton County informed Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.”
Within months of his termination, Bostock filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Three years later, in 2016, he filed a pro se lawsuit against the county alleging discrimination based on sexual orientation in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed his lawsuit for failure to state a claim, finding that Bostock’s claim relied on an interpretation of Title VII as prohibiting discrimination on the basis of sexual orientation, contrary to a 1979 decision holding otherwise, the continued which was affirmed in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017). Bostock appealed, and the US Court of Appeals for the Eleventh Circuit affirmed the lower court.
Justice Neil Gorsuch authored the opinion for the 6-3 majority of the Court holding that an employer who fires an individual employee merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964
Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.” Looking to the ordinary public meaning of each word and phrase comprising that provision, the court interpreted to mean that an employer violates Title VII when it intentionally fires an individual employee based, at least in part, on sex. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the very practice Title VII prohibits in all manifestations. Although it acknowledged that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons, the court gave no weight to legislative history because the language of the statute unambiguously prohibits the discriminatory practice.
Justice Samuel Alito, joined by Justice Clarence Thomas, authored a dissenting opinion criticizing the majority for attempting to “pass off its decision as the inevitable product of the textualist school of statutory interpretation,” but actually revising Title VII to “better reflect the current values of society.
Separately, Justice Brett Kavanaugh authored a dissenting opinion arguing that, as written, Title VII does not prohibit discrimination on the basis of sexual orientation (or by extension, transgender status).
Settlement agreement’s terms regarding the accumulation and payment of sick leave were clear and unambiguous, denying Treasurer’s lawsuit against her former district.
Bulgrin v. Stow-Munroe Falls City Sch. Dist. Bd. of Educ., 2020-Ohio-3348, 2020 Ohio App. LEXIS 2285.
https://scholar.google.com/scholar_case?case=9399381050947117699&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Catherine Bulgrin was the former treasurer of Stow-Munroe Falls City School District pursuant to a five-year contract commencing on Aug. 1, 2011. On March 12, 2019, she filed a complaint with the trial court asserting claims for breach of contract and declaratory relief. According to her complaint, a dispute arose between Bulgrin and the district during the course of her employment, which gave rise to the prospect of litigation between them. Bulgrin and the district undertook settlement negotiations to resolve their dispute in lieu of litigation, culminating in the execution of a settlement agreement on Nov. 5, 2015.
However, despite Bulgrin’s alleged compliance with the terms of the settlement agreement, she alleged that the district breached the settlement agreement by refusing to pay her for her accrued vacation and sick benefits, amounting to $38,622.60, upon her retirement. Consequently, Bulgrin petitioned the court to "determine the existence or non-existence of a right to payment of the accrued vacation and sick benefits in dispute," and to award her damages in the amount of $38,622.60.
The settlement agreement provided, in relevant part:
2. Effective upon execution of this Agreement, Bulgrin irrevocably resigns as Treasurer/CFO. Bulgrin's resignation will be submitted for BOE approval at the same time this Agreement is submitted for approval. It is agreed that her resignation is conditioned upon approval of this Agreement.
3. Effective upon execution of this Agreement, Bulgrin will become employed by the BOE in an advisory role to the BOE. In her advisory role, Bulgrin shall perform such duties and participate in special projects as the BOE may identify during the term of her employment. * * * It is also agreed that Bulgrin will hold the title of Consultant and that her salary and fringe benefits shall be as set forth herein. * * *
4. In consideration of the release and agreements set forth herein, upon execution of this Agreement, the BOE will pay Bulgrin in accordance with the terms of her December 20, 2010 Employment Agreement with the Stow-Munroe Falls City School District Board of Education ("Employment Agreement"). Beginning August 1, 2016, Bulgrin will utilize her vacation and sick leave benefits, consecutively, totaling 416 days, until expiration of 416 days.
Bulgrin is entitled to receive the fringe benefits set forth in the Employment Agreement from the effective date of this Agreement through July 31, 2016 * * *. Effective August 1, 2016, Bulgrin shall not receive any fringe benefits except sick leave, vacation leave, * * *, and hereby knowingly and irrevocably waives any and all fringe benefits, including but not limited to * * * the accrual of sick days, and the accrual, carry over, or payment for vacation days.
The district asserted that pursuant to paragraph 4 of the settlement agreement, Bulgrin "waived the `accrual of sick days,' as well as `the accrual, carry over, or payment for vacation days' during her four hundred and sixteen (416) days as consultant to the Board," and thus her request for payment of vacation and sick benefits that accrued during the 416-day period must fail. According to the district, "there is absolutely no reading or interpretation of this [settlement agreement] which allows for the accrual of vacation and sick days, with payment for those days at the conclusion of Bulgrin's employment as a consultant."
The trial court found in favor of the district, noting that the clear and unambiguous language states Bulgrin shall receive 416 sick leave or vacation leave days after Aug. 1, 2016. Additionally, as she is paid for these days, she waived the accrual of sick days and the accrual, carry over or payment for vacation days. Finally, the intent of the parties encapsulated in the agreement was to end their potential disputes and to fully set forth the financial remunerations Bulgrin was to receive. To argue that she continued to accrue sick and vacation leave is wholly inapposite to that intent. Consequently, the court found that the terms of their agreement may not be reasonably understood in more than one way. Bulgrin then appealed.
The appellate court found that the trial court did not err in granting the district’s motion for summary because under the unambiguous provision of the parties’ settlement agreement, Bulgrin clearly waived the accrual of sick days and the accrual, carry over or payment for vacation days. The trial court’s decision was affirmed.
Rejected territory transfer petition is returning to the state board for a determination with higher accountability standards.
Lucas v. Ohio State Bd. of Educ., 2020-Ohio-2738, 2020 Ohio App. LEXIS 1697 (Ohio Ct. App., Franklin County April 30, 2020).
https://law.justia.com/cases/ohio/tenth-district-court-of-appeals/2020/19ap-463.html
In March 2018, Megan Lucas and other residents of the Jefferson Township Local (Montgomery) School District (Jefferson) petitioned the State Board of Education for the transfer of the roughly nine square miles of school district territory from Jefferson to the Valley View Local (Montgomery) School District pursuant to Revised Code 3311.24. The Ohio Department of Education appointed a hearing officer to review the matter. In January 2019, after holding a two-day evidentiary hearing on the territory transfer request, the hearing officer issued a detailed report and recommendation. She found, among other things, that the proposed transfer area is owned by fewer than 10 families and that of the 25 or so school-age children who live there, only "four or five of these children appear to attend Jefferson schools." After critiquing Jefferson's performance and contrasting it unfavorably with Valley View's much better job on state report cards and graduation rates, she reviewed transfer factors identified in Ohio's Administrative Code and assessed the issues raised by the parties.
Jefferson submitted objections to the hearing officer's report and recommendation, reciting that the transfer would have "immense emotional and financial impact,” as well as other objections. The State Board met to consider the transfer petition on Feb. 11, 2019. By a vote of 10-7, the board then voted to reject the recommendation of the hearing officer and disapprove the transfer "in light of the persuasiveness of Jefferson Local School District's objections.” The resolution itself contained no other explanation for the board's rejection of the hearing officer's recommendation.
The petitioners appealed the State Board's determination to the Franklin County Court of Common Pleas. The trial court stated it may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative and substantial evidence and is in accordance with law or it may reverse, vacate or modify the order if an absence of evidence is determined. The court found nothing in the board's resolution that addressed or contradicted the referee's conclusion that the students would be better served by the transfer, the minutes of the meeting did not provide specific grounds for determining the rejection. The trial court reversed the order of the State Board and proceeded to grant the territory transfer request. Jefferson appealed the decision; the State Board did not.
The appellate court's review of an administrative decision is more limited. While the common pleas court must examine the evidence, the appellate court determines only whether the common pleas court abused its discretion. The appellate court found the review of the entire record that the trial court relied solely on the hearing officer's conclusions only, rather than on the fuller administrative record. The court found the board's failure to specify reasons does not mean that the board had no evidence on which it could have grounded a disapproval of the recommendations. However, because the board did not make its determination in accordance with law and because the trial court was not in a position to compare the evidentiary record to reasons specified by the board and does not appear to have conducted a full review of the administrative record, the case was remanded to the State Board for further determination.
Supreme Court of Ohio grants writ of mandamus to allow territory transfer petition on the special election ballot.
State ex rel. Cook v. Bowling Green City Sch. Dist. Bd. of Educ., 2020-Ohio-3252, 2020 Ohio LEXIS 1326, 2020 WL 3044137 (Ohio June 8, 2020).
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2020/2020-Ohio-3252.pdf
Jamie Cook, an elector (a person who has the right to vote) in the territory proposed to be transferred, was seeking a writ of mandamus ordering Bowling Green City School District Board of Education to certify the school-district-transfer proposal to the State Board of Education, together with a map showing the territory proposed to be transferred and certify the transfer proposal to the Wood County Board of Elections for placement on the ballot at the Aug. 4 special election.
In March 2020, the Bowling Green City School District received 12 transfer petitions (which it designated Petitions A through L), each relating to different territories and each seeking to submit transfer proposals to voters at the Aug. 4 special election. The petitions involved proposed transfers to five different school districts. The school board forwarded the petitions to the elections board, which certified that 11 of them contained sufficient valid signatures.
After receiving the certified proposals back from the elections board, the school board forwarded them to a title agent to obtain an opinion as to whether the territory proposed to be transferred was adjacent to the transferee district in accordance with Revised Code (RC) 3311.242(B) and whether the proposed transfer, if approved by voters at the election, would create a noncontiguous school district in violation of RC 3311.06(B).
On April 21, after receiving the opinion of its title agent, the school board certified seven of the proposals to the elections board for placement on the Aug. 4 ballot. It voted to take no action on three of the proposals, because it believed the territories proposed to be transferred were not adjacent to the transferee districts. And it voted to take no action on the remaining proposals — Petition L — because it believed it would create a noncontiguous school district. Petition L was the original version of the petition at issue in this case. According to the school board, the map included in Petition L showed a small, triangular parcel that would become an island unconnected to the rest of the Bowling Green City School District upon the effectuation of the proposed transfer. After the school board voted to take no action on Petition L, its backers circulated a new petition — Petition M — with an amended map.
RC 3311.242(B)(2) requires transfer proposals to be certified to the board of elections no later than 90 days before the election at which the proposal is to appear on the ballot. For the Aug. 4 election, the certification deadline was May 6. Petition M was submitted to the school board on April 24, 12 days before the deadline. On May 1, the school board adopted a resolution certifying the petition to the elections board to check the sufficiency of the signatures, noting the May 6 deadline. The school board conveyed the petition to the elections board on Monday, May 4. On May 5, the elections board certified that the petition contained a sufficient number of valid signatures. The school board then forwarded the proposal to its title agent to seek her opinion on whether the proposal would create a noncontiguous school district, but the title agent was not able to review the proposal until the next morning. On May 6, she informed the school board of her opinion that Petition M was legally compliant. On May 8, the school board held a special meeting at which it certified the Petition M transfer proposal to the elections board for placement on the ballot. However, because less than 90 days remained before the Aug. 4 special election, the school board's resolution stated that the proposal was certified for placement on the ballot at the Nov. 3, 2020 general election.
Cook argued that RC 3311.242 grants no discretion to the school board and instead imposed a mandatory, ministerial duty to promptly certify transfer petitions and proposals to the board of elections. The school board argued that the case does not involve a purely ministerial act and that before certifying the proposal to the elections board, it had the authority to determine whether the proposal violated RC 3311.242(B) and whether the proposed transfer would result in a violation of RC 3311.06. The court agreed with Cook that the timetable for certifying Petition M was undoubtedly short, however, the evidence established that the school board could have completed both required certifications in the time available in this case but for its attempt to enforce RC 3311.06(B) in contravention of the express mandates of RC 3311.242.
The court granted the writ of mandamus and ordered the school board to certify Petition M to the board of elections for placement on the Aug. 4 special election ballot. Lastly, the court denied the writ of mandamus to the board of elections, because the elections board did not fail to take action on a resolution certifying the proposal for placement on the Aug. 4 ballot.